Poole v. Anderson

Fowler, J., delivered the opinion of the Court. This is an appeal from the Orphans’ Court of Baltimore City, and the only question presented is whether the sale of certain real estate already made and reported to that Court shall be ratified, or whether it shall be set aside and the property resold in order that- the trustee under the will shall join the executors in executing the power of sale conferred by the will of the late Thomas D. Anderson of Baltimore City. The solution of this question depends entirely upon the construction of the will. If the doubt now suggested existed when the sale was made by the executor alone, it is to be regretted that the trustee under the will was not joined in executing the power of sale for the sake of avoiding the delay and expense of this litigation.

But as the question is presented we. must dispose of it, and we will do so briefly. By the first clause of the will, and indeed generally ‘wherever the testator gives authority or power to the executor over the real estate, he appears to have joined the trustee with the executor. Thus, in the first clause, “ I give, devise and bequeath to my executors and trustees, &c., all my estate, real, personal, &c., with full power and authority to do whatever may be proper and necessary in the performance of the duties hereby imposed on them, either in effecting sales * * * or otherwise.” And in the eighth clause, his “ executors and trustees ” are authorized to