It is therefore perfectly clear that the only appeals to the circuit courts under section 21, which alone provides for appeals by the owners of property to the court, are on the grounds, either that the party to whom it is assessed is not the owner, or that the property is exempt. That act does not in any way suggest the right of any one to appeal to the court on the ground that the valuation is too high; but, on the contrary, it does just what prior general assessment laws have done-leaves the valuation of the property to the assessors, subject to the review of the board of control and review. It would undoubtedly greatly and unnecessarily add to the labors of the courts if they had the power and were required to review valuations when general assessments were made; but, so far as we are aware, that has never been attempted by the Legislature of this state. In most cases, it could perhaps be more satisfactorily done by business men than by judges.

[3, 4] But it is contended that chapter 430 of the acts of 1910 gives such right of appeal. We cannot, however, agree with that contention. It is true that that act was approved by the Governor four days after chapter 300, but it is perfectly manifest that it was not intended to make the circuit courts boards of control and review, and this court the final board, to determine valuations of properties, made under the general assessment contemplated by chapter 300, or any other general assessment law. It would be impracticable, if not impossible, for the courts to so act and attend to their regular duties, and the various provisions of chapter 300 negative such an idea. In the first place, we have seen what are the grounds upon which an interested party can go into court, and there is no suggestion of the right of appeal on account of the valuation, but it is excluded as effectually as if it had in terms been denied. The circuit courts could have no possible right to review and change such valuation, unless the statute in express terms or by necessary implication conferred such right, and that has not been done. In thus speaking of it, we are leaving out of consideration the question whether the Legislature could require the judges of those courts to perform such services.

The assessments made under chapter 300 (and those involved in this case were) are first made by the assessors, and then are subject to review by the board of control and review. When the latter complete their work --in other words, when all the property in the county has been assessed, or is supposed to be they turn the books, etc., showing the amount of the assessment on each property, with the names of the respective owners, etc., over to the county commissioners, and, although the same individuals compose the two boards, their duties are as separate and dis

they act, as if they were different individuals. The county commissioners, as such, take no part in fixing the valuations on the properties in the county, and it is only after the assessment is completed and the books are turned over to them that they have anything to do with the assessment, beyond the appointment of assessors, etc.

The petition in this case shows that the increase in the valuation was made by the county commissioners, sitting as a board of control and review, and the appeal taken by the appellant was to the board acting in the same capacity.

Chapter 430 of the Acts of 1910 added section 17a to article 81 of the Code. It provides that: "Any person or persons, or corporation, claiming to be aggrieved because of an assessment made by county commissioners of any one of the counties of this state, or because of the failure to reduce or abate an existing assessment, may, by petition, appeal to the circuit court of the county in which said property is situated." It then goes on to provide that all of the directions set forth in section 17 of that article, relating to the taking, prosecution, and determination of the appeals thereby authorized to the Baltimore city court, shall be applicable to the proceedings in the circuit courts for the counties. Section 17 of article 81 provided for an appeal to the Baltimore city court by any one aggrieved by an assessment of the appeal tax court of Baltimore city, or because of the failure to reduce or abate an existing assessment, and the intention of the Legislature evidently was to extend the same provisions to the counties, which theretofore had been confined to Baltimore city. very language of the statute shows that the failure to reduce or abate, at which a party might feel aggrieved, was "the failure to reduce or abate an existing assessment," not some assessment which was in process of being made, as this was until completed by the board of control and review. The other ground for appeal to the court was "because of an assessment, made by county commissioners of any of the counties of this state," and what we have already said is sufficient to indicate that in our judgment this valuation was not made by the county commissioners, as such, but by the board of control and review; and hence it cannot properly be said that this proceeding can be entertained under chapter 430 of the Acts of 1910.

Section 17a concludes by saying, "none of the provisions of this section shall apply to assessments made under the act of 1896, chapter 120." We do not regard that of any particular significance. It certainly was never intended to mean that section 17a was not to be subject to the act of 1896, c. 120, but was to be subject to chapter 300 of the Acts of 1910, which was intended as a substitute for the act of 1896, in so far as the general

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chapter 300 of Acts of 1910 provides that there shall be an entire revaluation and reassessment, for the purposes of taxation, of all the property, real, personal, and mixed. subject to taxation under existing laws, in all the counties of the state, except Somerset and Worcester, "and such an entire revaluation and reassessment are hereby ordered and required to be made." As when chapter 430 was introduced the act of 1896 was the last general assessment law, it was doubtless supposed to be wisest to expressly except it, but, even if the county commissioners had assessed this property in 1910, or at any time before the new general assessment was combefore the new general assessment was completed, by the very terms of the act, it would have been required to be revalued and reassessed according to chapter 300.

Much more might be said, but it seems to be perfectly clear that chapter 300 was providing for the general assessment of all property in the counties of the state, excepting the two named, and that any assessment made under it was governed by its provisions, and that the assessment, reduction, and abatement spoken of in chapter 430 referred to such only as can properly be made by the county commissioners, from time to time, and not such as assessors and boards of control and review make, when there is a new general assessment.

As we do not regard the ruling on the demurrer in such a case as this a final order from which an appeal can be taken, we will dismiss the appeal.

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questions of law or fact presented by the pleadings or evidence.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 837.*]

4. TRUSTS (§ 191*)-POWER OF SALE-TESTAMENTARY TRUSTS-IMPLIED POWER.

The existence of expressed powers of sale in a testamentary trust would not necessarily negative an implied power of sale of other property.

Dig. §§ 82-98; Dec. Dig. § 191.*] [Ed. Note. For other cases, see Trusts, Cent. 5. TRUSTS (§ 191*)-TESTAMENTARY TRUSTS—

IMPLIED POWER OF SALE.

An implied power of sale in a testamentary trust must be derived from the language of the will, which necessarily implies its exercise, or where it is essential for carrying out testator's purposes or he intended that such power exist.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 82-98; Dec. Dig. § 191.*]

6. TRUSTS (§ 191*)-TESTAMENTARY TRUSTSIMPLIED POWER OF SALE.

A will, after devising property in trust to pay the income to testator's widow, provided that the property should be held in trust; in the second place, to invest the net surplus in good securities, to be held in trust for the same purposes mentioned, and "in like manner to invest the proceeds of the sale of any real estate or leasehold or personal property that may be sold by them." The will also expressly authorized the sale of certain property by the trusthe sale by the trustees of property other than tees. Held, that the will impliedly authorized that expressly authorized.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 82-98; Dec. Dig. § 191.*]

7. TRUSTS (§ 197*)-POWER OF SALE-EXERCISE VALIDITY.

116 Md. 211)

PRESTON v. SAFE DEPOSIT & TRUST CO. et al. (Court of Appeals of Maryland. June 24, 1911.)

1. TRUSTS (§ 1932*)-TESTAMENTARY TRUSTSPOWER TO ORDER SALE.

A decree for the sale of property, devised in trust, upon future applications, when it should appear that such sales would be advantageous, was not authorized under the Act of 1868, c. 273, it being essential under that statute that the advantage appear to exist at the date of the decree; and it might be legitimately inferred that a sale was not beneficial when the decree was made, as required by the statute, where the trustee did not make a sale until 15

years thereafter.

[Ed. Note. For other cases, see Trusts, Dec. Dig. § 1932.*]

2. TRUSTS (§ 177*)-EQUITABLE JURISDICTION. The supervision of the administration of trusts is a well-recognized ground of equity jurisdiction.

[Ed. Note.-For other cases, see Trusts, Dec. Dig. § 177.*]

3. APPEAL AND ERROR (§ 837*)-FINDINGSCONCLUSIVENESS IN EQUITY. The Court of Appeals is not bound by the allegations of a bill, whether they be of fact or conclusions of law, but may inquire into all

ity, though he does not profess to exercise that authority in doing the particular act, so that the fact that the testamentary trustee sold the trust property under a decree of court based upon statutory authority, which was erroneous because the statute did not authorize sales made in the future as it appeared advantageous, did not prevent the trustee from making good title, where he in fact had an implied power of sale under the will, but did not purport to act thereunder.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 252-257; Dec. Dig. § 197.*]

Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump, Judge.

Suit by the Safe Deposit & Trust Company, trustee, and another, for the sale of property under a testamentary trust. From an order overruling exceptions to a sale made to Herbert R. Preston, he appeals. Order

affirmed.

Argued before BOYD, C. J., and PEARCE, BURKE, URNER, and STOCKBRIDGE, JJ. Herbert R. Preston, pro se. D. K. Este Fisher, for appellees.

STOCKBRIDGE, J. The case comes before the court upon an appeal from an order of the circuit court No. 2 of Baltimore City overruling the exceptions of the appellant, filed to a sale reported as made to him, of

The exceptions, four in number, all turn upon two questions: the power of the circuit court No. 2 to decree the sale of the property under which decree the sale of "Belle Grove" purports to have been made; and whether or not there was an implied power of sale contained in the will of the late Darius C. Howell.

A concise statement of certain facts will aid in reaching a correct conclusion. Darius C. Howell died in the year 1887, leaving a last will and two codicils, executed in conformity with the statute, for the passing of both real and personal property. The will is quite long, but the essential features of it may be briefly summarized. The first clause bequeaths certain personal chattels and furniture to his wife, Katherine E. Howell. The second clause gives to her during her widowhood his residence in Baltimore City, and his country residence, "Belle Grove," and further provides that upon her second marriage or death the same should constitute a part of the residuum of his estate. By the third clause he gave a half interest in certain property in Baltimore City to a granddaughter, Edith Howell, for life, with remainder to her children and descendants, her surviving, with cross-remainders among them, and, in default of such descendants or their death within a named period, then to another granddaughter, Florence, for life, with remainder in like manner to her children and descendants, and in default thereof the same to constitute a part of the residuum of his estate. The fourth clause of the will contained similar provisions with regard to the granddaughter Florence. The fifth or residuary clause of the will devised and bequeathed the balance of his estate to certain named trustees, for whom the present appellee was substituted as trustee by the first codicil to the will. The trusts created by this clause were to provide an income for his wife, Katherine E. Howell, of $15,000 per annum, during her widowhood and for the support and education of his child or children, with a further provision that if his widow should remarry her income should be reduced to the sum of $6,000. The will further provided for the payments over to the testator's children upon their attaining a certain age, and that in case all of the testator's children should die under the age of 20 years, without leaving issue living at the time of his or her death, then the residue should be divided between the two granddaughters already named and the testator's brothers and sisters, and their heirs, executors, and administrators in such shares as his widow, Katherine E. Howell, should appoint by her will, and, in the event of the failure of his widow to exercise such testamentary power of appointment, then for division, one half to the two grand

In 1895 the Safe Deposit & Trust Company, the trustee under the will, and Katherine E. Howell, the widow, filed the bill of complaint in this case, in which there were made as parties defendants all persons then in esse who had, or who might have or be entitled to, an interest under the terms of Mr. Howell's will, and who then numbered approximately 100 persons, many of them nonresidents. The bill was manifestly intended to be filed under the act of 1868, for it alleges that the relief sought will be to the interest, benefit, and advantage of all persons concerned, and further alleges "that there is no power vested in said trustee to dispose of any of said property other than the property on Charles Street avenue and only that property in the manner and on the terms mentioned in his will." The relief prayed in the bill was that the court should assume general jurisdiction over the administration of the trusts created by said will, and of all the estate of the testator, and that a decree might be passed for the sale or lease of the property or such parts thereof as the court may decree to be sold and at such times and upon such terms as the court might from time to time direct; that a certain exchange with Blanchard Randall for the straightening of lines be ratified, and for general relief. The case proceeded to decree, which was passed on the 24th of February, 1896, and by which, in consonance with the relief prayed in the bill, the circuit court No. 2 of Baltimore City assumed "general jurisdiction over the administration of the trusts under the last will and testament of Darius C. Howell, late of Baltimore county, deceased, and the codicils thereto, and of all the property and estate of said testator," and decreed that the trustee should thereafter administer the trusts created by said will under the direction of the court. It also contained the following clause: "And it is further adjudged, ordered, and decreed that all the property and estate of said testator be sold or leased in such parts and in such manner and at such times as the Safe Deposit & Trust Company of Baltimore, which is hereby appointed trustee to make said sales or leases, may deem most advantageous to the persons beneficially entitled, but subject to the ratification and approval of this court."

About fifteen years elapsed from the passage of this decree until the report of the sale which gives rise to this appeal, and it is now contended by the appellant that the circuit court was without power to pass such a decree as it did, and reliance is placed upon the decision of this court in the case of Ball v. Safe Deposit & Trust Co., 92 Md. 503, 48 Atl. 155, 52 L. R. A. 403. In that case a decree was held to be objectionable which authorized sales to be made from time to

Md.)

to the court as occasions might arise, and whenever it should appear to the court that such sales would be advantageous, for the reason that to conform with the statute the advantage must appear to exist at the date of the decree.

[1] That in this case it was not so beneficial at the time when the decree was passed is a legitimate inference from the fact that the trustee allowed 15 years to pass after the date of the decree, before the sale now in question was reported, and so far as that decree was predicated upon the Act of 1868, c. 273, it was open to the identical objection with the decree in the Ball Case, supra.

[2] The supervision of the administration of trusts is a well-recognized ground of equity jurisdiction, and so much of the decree as assumed jurisdiction over the administration of the trust estates created by the will is not open to any legitimate criticism.

The bill had alleged the nonexistence of any power of sale in the will except for a designated piece of property on property on Charles Street avenue, which was not this lot, or for certain specified purposes, and the present is undoubtedly not one of such purposes.

[3] But this court is not and cannot be bound by the allegations of a bill, whether they be of fact or conclusions of law. It can properly inquire into all questions of fact or law properly presented by the pleadings or evidence. It is therefore in the present case fully within the province of this court to examine and determine whether the will of Darius C. Howell contained any power of sale other than those expressly declared and already alluded to.

[4] It was suggested, rather than urged, in the brief of the appellant, that the existence of express powers would operate to negative any implied power of sale. This is not the law. In the case of Hamilton v. Buckmaster, L. R. 3 Ch. 323, where a testator by the terms of his will directed the sale of all his personal estate, the power of sale was held to extend to a freehold estate owned by him at the time of his death, where the exercise of such power was necessary for the purpose of carrying out the trust created by the will, and in Corse v. Chapman, 153 N. Y. 473, 47 N. E. 812, a testator had given an express power of sale of his unimproved and unproductive real estate; but that fact was held not to destroy an implied power of sale of his productive real estate.

[5, 6] The next question to consider is whether there was or was not any implied power of sale in the will of 'Darius C. Howell. That no particular form of words is required to constitute an implied power of sale has been too often held to call for the citation of any authorities. Such a power, if it exists, must be derived either from language in the will, which necessarily implies its exercise, or where the use of such a power is essential

525

to the carrying out of the objects and purposes of the testator, as in the case of Harrison v. Denny, Trustee, 113 Md. 520, 77 Atl. 837; or where it is manifest from an examination of the entire will that it was the intent of the testator that such a power should be rested in and exercised by his executor or trustee. The doctrine of implied powers of sale has been carefully considered by this court in the recent case of Schloendorn et al., Trustees, v. Schmidt, 80 Atl. 309, decided at the January term, 1911; and all that is requisite in the present case is to consider the doctrine as there laid down as applicable to the facts presented by the record in this case.

In the residuary clause of the will of Mr. Howell, after making the provision for the income of his widow, occurs the following clause: "And in trust, in the second place, after making the payments hereinbefore in this item of my will directed to be made, to invest the net surplus of the income of the property mentioned in this fifth item, or residuary clause, in good, safe securities, always giving the preference to ground rents paying six per centum per annum on the amount of the purchase money therefor, or real estate paying a like per centum, clear of taxes and expenses, to be held in trust for the same uses and purposes mentioned in this item, and in like manner to invest the proceeds of the sale of any real estate or leasehold or personal property that may be sold by them." It is to be observed that the term "in like manner to invest the proceeds of the sale of any real estate of leasehold" property is not limited either to the Charles Street avenue property, or to any balance which may be left, or arise from the sale of property sold for the purpose of paying a deficiency in the income of his widow. It is therefore broader in scope and effect than either of the cases in which express authority is given for the making of sales. The many and varied character of the trusts in the will are such that it cannot be seriously said that there are no active duties for the trustee to perform, and the very terms of the will necessarily provide a point where the duties of the trustee will involve a division of the estate, to accomplish which a sale of much, if not all, of his property will be inevitable. The present case therefore comes distinctly within the line of adjudications which sustain the existence of the implied power of sale in a trustee. Schloendorn v. Schmidt, supra; Smith v. Haynes, 202 Mass. 531, 89 N. E. 158; Varick v. Smith, 69 N. J. Eq. 505, 61 Atl. 151;. Wood v. Lembcke, 72 N. J. Eq. 651, 66 Atl. 903; Casselman v. McCooley, 73 N. J. Eq. 253, 67 Atl. 436; Salisbury v. Slade, 160 N. Y. 289, 54 N. E. 741; In re Curtis, 26 R. I. 580, 60 Atl. 240; Boston Safe Dep. & Tr. Co. v. Mixter, 146 Mass. 103, 15 N. E. 141.

The authority given "to invest the proceeds of sale of any real estate" at once differentiates the present from the cases of Ball