Alther v. Barroll , 22 Md. 500 ( 1865 )

Goldsborough, J.,

delivered the opinion of this Court.

Jacob Alther, late of Baltimore County, deceased, died in July 1846, seized and possessed of a tract of land in said county, containing 145 acres, leaving a last will and testament, by which he bequeathed to the appellant a legacy of $50, and left other moneyed legacies to parties named in his will. The testator further provided as follows: “I give and devise unto my son, William Alther, all my estate, both real and personal, my sword and pistol, to him and his heirs forever, who is to pay all my just debts, and all the foregoing named legacies, and must find his mother, Ann Alther, a comfortable living on the farm they now live upon, during her single life, and also to find a home for his sisters during their single life; and also William Alther has to give to his mother one third of the produce on the farm during her single life, after my death.”

William, the devisee, was also appointed sole executor. As devisee, he took possession of the tract of land devised to him, and between the years 1848 and 1851, sold the same in parcels to the appellees. In the deeds conveying the land, William Alther and wife, and Ann Altlier, the mother, united as grantors. The appellant united in the deed to Jacob Wisner, for the remaining fifty-five acres.

At the time of the death of Jacob Alther, the testator, the appellant lived with her mother and William Alther, on the farm devised to him; and she alleges in her bill of complaint, that soon after her lather’s death, her brother refused to allow her to remain on the farm, or have a home thereon, although by the provisions of the will, he was required to find a home for her during her single life. She therefore charges that though the land devised, has been sold, her right to have a home, is a charge upon the land, and the present owners thereof, are bound to see to the application of the funds arising from the sale, so that the provisions of the will in her behalf, may be gratified.

As the purchasers of this tract of land are the only defendants, we think this case may be disposed of by a determination of the two following questions: 1st. Had William Alther the legal right to sell and convey the land as devisee under his father’s will? 2nd. Were the purchasers bound to see to the application of the purchase money, so that all the provisions of the will should be gratified?

We entertain no doubt that William Alther, as devisee, having the legal estate in fee, and under the will, had full power to sell, especially as he took the estate subject to and charged with the payment of all the testator’s debts, and also the legacies named in the will, gee Lewin on Trusts, 380, 381, 382 and 383.

We are equally decided in opinion, that the purchasers were not bound to see to the application of the purchase money. The primary charge on the land is for the payment of all the testator's debts. The purchasers had access to the will, and finding such a provision, it was not incumbent on them to ascertain who were the creditors of Jacob Alther, and what was the amount of their respective claims; this was a matter of trust involving long accounts, requiring the production of vouchers, which the purchasers would have no right to require. See Lewin on Trusts, 316, and the cases there cited. In Johnson vs. Kennett, 6 Simons, 384, it is expressly directed that: “Where debts are charged generally or when debts and legacies are charged generally, the purchasers of real estate are not hound to see to the application of the purchase money.” See also Potter vs. Gardner, 12 Wheaton, 502. Eng. Ch. R., 206, note. We think it follows as a necessary consequence, that as the debts are a primary charge, whatever rights the appellant had under her father’s will, being voluntary and postponed to the rights of creditors, if there was no obligation on the purchasers to see to the application of the funds, as to creditors, there could be none in favor of those whose rights were thus postponed.

(Decided February 3rd 1865.)

We think the point made by the appellant’s counsel, that the sales made by William Alther are subject to the the provisions of the Act of 1831, ch. 315, is not tenable. This Act is strictly confined to sales made by executors authorized to sell. In this case, William Alther is both devisee and executor. No power of sale was conferred on him as executor; on the contrary, the legal title was given to him as devisee, and he was expressly charged to pay the debts of the testator. He took the trust coupled with an interest, whereas the power to sell real estate conferred on an executor, is a naked trust, for the fulfilment of which he is subject to the control of the Orphans’ Court, under the provisions of the Act of 1831.

Decree affirmed, with costs to Appellees.