#### Honoria McNish and others *vs.*Franklin H. Pope and others.

Trustee for sale purchased the land for one thousand five hundred dollars, and the sale was confirmed by the Court — the *cestui que trusts*being parties to the proceedings. Trustee afterwards sold the land for two thousand and twenty-five dollars, and the money was paid to the surety on his trust bond to be applied to that bond, the surety at the same time undertaking with the purchaser to procure the relinquishment of dower of the trustee’s wife. Trustee died, and afterwards *cestui que trusts*filed this bill against the surety for the *money:*— Reid, that the surety might retain, for a reasonable time, a part of the money, to meet the claim of dower, (whioh the Court considered doubtful,) in case it should be made.

BEFORE WABDLAW, OH., AT CHARLESTON, JUNE, 1853.

Dr. Thomas E. Screven, by deed dated 27th January, 1829, conveyed a tract of land on May River, called the Rower, to John McNish, trustee of Honoria McNish, John Horatio, Charles Lycurgus, Thomas Julius, Laura, Mary Catharine,' Jane Dupre, and Susannah McNish, in trust for the aforesaid children, and such other children as may be born of the body of Ann McNish, wife of John McNish, to be divided among them equally, share and share alike, and until such division shall take place to be occupied and used entirely and specially for the maintenance and support of aforesaid children.

By deed dated 4th February, 1831, between the same Dr. Screven of the first part, Ann McNish of the second part, and Jeremiah Fielding, and Richard J. Davant of the third part, reciting that Dr. Screven had purchased a plantation called Stockfarm, on May River, and certain negroes, at sheriff’s sale, as the property of John McNish, and that he had sold part of the land, and thus reimbursed himself for the money paid, and that Mrs. McNish had released her dower in *187the part thus sold, he conveyed the residue to Fielding and Davant, *in trust to permit the said Mrs. Ann McNish to receive and take the rents, §•e., during her natural life, and after her decease for all such child or children as she shall at the time of her death leave alive and surviving her,*share and share alike, as tenants in common, and not as joint tenants, their heirs and assigns for ever.

*26th January,*1838. — A petition "was presented by Mr. Alexander Edwards, then a practitioner of the law at Gillison-ville, in the name of Mrs. Ann McNish, praying that G. L. McNish and J. H. McNish' might be substituted in place of Jeremiah Fickling and Richard J. Davant, as trustees under the deed of 5th of February, 1831.

As Mr. Davant, the Commissioner, was a party, this petition was referred to Angus Patterson, Esq., as a special commissioner, who made a report the next day, certifying, on the testimony of George Pope and Alexander Yerdier, that 0. L. McNish and John H. McNish were proper persons to be trustees in place of Fickling and Davant. That report was confirmed on the same day, and an order entered that 0. L. McNish and J. H. McNish be appointed and substituted trustees to the deed of trust mentioned in the petition, upon such certificate being endorsed by the Commissioner upon the original trust deed and duly recorded.

On the next day, the 29th January, 1838, petitions were presented severally by John McNish, as trustee under the deed of 27th January, 1829, and C. L. McNish and John H. McNish, as trustees under the deed of 5th February, 1831, setting forth, in nearly the same terms, that the two pieces of land were adjoining and brought no rent, and ought to be sold. In each case an order was made the same day, referring the petitions to the Commissioner to report on the facts and the propriety of granting the prayer of the petitions, and the gross value of the trust property proposed to be sold.

*188On each petition the Commissioner made a separate report next day, viz: that from the testimony of Norton, Logan, Verdier, and Pope, filed with the report, it would appear that a sale is beneficial to the *cestui que trusts.*

On the 2d February, 1888, an order was entered in both cases, on motion of the solicitor for the petitioners, to the effect that the Commissioner hold a reference to ascertain the gross value of the trust property proposed to be sold, and upon the trustees giving bond and security, in double of its value, for the faithful discharge of |their duties, the property mentioned in the petitions be sold by the Commissioner, and the proceeds delivered to the trustees, to be held by them subject to the trusts respectively in the trust deeds. Nothing further was done till 1839, when a new petition was presented to the Court at January Term, in the name of C. L. McNish, Honoria McNish, and J. H. McNish, setting forth Dr. Thomas E. Screven’s conveyance to R.. J. Davant, and J. Fielding, for the use of petitioners, their father, mother, brothers and sisters, viz: Laura, Thomas Julius, Jane Dupre, Mary Catha-rine, and Sarah DuPont McNish, of a tract of about three hundred and fifty acres, called Stoekfarm; and another conveyance by the same in trust to John McNish, father of the petitioners, for the use of petitioners, and the other parties above mentioned, of a tract^ called the Bower; that the lands in their present situation are of little value, and that it would be much to the interest of the petitioners, who are of age, and to the interest of their father and mother, and of their brothers and sisters, which latter named persons are under the age of twenty-one years, that the same should be sold and the proportional shares of the minors put out at interest, upon bond with good security, bearing interest payable annually. That as the interest of petitioners is small, it would be to their advantage to receive it in fee simple. Prayer accordingly.

*189The petition has these endorsements : We acknowledge the legal service of this petition, 28th January, 1839.

John McNish,

Ann McNish,

LauRa McNish,

T. J. McNish,

Jane D. McNish,

Many 0. McNish,

Susannah D. McNish.

At the same time an order was entered, on motion of Mr. Singleton, that the order of reference be extended to the next term.

In this state matters remained till' 1841, when a report on the last named petition was filed, certifying that Dr. Screven conveyed by deed of 5th February, 1831, the land described in the petition to Fiekling and Davant in trust, and that in 1838, on the petition of Mrs. McNish, an order was made for change of trustees, on condition of the substitution being endorsed on the original deed by the Commissioner, and duly recorded.

That the original deed had been sent to Charleston for registration, and could not be found; and so the order, in this respect, could not be complied with. That he, the Commissioner, had no evidence of the execution of the other deed; that from the testimony of *George Pope*both the tracts are worth together not more than fifteen hundred dollars, and that a sale would be advantageous to the *cestui que trusts.*

On the same day, on motion of the solicitor for the petitioners, an order was entered, modifying the order made in January, 1838, so far as to dispense with the endorsement on the original deed, directing *the land described in the petition to be sold, and that on the trustees, G. L. McNish and J. H. McNish giving bond and security in double its value*the proceeds be delivered to the trustees, to be held by .them subject to the trusts respectively in the trust deeds.

*190On the 1st March, 1841, Mr. Davant, the Commissioner in Equity for Beaufort District, offered both tracts for sale in one lot, and set them down to 0. L. McNish, as purchaser, at fifteen hundred dollars, and made him a deed, which bears date the same day, and is expressed to be for the consideration of fifteen hundred dollars paid, and took a receipt from him for the purchase money, and took a bond from C. L. McNish, J. II. McNish, George Pope and E. H. Walsh, in the penal sum of fifteen hundred dollars, reciting the appointment of C. L. McNish and J. II. McNish as trustees, in place of Jeremiah Pickling and R. J. Davant, under a deed made *by*Thomas E. Screven, and conditioned for the faithful performance of their said trust. 0. L. McNish on the same day mortgaged the land to George Pope as a counter security against his bond. At the sitting of the Court in May, 1841, Mr. Davant reported that he had sold to 0. L. McNish both tracts of land for fifteen hundred dollars, and taken his receipt for the purchase money, deducting costs, which report, on the 19th February, 1842, was confirmed.

By deed bearing date the 29th December, 1848, 0. L. Mc-Nish conveyed the same premises to B. E. Guerard, in consideration of two thousand and twenty-five dollars, which was received by George Pope, who signed the following memorandum:

“ Gillisonville, 29th December, 1843. — Received of Mr. 0. L. McNish, through the hands of Mr. B. E. Guerard, two thousand and twenty-five dollars, which is to be applied to the trust bond given by him for the benefit of the McNish family.”

At the same time, George Pope bound himself by a written contract with the purchaser to procure the consent of all the adult *cestui que trusts*interested in the two tracts of land purchased by him, and to procure a relinquishment 'of dower from Sarah Jane McNish, the wife of 0. L. McNish, or return the purchase money, and to give up his mortgage to be can-celled.

Prior to the 5th day of January, 1844, a bill was filed by S. *191Lawrence, as the next friend of Jane McEish, Susan McEish and Mary McEish, infants, to restrain George Pope from paying over the money in his hands to 0. L. McEish, or John H. McEish, and an injunction was granted by the Commissioner on the day last mentioned, which injunction, at the sitting of the Court in February, 1844, was continued, and a provisional order was made, that in case the defendants did not answer, the Commissioner should inquire how much should be set aside out of the purchase money as the price of Stockfarm.

On that bill no further proceedings were had, and 0. L. McEish died in the same year, leaving a widow and two children.

On the 1st December, 1847, the complainants and their mother filed their bill against B. E. Guerard, as well as J. Fick-ling and R. J. Davant, and John McEish, John IT. McEish, and the personal representatives of C. L. McEish, when they come within the jurisdiction, praying to set aside the sale to C. L. McEish, and to have the Bower and Stockfarm divided between them and B. E. Guerard, as the purchaser of the shares of C. L. McEish and J. H. McEish. Mr. Guerard put in his answer, claiming as a *bona fide*purchaser, without notice, for consideration, and the cause came on to be heard in January, 1849, when the bill was dismissed with costs as to Stockfarm, and retained for further inquiry as to the Bower, and with leave to make John H. McEish a party. On appeal this decree was confirmed, with a slight modification.

In February, 1850, the cause came on again, and the bill was dismissed with costs. Afterwards leave was obtained to sue the bond of George Pope, at law, and an action was brought in the Court of Common Pleas in the name of the Commissioner. Pending this action, Mrs. McEish died on the first of October, 1851. In April, 1852, the case, Davant *vs.*Pope, was tried, and a verdict had for plaintiff, from which the defendant appealed, and the Court of Law ordered the judgment to stand as a security until an account should be taken in this Court.

*192This bill was then filed against E. II. Pope, executor of George Pope, and the administrator of Mrs. McNish, as well as the administrator of C. L. McNish, and J. H. McNish, the surviving trustee, were made parties.

The defendant, E. EL Pope, put in his answer, denying that he was liable on the bond, because the bond was for the trustees of Stockfarm only; and denying that he was liable on his receipt of the money, because he received it as an indemnity against the dower of C. L. McNish’s wife.

The case was heard on the 11th July, 1853, by Chancellor Wardlaw, who, on the 30fch November, 1853, delivered the following decree:

WARDLAW, Ch. The plaintiffs are six children of John and Ann McNish, being all the children of these parents, except Charles L. and John H., and the defendants are E. H. Pope, executor of George Pope, John H. McNish, and the adminis. trators of said Ann McNish and Charles L. McNish, The object of the suit is to obtain satisfaction from a fund deposited with the testator, George Pope, of the interests of the plaintiffs in the Bower and Stockfarm tracts of land.

The facts of the case are many and complicated, and the pressure on my time inhibits me from any special statement of them or of the pleadings. I refer instead to the cases of *Mc-Nish*vs. *Gfuerard,*4 Strob. Eq. 66, (with Chancellor Johnston’s final decree therein, in manuscript,) and of *Davant*vs. *Pope,*MS., Charleston, Law, Jan., 1853(a), upon the same subject of controversy, and to the pleadings and evidence in this case in writing. Ann McNish died about October 1st,'1851, and Thomas J. Bresnan has administered upon her estate: C. L. McNish died at a date not exactly appearing, but as I infer, early in 1844, and L. C. Gordon has administered upon his estate; besides these, I am not aware of any important fact *193not appearing in the previous cases, which may not he more conveniently reserved for statement in the course of.the brief discussion proposed upon the doctrines involved in the case.

The case is complicated by the previous proceedings of the Courts and the acts of the parties; and the extent of the remedy to which plaintiffs and others in the same interest are entitled, is disputable. It is clear that George Pope’s representative can have little cause of complaint as to any order for the distribution of the larger portion of the trust funds in his hands, and that the children of Ann McNish are justly entitled to this larger portion, although technical difficulties may obstruct full relief to them.

C. L. McNish and J. H. McNish were express trustees of the Stockfarm only, and their bond to the 'Commissioner for the faithful performance of their trusts, with George Pope as surety, refers in terms to Stockfarm only. Upon the intimations of opinion in *MeNish*vs. *Cfuerard,*and my own apprehension of the doctrine on the point, I hold that the trusts declared in the separate deeds of Dr. Screven, as to the Bower and Stockfarm, were executed in the beneficiaries as to both tracts; and that the conveyance by Commissioner Davant of the two tracts sold jointly, for fifteen hundred dollars, under proceedings in this Court, in which all the parties in interest concurred, carried the legal title in both tracts to C. L. McNish; at least for the purpose of completing his conveyance to, Guerard, and investing the latter with an absolute estate in fee. In May, 1841, the Commissioner made report of the sale, which was confirmed by the Court, in which he stated that he had taken the receipt of C. L. McNish, as trustee, for the net proceeds of both tracts sold jointly; that C. L. McNish and his co-trustee, meaning John H. McNish, had given security for the faithful performance of their trusts; and that he, as Commissioner, had executed a conveyance of the land to C. L. McNish. On December 29, 1843, 0. L. McNish having sold and conveyed both tracts to B. E. Guerard, paid the purchase money, two thousand *194and twenty-five dollars to George Pope, and took his receipt for the samé, *“*to be applied to the trust bond given by him (0. L.) for the benefit of the McNish family.” On the same day Mr. Pope agreed with Guerard, who was the agent in depositing the purchase money, to procure for Guerard the consent of all the adult beneficiaries interested in said-two tracts of land, and also to procure relinquishment of dower from Sarah Jane McNish, wife of said 0. L. McNish, in- said two tracts of land, &c. So much of this agreement as relates to the consent of the adult beneficiaries had been already achieved by their being parties to the proceedings under which the land was sold, and it is unimportant, except as showing that both 0. L. McNish and George Pope acknowledged this to be a trust fund belonging to the plaintiffs and others.

These facts are sufficient to constitute both 0. L. McNish and George Pope, trustees, by implication,-of the proceeds of sale to Guerard, and not merely of the original price paid by 0. L. McNish. It may be that both are under peculiar obligation as debtors by specialty for the price of Stockfarm at Commissioners’ sale; but this does not restrict their liability as debtors by simple contract for the price of both tracts on re-sale. The purchase of Stockfarm, by C. L. McNish, was voidable, as made by one acknowledging himself trustee at a sale substantially his own. *JEx parte*Wiggins, 1 Hill, Oh., 353. And where, as in this case, a trustee consents that the estate for which he is trustee shall be mixed and consolidated with another estate of his beneficiaries as to which he may have no fiduciary connection, and becomes purchaser of the mass at his own sale, his purchase of the whole is voidable. On this account, greater effect is to be given to his subsequent acts and declarations representing himself, notwithstanding his legal title, as remaining trustee for the whole. Beneficiaries are not bound to treat a voidable sale as void, and may affirm ■ it, as the plaintiffs do here, and proceed for the amount of resale and interest as the result of the management of their *195estate by the trustee. Story, E. J., 321, 323. I consider George Pope as being in the same predicament with 0. L. McNish. 4 Strob. Eq., 81. I conclude, with some slight hesitation in going beyond the price paid by 0. L. McNish, that the fund in the hands of Pope is the substitute for both tracts of land, and the subject for distribution.

The defendant Pope, executor, insists that the widow of 0. L. McNish is a necessary party to this bill, inasmuch as she is entitled to dower in both tracts ; and his testator received the fund in question upon agreement with Guerard, through whose hands he received it, to procure the relinquishment of her dower. I shall not undertake to determine, in this suit, whether she is entitled to dower in one or both, or neither of the tracts of land. While her claim to the full extent in both tracts is too specious to be rejected without hearing her, I am not disposed to invite her to be a litigant. She has made no claim of dower hitherto, and her demand will soon be barred by the statute of limitations. But I am informed by defendant’s counsel, since the hearing, that she has actually taken some measures for the ascertainment of her claim. Neither this widow, nor Guerard, against whom the demand for dower must be asserted, is a party to this suit: but their equities may be protected through the equity of Pope ; and I regard his equity to be reimbursed from the fund on his agreement with Guerard as to this dower, which was a condition of his receiving the fund, and in consequence of which receipt he surrendered a mortgage of the premises, to be superior as the party in possession, to any equity of the beneficiaries of the fund. They have voluntarily exercised their option of pursuing the fund as the result of the management of their equitable interests by trustees, instead of claiming the 'land, and they must take the fund subject to superior equities. The share of 0. L. McNish, from his breach ef duty as trustee and from his warranty to Guerard, is primarily liable for the dower which may be claimed; but that share is insufficient for the satisfaction of the claim if estab*196lished in full. I am much embarrassed in granting instant relief to the plaintiffs, to determine the additional amount which should he reserved for meeting this possible claim of dower. " If the widow proceed in the Court of Law and establish her demand, she will recover about one-sixth of the value of the land at the date of her husband’s alienation, with interest from the date of his death; but if she proceed in this Court, she may recover rents and profits exceeding the interest on one-sixth of the fee simple value, and to an extent utterly unascer-tained and indefinite. There is some slight difference against John II. McNish in the comparison of the equities of the beneficiaries of this fund, but it seems insufficient to retard him more than the others in the enjoyment of their interests. He was nominal trustee as to one of the tracts of land, but he has committed no injurious breach of trust. I find no resource except in reserving in Pope’s hands a sum sufficient to satisfy the demand for dower, if successfully prosecuted. As the widow of C. L. McNish and B. Guerard are not parties to the suit it would be unsafe and improper to order the whole fund to be paid into Court without calling them in.

It was suggested by defendant, Pope, that there might be other creditors of C. L. McNish, perhaps of superior rank to the plaintiffs; but no such creditor has intervened during the long term of this litigation, and it is unlikely that any can have so strong an equitable claim to this fund as the beneficiaries of it; and the Court feels no obligation to delay on this account parties who have already suffered much from delay and blunders, on a suggestion not proved and coming from one interested in promoting procrastination.

The rights of the plaintiffs were not the same in the two tracts of land; their right of enjoyment as to Stockfarm being postponed for the lifetime of their mother, Ann McNish, and as to the Bower being immediate upon the execution of Dr. Screven’s conveyance; and their rights in the fund substituted for the lands are the same as in the lands originally. The com*197parative values of the two tracts, producing this fund by sale in mass, have not been ascertained. It was stated for plaintiffs, at the hearing, that the tracts might he considered as of equal value, hut no agreement was made on the point, and the Master must inquire and report as to their respective values, estimated in the aggregate at two thousand and twenty-five dollars, on December 29, 1843, unless the parties accord and waive.

It is ordered and decreed, that one of the Masters inquire and report as to the proportions of Stoekfarm and the Bower in producing on December 29, 1843, the aggregate price of two thousand and twenty-five dollars; and that defendant E. IT. Pope, executor, pay to the plaintiffs and John II. McNish, in equal shares, three-fourths of this aggregate price, with interest from December 29,1843, on so much thereof, as represents the value of the Bower, and with interest from October 1, 1851, on so much thereof as represents the value of Stoekfarm; and that said defendant, Pope, pay to Thomas J. Bresnan, administrator of Ann McNish the interest o,n three-fourths of so much of the aggregate price as represents Stoekfarm, from December 29, 1843, to October 1, 1851.

It is also ordered, that said executor be allowed to retain one-fourth of said aggregate price with interest from December 29, 1843, until the further order of the Court, with leave to any of the parties after the lapse of ten years, from the death of C. L. McNish, to move for the payment of the amount reserved. Let the costs of this suit be paid from the fund in the hands of Pope, executor.

All the parties, except E. H. Pope, appealed on the grounds;

1. That the wife of a trustee is not dowable out of the trust property.

2. That C. L. McNish was a trustee, and is estopped from *198averring to the contrary. That the deed made to him hy the Commissioner in Equity could not divest him of the character of trustee; not only because a.trustee cannot buy the trust property without the express leave of the Court, but because in that transaction C. L. McNish acted as buyer and seller, and Mr. Davant as his agent.

8. That independent of the trust, the seisin of C. L. McNish, if he had any seisin at all, could not support the right of dower; because it was at best but a seisin *in transitu;*as the Commissioner’s deed, the trustees’ bond, and the counter security by mortgage, were all one transaction.

4. That Pope has no greater equity than C. L. McNish would have had; but C. L. McNish would have been clearly liable to costs; and the decree should not have condemned the complainants and those in the same interest with them to pay costs, but should give the same relief against Pope as the Court would give against the representative of McNish if he were able to answer.

5. That the right of the representatives of C. L. McNish, and of all claiming under him, are confined to the fund arising from the Bower; for by the terms of the deed of February, 1831, the proceeds of Stockfarm are distributable among the surviving children of Mrs. Ann McNish.

*Petigru,*for appellants.

*De Treville,*contra.

(a)

6 Rich. 247.

The opinion of the Court was delivered by

Johnston, Ch.

The decision of the Chancellor is not that the widow of Lycurgus McNish is entitled to dower in the premises purchased by him at the commissioners’ sale; — but, *199merely, that, if she is, the fund in the hands of Pope should be subject to the value of her dower.

We think his decision is right, and that he has properly exercised his discretion to retain for a reasonable time so much of the fund as may be required to meet her claim.

The purchase of the premises by Lycurgus may have been subject to an avoidance by those interested in the land, on the ground that he was a trustee ; but, being parties to the proceeding under which the sale was made, they waived their equity by assenting to the confirmation of the purchase.

That confirmation was a waiver of all equities in the land, and by his bond Lycurgus became trustee for the price of fifteen hundred dollars obtained for the land; and Pope became surety for the trusts undertaken.

If, by their subsequent sale to Guerard, a profit was made on Lycurgus’s purchase, it was for him alone to determine whether that profit should enure to the *cestui que trusts*of the one thousand five hundred dollars or to himself: and if by an act entirely voluntary, he indicated an intention to convert it to them, neither he nor his surety should be so harshly dealt with as to deny them the privilege of discounting out of the profit the means by which it was to be secured.

It appears that Guerard stipulated for a title flisencumbered from the dower of Lycurgus’s wife: and that when Pope, as the agent of both parties (Lycurgus and Guerard) received the ■two thousand and twenty-five dollars, to be applied to the bond, he at the same time bound himself to Guerard, to procure an extinguishment of the dower, or to return the' money to Guerard.

Such a transaction means, in substance, that the fund they received — less the amount of the dower, — is trust money. So the Chancellor has held; and we approve his decision.

• It is ordered that the decree be affirmed and the appeal dismissed. *

Dargaw and Wardlow, 00., concurred.

*200Dunkin, Oh.

I think C. L. McNish was a trustee, as well in the purchase as the resale of land — that this is proved as well from the circumstances attending the sale as from the receipt afterwards given to Mr. Guerard. This might well be regarded as a declarative acknowledgment of the fiduciary nature of the transaction. I am equally well satisfied that of such estate the widow of the trustee is not dowable; and, after a lapse of nine years without any claim ou her part, I should not have been dissatisfied if the chancellor had made a decree for the payment of the entire fund. I do not understand that either the Circuit Court, or this Court, have expressed any definite opinion upon the widow’s right, and, as she was not a party in the cause, and the Chancellor thought proper to retain a portion of the fund to await the final determination upon that subject, I would not interfere with this exercise of his discretion.

*Decree affirmed.*