#### Samuel Clarke *v.*John Clarke *et al.*

Whore »n exieuter ¡raised money and bought the slaves of his testator at •secution sale, and after repaying the purchase money, conveysd them according, to the terms of the will, *it wai held,*Dahiel, Judge,'dissent.ing, that they were liable .to .the claims of other creditors.

The bill was filed .in 1828, .and charged that *Henry Selby*gave his estate, by his will, ioihis widow Sully#.ml his children, -who were the defendants, and died in 1812 —that his widow administered with the will annexed and conveyed all her share to the other defendants, and had since died — that there was now no administrator upon iter estate, or her late husband’s; but that the defendants were in possession of the estate both real and personal, to a considerable value, under the will — that the plaintiff became the surety fin- the testator in a bond on which he had been recently sued, and a recovery effected, which he had discharged, and for which he could not have remedy at law, because there is no *408administration as above mentioned, and because the widow died insolvent after having assented to the legacies to the children, and the latter gave no refunding bonds. The prayer was for an account of the estate and satisfaction of the. debt.

On behalf of *Margaret Selby,*an infant defendant,an¿! a ward of *John Selby,*an answer was put in by her guar« dian, in which she denied that site claimed or had ever received any estate under the will, and in any manner from her father. It was alleged that *Ilenry Selby*died greatly indebted, and tiiat under executions against him or his administratrix, all ids slaves were sold, and puiv chased at a full price and fair sale, by *William Ross,*who afterw ards sold part of them to reimburse himself the cost, ami conveyed the residue to *John Selby,*as the guardian and trustee of the children and legatees of the testator, under which *John Selby*held them for some time, and then divided them among the children and allotted some to her. It was insisted that the sale was a fair one, and that *Ross*purchased with his own money, and with the view of befriending the children, and therefore made the conveyance, ami that the property was not further liable to the creditors of the testator.

This defendant since her answer was filed had intermarried with *Thomas*Hanrahan. who was made a party and took the deposition of *John Selby*in support of the. answer formerly put in by him for *Margaret,*his ward.

The answers of the other children were at first drawn . in conformity with the statement contained in the answer of *Margaret,*but were altered before being sworn to, and admitted that the negroes allotted to them in the division were received by them as legatees.

It appeared fully upon other deposition# and exhibits, tiiat *William Lavender*was the agent of the widow to manage the estate, and finding it pressed with executions and believing that unless sacrificed, it would pay all the debts and something he left for the children, did, in order to prevent a sacrifice, borrow g 5,000 and place the same iii the bands of *Rost*to pur-*409cliase such of the negroes as should not go for the full value, under an agreement that *Ross*should hold the title as a security for the loan, and when that should be discharged by the hire and re-sale of a part of the slaves, and all the debts paid, that he should convey the slaves that might remain to the legatees. That Mr. *Lavender*reduced the debt to about $>2000, and then by his request, *Ross*conveyed all the slaves to *John Selby*in trust to pay that balance and hold the residue for the children, between whom, after satisfying the debt by hire and sale, he divided twelve negroes in 1825,which lie put in their possession respectively. When the conveyance was made to *John Selby*he had become the agent of the widow and received from Mr. *Lavender*all the accounts of the estate with full information of tho return of the title, and also took from the widow an assignment of all her interest for the benefit of the children. These circumstances were explicitly stated by Mr. *Lavender,*and as to the facts, were substantially admitted by Mr. *Selby,*who differed only in this — that lie considered this conveyance to himself and the purchase by Mr. *Ross*as changing the character of the property so that it was no longer liable to the debts of the testator, but exclusively in trust for the children,

*Devereux,*for the plaintiff.

*W. C.*Stanly, *Bryan*& *Winston,*for the defendants.

RuffiN,Chief-Justice

After stating the pleadings and proofs as above, proceeded as follows: — The only question made in this cause arises on the answer of Ms. *JIanruhan;*for all the other defendants, w ith becoming fairness, decline any defence, founded on the idea that they do not hold as legatees. They admit they do.

As far as I can understand the truth of the case, tho resistance of the other defendant must be unavailing. — > It is not necessary to enquire even whether an executor or the agent of an executor (for they stand in the same relation to the estate and are alike affected by the rule of policy) can purchase at a sale under execution, ■where it clearly appears that he purchased with his own *410means, for a fair price, and was purchasing for himself. Upon that proposition I have, at least, a strong inclination to the negative; for the same reasons apply to a sale by execution as to one by the executor. The ground is not in either case that he cannot get a title under the sale, as he had it before. That has been sometimes said, but it is rather a quaint illustration than a satisfactory argument. The true reason is the relation of the executor to the property. He knows its qualities, the situation of the estate and the approaching necessity for a sale, and may be tempted to make advantages by allowing an execution sale. But even at such a sale, it is the duty of an executor to aid in getting the best price as if the property were his own; and it is obvious that much may depend upon full representations of the value of the several articles and upon fair efforts to gain bids. But as a purchaser, his interest is the other way and directly in conflict with his duty and with the interest of the estate. Upon principle it seems to me therefore, that such a sale cannot stand in this court, except at the election of all interested. But in this case the purchaser disavows in express terms all interested motives on his part, and declares that he bought to prevent a sacrifice of the estate, and took a conveyance to Mr. *Ross*as a trustee only as a security for the advance. He states that there was no intention to defeat creditors; hut the object was to pay all the debts and then convey the residue to the children. It docs not appear that there are any debts but that to the plaintiff, and that seems not to have been known then or when the deed was afterwards made to *John Selby.*According to that statement, a purpose of the purchase was the benefit of creditors, and the plaintiff could then claim under an express trust for himself. But if that were not so, and the intention was to promote the advantage of the children alone, it would seem to me to enure to the benefit of thé, creditors. The children advanced nothing. The excretor or the agent, which is the same thing, bought avowedly, it may be taken, for the children or a part of then}, and afterwards held the estate as a trust. It *411would be dangerous to say, that he who is charged with protecting in equal degree the interest of all claiming the estate beneficially or having claims upon it, should have the power of excluding some of the *cestuisque trust*and conferingthe benefit on a favored portion.

*410per Ruffix, “rs-uen*. tions apply to purchase* I”a<i® *7 cution «ale of the own!

*411By Dakixi, Judge, *'arguendo*— A levy vests the title to .chattels in the sheriff. His sales ars *prima facie*fair, and the cus of *JHtvtti*v. *412*Davis (~2 Dev. H.*‘9,) validate purchases. of assets made by the executor' at his sales. According to the case of *Dlount*v. *Davis,*(2 *Dev. R.*19.) 'executors may purchase the assets of their testator under a she-riif’a sale.

*411In this case, however, the estate paid for itself. The purchaser never was any thing out of pocket and claimed the negroes only as security, with a trust as to thr surplus for those to whom the estate would go according to the will. The true construction of such a trust.unless the intent ch-arly and unequivocally appear,must he that it is not only for those to whom the w ill gives the property,but also as the will gives it,that is,subject to the claims of all personsagainst the legatees,as legatees. There wras no intention in the administratrix or Mr. *Lavender*to defeat the claims of either creditors or the legatees, but on the contrary, as he expresses it to save the estate, which was no doubt mainly with a view to the children — but in doing that, the creditors are necessarily ser» ed incidentally. I therefore think the plaintiff is entitled to relief, and that it must be referred fo the master to state the sum due to him, and to take an account of the estate of the testator in the hands of the defendants respectively, considering the slaves in question to be a part of the estate, which they are declared to be,

Ga»tok, Judge, concurred.

Daniel,

*disentiente.’*— I do not agree in the opinion expressed by a majority of the members of the court in this case, that an executor or administrator cannot purchase at a sale made by a sheriff, who has levied an execution on the goods and chattels of the testator or intestate. I know of no authority prohibiting them from purchasing at a sheriff’s sale. 1 do not think the rase comes within tiie reason of the rule which prohibits executors, administrators and trusters purchasing at their own sales. By the levy, the title to property is immediately vested in the .sheriff, his sales are obliged to be public, after an advertisement. I do not see what chance there can be for the executor or adminis*412trator, to commit frauds in case they are allowed to purchase. This court lias decided that they may purchase at a sheriff’s sale. *Blount*v. *Davis.*(2 *Dev.*19.) In the present case, *Lavender,*who procured the money was not the executor. He had acted only as the agent of the executrix. I should suppose that the purchase of the slaves by *Ross,*for the benefit of *Lavender,*was lawful, and that the title of the slaves vested in him.

Fan Curiam. — Direct a reference.