Alexander v. Fidelity & Deposit Co.

Citations

• 70 A. 209
• 108 Md. 541
• 1908 Md. LEXIS 89

Syllabus

<p>Unauthorised Sale of Property by an Executor — Notices of Breach of Trust — Invalid Assignment of Mortgage — Surety on Bond of Executor Paying Loss Subrogated by Agreement to% Right of Parties in Interest.</p> <p>The executor of a will invested funds of the estate in a mortgage, and afterwards sold the same to A without any order of Court authorizing the sale, and he executed the assignment of the mortgage as executor of the designated testator. A acted in good faith and paid the face value of the mortgage. The executor died insolvent, after having wasted all the assets of the estate. Held, that the assignment to A, being made by the executor as such, was notice of the fact that the mortgage was held under the provisions of the will, and that A acquired no title to the mortgage, since Code, Art. 93, sec. 282, provides that no executor or administrator shall sell any property of his decedent without an order of the Orphans’ Court previously had and any sale made without a previous order of Court, shall be void, and no title shall pass thereby to the purchaser.</p> <p>Held, further, that the fact that the mortgage had not been owned by the testator but was only purchased with the funds of his estate, does not exempt the sale from the operation of the statute, since the investment was merely a change in the form of testator’s property.</p> <p>Held, further, that a mortgage is property within the meaning of the said statute.</p> <p>A will directed the executor to keep the testator’s estate invested during his widow’s life and to pay the income to her. A surety company executed a bond conditioned for the faithful performance of his duties by the executor. An order of the Orphans’ Court authorized the executor to invest a certain sum of money in a designated mortgage, which was accordingly done, the mortgage being assigned to him as executor. Afterwards the executor assigned this mortgage to a third party without an order of the Orphans’ Court, received payment therefo