#### In the Matter of the Estate of Thomas Dorney, a Lunatic. Appeal of Isidor Rayner.

*Construction of sections*79, 83 *and*86 *of Article*16 *of the Code relating to the Jurisdiction of Courts of Equity, in the matter of Sales of the Beal estate of a Lunatic—Taxes due by the Estate of a Imnatic.*

Section 79 of Article 16 of the Code gives to a Court of equity full power and authority to make such orders and decrees respecting the persons and estates of a lunatic as the Court may deem proper; and if it stood alone, there could be no question of the power of the Court, in all cases, and in any manner, to decree a sale.

By subsequent sections of the same Article, directing how, and in what manner, this great power shall be exercised in *some*cases, certain safe-guards are thrown around the procedure, not for the purpose of restricting the jurisdiction of the Court, but for the purpose of enabling it to act more advisedly.

In section 83 it is provided, that in cases of application to sell the real or personal property of the lunatic, he shall appear and answer by guardian appointed by the Court, and proof shall be taken as in other chancery cases, &c., before such sale. By section 86 of the same Article (16th,) it is provided, that in all cases where a trustee has been appointed by the Court for the management of the person and estate of the lunatic, the Court may decree a sale of so much of his property as may be necessary for his support, or for the payment of all reasonable expenses which said trustee may have incurred. Held :

1st. That it could hardly have been contemplated by this 86th section, that before the Court could order a sale of any of the property of the lunatic to„pay his reasonable and just expenses, a regular chancery proceeding should be instituted, the lunatic summoned, a guardian appointed to answer for him, and proof, taken under a commission, that the expenses were just and reasonable.

2nd. That the claim of a creditor of a lunatic stands upon a different footing; and in cases where a creditor seeks to collect his debt, or enforce hie lien, an adversary proceeding, such as is prescribed in section 83 of the Code, is the proper one.

*68The trustee of the estate of a lunatic died, and a new trustee was appointed in her place, who filed his petition verified by affidavit, asking that a part of the real property of the lunatic might be sold for the payment of taxes in arrear on his property, and of a debt incurred for his support. The petition set forth the facts showing the necessity for a sale, and designated the property which the trustee deemed it most advisable for the lunatic to sell. Held :

1st. That taxes were a necessary incident attaching to the property of the lunatic, and were a part of the necessary expenses which his trustee was bound to pay.

2nd. That this petition presented a case that warranted the Court below in ordering a sale, without the formalities prescribed by section 83, of Article 16.

Appeal from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

The cause was submitted to Bartol, C. J., Stowe, G-rason, Miller, Alvey, Robinson, Irving, and Ritchie, J.

*Isidor Bayner,*for the appellant.

*William A. Fisher,*and *Charles Marshall,*for Rosenthal, the committee.

Stone, J.,

delivered the opinion of the Court.

Thomas Dorney was found upon inquisition, a lunatic in the year 1851. His sister Catherine C. Dorney, was appointed his committee and continued to act as such until December, 1881, when she died, and in January, 1882, Jacob S. Rosenthal was appointed committee in her place.

Soon after his appointment, Rosenthal filed a petition in the Superior Court of Baltimore City, stating that the property of the lunatic consisted of an annuity of $18, some store and dwelling houses in the city, and an un*69improved lot on Linden avenue, Baltimore. The petition further stated that there was due to the Sisters of Mount Hope, where the lunatic was confined, three hundred dollars, and that there was due for taxes in arrear on the property of the lunatic, upwards of two thousand dollars, and which taxes the collector was threatening to enforce the payment of. He also stated that the lunatic had no money to pay these pressing claims, and prayed that the Court would order a sale of the unimproved lot for the purpose of paying them. The petition was verified by affidavit of the committee, and the tax bills and a letter from the collector were made exhibits.

Upon this petition the Court ordered the sale of the lot on Linden avenue, which was duly advertised and sold to Rayner the appellant, and the sale reported to the Court. The appellant fearing that he might not obtain a good title, excepted to the sale, but the Court ratified it, and Rayner has appealed.

The only question presented to us for decision on this appeal, is whether a Court of equity has the rightful power in this case to decree a sale of a part of the real estate of the lunatic to pay these claims, upon the application of his committee, and the presentation of a *prima facie*case, and without going through the formalities prescribed in the 83rd section of Art. 16, of the Code, or in other words, whether the said 83rd section is applicable to this case ?

The 79th section of Art. 16, of the Code, gives to a Court of equity full power and authority to make such orders and decrees respecting the persons and estates of a lunatic as the Court may deem proper.

This section is as comprehensive as language can make it, and if it stood alone there could be no question of the power of the Court in all cases, and in any manner to decree a sale.

Subsequent sections of the same Article, however, direct, how and in what manner, this great power shall be exer*70cised in *some*cases. Certain safe-guards are thrown around the procedure not for the purpose of restricting the jurisdiction of the Court, hut for the purpose of enabling it to act more advisedly.

Thus in section 83, it is provided that in cases of application to sell the real or personal property of the lunatic, there shall he his appearance and answer by guardian appointed by the Court, and proof taken as in other Chancery cases, &c., before such sale.

By the 86th section of the same Article (16th) it is provided that in all cases where a trustee has been appointed by the Court for the management of the person and estate of the lunatic, the Court may decree a sale of so much of his property as may he necessary for his support or for the payment of all reasonable expenses which said trustee may have incurred. We hardly think that it was ever contemplated by this 86th section that before the Court could order a sale of any of the property of the lunatic, to pay his reasonable and just expenses, a regular Chancery proceeding should he instituted, the lunatic summoned, a guardian appointed to answer for him, and proof, taken under a commission, that the expenses were just and reasonable, before the decree for sale was passed. As the expenses of the lunatic are going on all the time, and as it would he improper in the Court to sell more of the property than would he sufficient to pay for the support and expenses of the lunatic, for the time being, the process might have to he repeated to the great cost of the estate. The custody of the person and property of the lunatic must have been already committed to the trustee before this 86th section can apply, and he, the trustee, by virtue of his appointment, is under the control and jurisdiction of the Court, and subject to its orders, and we can see no good reason why he should institute an adversary proceeding against the lunatic committed to his charge, to enable him to do what may he absolutely necessary for the lunatic’s comfort and well being, and the security of his estate.

*71This 86th Section is a codification of the Act of 1800, chap. 61, which recites in its preamble, that, whereas by existing law, the Chancellor was confined to the annual proceeds of the estate of lunatics in making provision for their support, and that it appeared reasonable that the power of the Chancellor should he increased, proceeded to authorize the Chancellor to sell such of the property as he may deem necessary for the support of the lunatic or payment of just and reasonable expenses of the trustee. This Act of 1800, did not prescribe any form of proceeding to make the sale valid, but only provided that the sale should he reported to, and confirmed by, the Chancellor.

The object of the Act appears to have been to give the Chancellor the same authority over the principal that he previously had over the income for the support of the lunatic, and the payment of expenses, and required no greater formalities in the one case than in the other, except that the sale should he ratified.

The claim of a creditor of the lunatic stands upon a different footing. As the lunatic himself cannot, after inquisition found, contract a debt, the claims of creditors must exist before the inquisition, or may consist of liens or incumbrances on his property. In cases where the creditor seeks to collect his debt, or enforce his lien, an adversary proceeding, such as is prescribed in section 83, of the Code, is the proper one.

Taxes are a necessary incident attaching to the property of the lunatic, and are a part of the necessary expenses which his trustee was bound to pay. For some reason not disclosed in the record, the former trustee seems to have permitted a large amount of these taxes to fall in arrear, and when the present trustee took charge of the person and property of the lunatic, lie appears to have found the collector about to enforce the payment of the taxes by legal process, and the Sisters of Mount Hope clamorous for the sum due them for the support of their patient.

*72(Decided 13th July, 1882.)

He filed his petition stating these facts, and designating therein what property he deemed it most advisable for the lunatic to sell for the payment of these necessary expenses, and gave his reasons therefor.

This petition was verified by affidavit, and we think presented a case that warranted the action of the Court below in ordering a sale without the formalities prescribed, by the 83rd section, of Article 16.

*Order affirmed, and cause*remanded.