Probert v. Garrett, Exec.

¹⁹⁰ Henderson, J., delivered the opinion of the Court. This appeal is from an order of the Orphans’ Court for Montgomery County ratifying a sale of certain real estate sold by an executor over objections raised by two of the legatees, the appellants here. They contend that the executor failed to use due diligence in effecting the sale, and that the price obtained was inadequate. The will in question authorized and directed the executor to sell all the testator’s property “at public or private sale at such price as he shall consider adequate, without application to or order of any Court * * The executor named, Mr. Garrett, was an attorney, a member of the bar of the District of Columbia, but not of Maryland.

He had been the business and professional adviser of the testator for twenty-five years, and was familiar with land values in and about Washington. The principal real property owned by the testator is a parcel of land in North Takoma Park, Maryland, containing about 4.1 acres. Although the tract is zoned single-family residential, it is located about 500 feet from a commercial zone, and near other properties zoned for multifamily occupancy. It had on it an old dwelling and greenhouse (which was sold and removed), but it was most valuable as building sites.

Following the death of the testator, the executor was granted letters on May 21, 1957. The property was appraised by the official appraisers at $54,000. On May 27, 1957, the executor obtained an independent appraisal in the amount of $50,000. He then communicated with a number of real estate brokers, offering the property for sale.

It was shown that he wrote more than 100 letters to various brokers, made numerous phone calls, and was active in showing the property. Thereafter, he negotiated a sale to Park Offices, Inc. for $85,000, contingent upon the property being rezoned from single-family residential use to multi-family use. However, the application for rezoning was finally denied by the County Council in November, 1958. Thereupon, the executor again listed the property for sale with a number of brokers, and on March 20, 1959, received a firm offer of $50,000 from ¹⁹¹ Van Vleck Properties, Inc., which he accepted.

This was by far the best offer he had received for the property, as zoned, the best previous offer being $40,000. It may be noted that one of the appellants, a legatee, twice submitted bids at figures below $40,000. The appellants rest their claim of a lack of diligence on the following facts: that when the property was first offered for sale, the executor communicated with a Mr. Casey who represented the B. E. Saul Co., a real estate and mortgage investment firm. A letter from this company to the executor stated that their preliminary study indicated that the property might be subdivided into fourteen (14) lots which “should be worth up to Sixty Thousand Dollars if offered on the market as a packaged deal to a builder including all financing for purchase and construction.” No offer was submitted at that time.

Mr. Casey testified that he told Mr. Garrett that if the property had to be sold “subject to the order nisi procedure of the Maryland Courts”, B. F. Saul Co. would not be interested. Mr. Garrett replied that it was offered on that condition. Although he had worked with brokers in Prince George’s County for some years prior to his association with B. F. Saul Co., Mr. Casey was under the impression that this meant that, even after the signing of a contract, new bidders could “come in” on the day set for ratification and “overbid the property by ten per cent,” which was the practice in the District of Columbia, but is not the practice in Maryland. See Blank v. Frey, 165 Md. 647, 650 , and Cook v. Safe Dep. & Tr.

Co., 172 Md. 398, 405 . The record does not show that this misconception was shared by the executor. However, the executor testified, on cross-examination, that he was not then aware that under Code (1957), Art. 93, sec. 327, a sale of real estate could be ratified without an order nisi if “all parties in interest are sui juris and their consent is given to such immediate ratification.” This provision was called to his attention by his law partner some time later, and he did in fact recite in his report of the sale to Park Offices, Inc., that all the legatees under the will consented to the $85,000 sale and asked immediate ratification, subject to