Montgomery v. Williamson

Alvey, J., delivered the opinion of the Court. The petition in this case was dismissed by the Orphans’* Court, as stated in the order, for want of jurisdiction in the premises. No testimony was heard, in reference to the controverted facts; and the only question presented on this appeal is, whether the Orphans’ Court had jurisdiction to hear and determine the subject-matter of the petition, assuming the facts to be true, as therein stated. ⁴²⁷ The contract of' sale and purchase, as evidenced by the report of the executrices, required the purchaser to pay one hundred and seventy-five dollars per acre, “for every acre the said tract of land contained.” The report further states, that, since the sale, the land had been surveyed, “in the presence and under the direction of the purchaser,” and was found to contain one hundred and twelve and a half acres, as by the report of the surveyor was shown. It is now alleged by the petitioners that they have recently discovered that there was an error in the survey, and that instead of one hundred and twelve and a half acres, as was formerly supposed, the tract in truth contains one hundred and twenty-three acres and twenty-six square perches; and that this fact they can and are ready to prove and demonstrate.

They, therefore, ask that the order of ratification be opened, and that they be allowed to amend their report of sale, so as to make the same conform to the truth in the particulars mentioned. The power of the Orphans’ Court over the subject-matter is derived from section 280 of Article 93 of the Code, as slightly modified and extended by the Act of 1865, chapter 51. By the statute, the executor, in the cases contemplated, is bound to account to the Orphans’ Court for the proceeds of the sale of the real estate sold by him, in the same manner as for the proceeds of sale of the personal estate, and his bo'nd is declared to be answerable for such proceeds of the real estate “to the same extent as if it were personal estate in his handsand it is also provided that such sale of real estate “ shall not be valid or effectual, unless ratified and confirmed by the Orphans’ Court,” after notice given in the manner practised in cases of sales of land, under decrees in equity. In this case, though the sale as reported was finally ratified, no deed has yet been made to the purchaser.

The great object in conferring this power of ratification upon the Orphans’ Court, was, doubtless, the protection ⁴²⁸ of the estate, the prevention of fraud and collusion, and tosecure entire fairness in the sale; and seeing that the entire proceeds of sale are to be accounted for to the Orphans’ Court for distribution under their direction, it is difficult to perceive why that tribunal has not jurisdiction to aid and enforce that duty. If it be true that the proceeds of eleven acres of the land sold remain to be accounted for, why may not the Orphans’ Court compel the executrices to account, and if the previous order of ratification, founded upon an erroneous report, as now