Knight v. Nottingham Farms, Inc.

Henderson, J.,

filed the following dissenting opinion.

I cannot escape the conclusion that the facts in the instant case bring it within the rule so clearly restated in Gilden v. Harris, supra, (p. 42) that a reported sale is provisional only “for the purpose of saving the beneficiaries of a trust from improvidence, unfairness, or fraud.” Subsequent possibilities of obtaining a higher price do not alone furnish sufficient ground for setting aside the sale made.

The opinion is rested on a lack of diligence on the part of the executors, there being no claim of fraud or bad faith. It is admitted that it was not incumbent upon the executors to try to acquire a right of way to the property, to determine its exact acreage, or to post signs *79 on the property. Yet it is intimated that they should have advertised the property, obtained expert advice as to its value, and have gone back to Mr. Nicholson after receiving the higher bid from the appellee. As I read the record, it would seem that the only persons who might be interested were the contiguous owners, since no one else would have access to the landlocked property, and after Nicholson had stated definitely that the deal was off, and his bid withdrawn, I think the executors were justified in accepting the bid of the appellee. Moreover, the extent of the sand and gravel deposits, which alone gave value to the marshy land, was problematical, and I question whether the executors were under duty to expand the considerable sums necessary for a geological survey. Listing the property with real estate brokers would not accomplish any useful purpose, in the absence of reliable statements as to its intrinsic value for a very special purpose. Certainly there is nothing in the record to show that the price was inadequate, except the fact that Langenfelder belatedly increased his bid. Cf. Kramme v. Mewshaw, supra.

The case of Park & Tilford Import Corp. v. Nash, supra, so heavily relied on, is distinguishable on its facts. There was testimony that the trade-mark there in question had a tremendous potential value, and the trustee made the sale before the property had even been appraised or the order for sale had been executed, and without notice to another prospective bidder who had asked to be given an opportunity to submit a bid. In almost all of the other cases cited the sales reported were affirmed, despite the subsequent receipt of offers at substantially higher figures. I think there is not a sufficient showing in the instant case that the price was inadequate or that the executors acted improvidently under the circumstances. I think the order should be affirmed.