McDevitt v. Bryant

Burke, J., delivered the opinion of the Court. These are appeals taken by Edward P. McDevitt and the Convention of the Protestant Episcopal Church of the Diocese of Maryland from a decree of the Circuit Court for Baltimore County, dated April 3rd, 1906. By an agreement as to facts filed in the Court below, it appears that by the second item in the last will and testament of Julia A. Myers the property involved in this controversy was devised as follows: “I give and devise all the land and improvements situate in Baltimore County and the State of Maryland' now belonging to me, and which were devised to me by the will of my father, the late John S. Stansbury, .unto Alexis Joseph Myers and Julia S. P'rary in trust for the use, benefit and, behoof of Julia M. Frary, daughter of the said Julia S. Frary, so that Julia.M. ¹⁸⁹ Frary may receive and take the rents, issues and profits thereof during her life, which are to be paid into her hands and not into another, whether claiming by her authority or otherwise, and after her death the said property to descend to her heirs absolutely according to the now existing laws of the State of Maryland, with full power to the said trustees, their successors and assigns to sell the same, or any part or parts thereof, and to execute such contracts, deeds or conveyances that may be necessary or required, and to reinvest the proceeds of any such sale or sales on like trusts as are hereby declared in reference to said property, including the power of sale and reinvestment, and with power also to said trustees, their successors and assigns to lease the said property, or any part or parts thereof for such rent or rents, and for such term or terms as they may think right and proper, and to execute such lease or leases thereof as may be necessary and required.” The personal estate of the testatrix being insufficient to pay her debts, a creditor’s bill was filed for a sale of the property, and a decree was passed in the cause appointing John S. Ensor and Howard Bryant, trustees, to make the sale. The property was sold by the trustees to the appellants, and reported to the Court, and was finally ratified and confirmed after due publication of the usual order nisi.

The trustees under .the will and Julia M. Frary, the life tenant, are parties to the cause. No exceptions were filed to the final ratification of the sales, but the purchasers refused to comply with the terms of sale and accept the property. Whereupon the trustees filed a petition in the cause praying for a resale of the property at the risk of the appellants, who resisted a resale at their risk upon the ground that a living brother of Julia M. Frary, the life tenant, was not made a party to the suit, and therefore, it is alleged, that his interest as tenant in remainder under the will of Julia A. Myers did not pass to them under the sales. The application for the resale was heard by the Court upon the petition and answer.

The Court ordered that the property be resold at the risk of the former purchasers, the appellants, unless within ten days from a service of a copy of the ¹⁹⁰ order the purchasers should pay to the