Young v. Twigg

Weisbl, J., delivered the opinion of this Court. The questions in this case have been so fully and satis ⁶⁴² factorily disposed of in the opinion filed by the learned gentleman who decided it below as Special Judge, that we are saved the labor of travelling over the ground covered by the opinion. "We concur with him, for the reasons and upon the authorities adduced, in his construction of the will of James Twigg, in the want of power in his executor to sell the lands specifically devised to the appellee William Twigg ; the want of jurisdiction in the Orphans’ Court of Allegany County to -direct or ratify the sale, by the executor, of said lands, and the consequent failure of title in the purchasers thereof; and in the relief granted by the decree whenever the cause shall. be placed in a condition for a final decree. In examining" the answer of-.Young and his cross bill, we find that he has sufficiently brought to the notice of the Court the equities he would be entitled to, in the event of the failure of his pretensions as a purchaser.

He avers in his answer that not only the personal estate of James Twigg was insufficient for the payment of his debts, but the entire residue of the real estate was not adequate to this purpose, and that it became necessary to resort to the land in -controvery. The cross-bill contains a similar averment, and that the consideration paid by him to the executor was applied in the payment of the debts; • In such a state of the case, if made 'satisfactory by proof, the appellant Young had the right to be ¡substituted in equity to the rights of creditors to the ¡¡extent of the application of the purchase money paid by him, to creditors, regard being "had to the portion of ■debts which would properly fall upon the land purchased by him, and specifically devised to William Twigg, upon ?a -proper ascertainment of the same. Young, as well as "his predecessor in the purchase, Daniels, were parties to ithese proceedings and before the Court, and sufficient ■allegations of equities having been made, ‘as already ¡stated) It was competent for the Court to do equity in ⁶⁴³ these proceedings to all the parties. We therefore think that the Court below was premature in granting the relief decreed, and that it was its duty, as a preliminary step to a final decree, to have ordered an account in such form as to have exhibited the precise amount for which Young would he substituted for creditors in reference to the lands purchased by him, to he affected by the relief prayed ; this relief to he finally granted upon his being reimbursed the amount so found, by the devisee William Twigg.

We will therefore reverse the decree of the Circuit Court for Allegany County,