Lochary v. Corrigan

Urner, J., delivered the opinion of the Court. As surviving executor of the will of Mary Calwell, late of Harford County, the appellant is invested with express authority to sell certain real estate of which the testatrix died seized. The will directed the executors, or the survivor of them, to retain the appellee in the settlement of the estate. This direction has been followed throughout the administration, which is completed except as to the sale of the real estate to which we have referred.

It was provided by the will that this property, consisting of a farm in the occu ³⁷² pancy of a brother of the testatrix, should not be sold until • his death. That event having recently occurred, the appellee prepared a petition, in the name of the appellant as executor, addressed to the Orphans’ Court of Harford County, referring to the power of sale contained in the will and praying that an order be passed authorizing the petitioner to sell the farm upon such terms as the Court might prescribe. The appellant declined to sign the petition thus prepared and presented by the appellee, who thereupon filed in the Orphans’ Court a petition in his own name which alleged his previous employment and service as attorney for the executors in the administration of the estate, as provided by the will, and the refusal of the appellant to sign the petition for an order authorizing the land to be sold, although the time for such sale, under the terms of the will, had arrived, and prayed that the appellant be summoned before the Court to fulfill his duty as executor.on pain of revocation of his letters testamentary. To this petition the appellant filed an answer, in which he admitted that he had refused to sign the petition presented by the appellee, but averred that the paper had not been prepared at his request and that the appellee had not been employed for that purpose.

The answer further stated that the services of an attorney were not needed in connection with the sale of the farm, and that the time was not then suitable for the sale. The right of the appellee to intervene in the manner and for the object we have indicated was denied by the answer. Hpon consideration of the appellee’s petition and the appellant’s answer, the Orphans’ Court passed an order directing the appellant, ■ as executor, to sign the petition, prepared by the appellee, for the sale of the farm on or before a date