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 alleged, forms an impediment to the performance of such duty by the executrices, why should the Court not remove it, by rescinding the order, and thus protect the estate, and the rights of those interested in its distribution? The purchaser certainly acquired no right under the order to be relieved from the obligation of his contract to pay a certain sum ‘1 for every acre the said tract of land contained;” and if this be so^ in deference to whose right has the order become wholly irrevocable, no matter upon what error founded, nor by whose conduct the error was produced? Under the terms of the contract, the order of ratification did not operate to preclude the right to inquire into the quantity of the land sold, and if the Court and the executrices acted upon an erroneous supposition as to the number of acres contained in the tract, it is not too late to have the error corrected, by rescinding the order of ratification, and allowing the report of sale to be amended. If this were a proceeding in a Court of Equity, the remedy would be plain, and there is no good’ reason why it should be less so in the Orphans’ Court, where the mode of proceeding is less formal and technical than in a Court of Equity.,

It seems to have been supposed that ,as there is no express authority to be found in the statute, the rescinding of the order of ratification would be the exercise of constructive authority which the Court is forbidden to exer *429 cise. But this objection is fully answered by the Court of Appeals, in the case of Raborg vs. Hammond, 2 H. & G., 42, 51, in considering the power of the Orphans’ Court to revoke letters of administration, when improvidently granted, and where to the exercise of the power, the same objection was urged as to the jurisdiction in this case. The Court said: “But to this it may he answered that we deem the power of revocation, under such circumstances, as necessarily inherent in the Orphans’ Courts, and a part and of the essence of the power delegated to them, of granting administration. In confirmation of which, see 3 Bac. Ab., 50, where speaking of the ecclesiastical tribunals of England, in reference to this power, it is stated that “it would he absurd to allow a Court jurisdiction herein, and at the same time deprive them of the liberty of vacating and setting aside an act of their own, which was obtained from them by deceit and imposition.” Whether the order of ratification was obtained by deceit and imposition is quite immaterial; if by honest mistake, the power of revocation and correction equally exists, provided the application for its exercise he made within a reasonable time, and under proper circumstances.

(Decided 20th February, 1873.)

Whether the order of ratification should he disturbed, will, of course, depend upon the evidence tfiat may he produced by the petitioners, as it will be incumbent upon them to establish the facts stated, in order to entitle them to have the order vacated or opened for an amendment of their report.

Order reversed ■ and cause remanded.