#### *Peter M. Huson and others vs. Daniel*Wallace, *Ad’mr. of Thomas McMeekin.*

Infant parties to a bill might be entitled to a, day to show cause against the decree, if it were erroneous, but while it stands unreversed, it,is, in another suit, conclusive.

Where partition of personalty, which allotted to a wife her distributive share, was made in 1831, and the return was confirmed *nunc fro iunc*in 1835, more than four years afterwards, and the wife had died in the mean time, but the husband had possession before her *death*— Held, that the marital rights of the husband had attached on the property allotted to his wife.

An order confirming the return of commissioners in partition, has relation back to the actual partition, and operates to vest the legal title from that time.

Intestate had contracted for the purchase of a tract of land, with the unexpired term of a ferry charter annexed to it. Shortly after his death, the ferry was re-chartered in the name of his wife, who was his administra-trix. *Held*that she received the charter as a trustee for the estate, and was accountable for the rents and profits. Per Harper, Ch.

Where the administrator of an estate, who had married his intestate’s widow and become the guardian of his children, purchased, at a price below its real value, a tract of land of the estate, sold at public outcry by the commissioner, under an order of the court made on a bill for partition— *Held,*independently of any charge of unfairness or fraud, that he was bound to account to the distributees of the estate for the full value of the land at the time of the sale.

*2An executor or administrator is not bound to hire out the slaves of the estate, but, on the contrary, is to be encouraged in keeping them on the lands and accounting for the crops ; and where he accounts fairly for the crops actually made, he is not to be charged further, unless for gross neglect.

Where an executor or administrator keeps up the plantation, it is competent for him to purchase such supplies of any kind as are necessary and proper for keeping it up, and charge them to the estate.

A husband, who receives an estate with his wife, is not bound to maintain her children of a former marriage, but may charge them for their board and education.

Where a mother died intestate, in 1832 or 1833, owing no debts, and leaving as her only distributee her daughter, whose husband, without administering, took possession of the estate, and kept it until the death of his wife, which was in *1835*— Held, that the marital rights of the husband had attached on the property.

Where there are no debts, and but one distributee, the distributee may take possession without administering.

A gtfardian is not bound to go beyond the limits of the State in prosecuting the rights of his wards, and if he does go, he is entitled to make a reasonable charge for his services.

A party failing to make a particular exception to the report of a referee, when*other exceptions were made, on some of which the report was re*committed*— held, that it was too late to make the exception, when the report came up again, on exceptions to the matters on which it was re-committed.

The commissioner is only entitled to one dollar on each return of a guardian!

An administrator, who purchases at an under value the land of his intestate, and is compelled to account for the full value, is not entitled to commissions on the advanced price which he is required to pay.

This cause came on to be heard, at Union, in June, 1840, before Harper, Chancellor, who pronounced the following decree.

“Daniel Brummet died in 1816, possessed of a considerable estate, and leaving his wife, Susannah Brummet, and his daughter, Elizabeth C. Lewis, married to John Lewis, his heirs and distributees. The widow, Susannah Brummet, and John Lewis, took out administration on his estate. John Lewis died in 1822, leaving his wife surviving, and six children. Two of the children died in infancy, one married the complainant, Peter M. Huson, and died in 1836', leaving one daughter, the complainant, Mar-y C. Huson. The surviving children of John Lewis were *3the other complainants. In 1825 the widow of John Levins married the defendant’s intestate, Thomas McMeekin, by which he became administrator in her right, she being administratrix on the estate of her former husband. The intestate, McMeekin, became also the guardian of the infant children of John Lewis. On the 12th May, 1828, McMeekin and wife filed their bill in this court against Susannah Brummet, and the infant children of John Lewis, claiming partition, both of the estate of Daniel Brummet and John Lewis. A writ of partition was ordered and issued. At the June sitting, 1829, the commissioners made a return, recommending, that as both estates were much embarrassed by debt, the land of both should be sold for fhe payment of debts, and that for the present no partition should be made of the personal estate.

At the same court, as I understand, the creditors of John Lewis presented their petition, that they might be paid out of the proceeds of the land recommended to be sold. The return of the commissioners was confirmed, and an order made for the sale of the lands. These were exposed to sale on the 7th September, 1829, and the land of both estates bid off by defendant’s intestate. That of the estate of Brummet, at $850, and that of the estate of Lewis, at $1500. He made an arrangement to comply with the terms of sale, with respect to the land of the estate of Brummet, but did not comply with respect to that of the estate of Lewis.

' The commissioner reported these facts, June, 1830, and the court ordered a re-sale of the land ' of Lewis’s estate, and that the second writ of partition issued to divide both personal estates, should be suspended till the former part of the order should be carried into eifect. The land was again exposed to sale, on the 6th of September, 4830, and again bid ofiT by defendant’s intestate, at the price of $1100, who, for aught that appears, then complied with the terms of sale. On the 9th February, 1831, partition of the personal estates was made by the commissioners to the second writ, in pursuance of the terms of the order and writ, allotting two-thirds oi the estate of Brum-met to McMeekin’s wife, and the other third to Susannah Brum-met, and.allotting one-third of the estate of Lewis to McMee-kin’s wife, and dividing the other two-thirds among the children of Lewis. At the instance of the creditors, who were before the court, claiming their debts, the court forbore to confirm the return of the commissioners, till they should be paid. At a *4special court in September, 1835, the commissioner reported the debts to be paid, and the court ordered the return to the writ of partition to be confirmed nunc *pro tunc.*In the mean timfe, and before the making of this last order, the wife of defendant’s intestate had died. The time of the death of Susannah Brum-met is not precisely fixed, but it is understood that she died before Mrs. McMeekin, leaving the latter her sole heir and distri-butee.

In 1836, defendant’s intestate sold the land he had purchased of the estate of Lewis, at a considerably advanced price. In his management of the estate of Lewis, and also that which had been the estate of Brummet, the whole of which was in his hands after the death of Mrs. Brummet, and perhaps managed by him before, he kept the slaves employed on the land, without hiring or renting, and in his annual returns to the Ordinary gave an account of crops. At the foot of his accounts returned to the Ordinary, and after giving a statement of debts due by and to the estate of Lewis, there occurs the following memorandum, *“ The*principles of *the*foregoing accounts adopted, were that one-third of the expenses of the plantations of the estates of Daniel Brummet, deceased, and John Lewis, deceased, the management of which were entirely under the control of the administrator, Thomas McMeekin, and charged to the estate of the said Daniel Brummet, deceased, and two thirds to the estate of John Lewis, deceased, crediting the two estates, in the same proportion, by the amount of the nett proceeds of the crops for each year.”

John Lewis, at the time of his death, had contracted for the purchase of a tract of land on Tiger river, to which was attached a ferry, called Hamilton’s Ferry. This, in 1823, was re-chartered in the name of Elizabeth C. Lewis, and from that time no account was returned of the rents and profits of the ferry.

William Brummet, a son of Daniel Brummet, and brother of Mrs. Lewis, died in the lifetime of his father. The defendant’s intestate, Thomas McMeekin, took out administration on his estate, for the purpose of prosecuting a claim to certain property, and recovered a number of slaves of considerable value. It is understood that Thomas McMeekin left children of his, marriage with Mrs. Lewis. Many matters are set forth, and claims made by the bill and answer, not necessary to be now stated. Certain questions were made with a view to the account, which will be -directed. The first *question*made is, what interest had John *5Lewis in the estate of Daniel Brummet? Complainants contend that he was entitled to two thirds. Defendant contends that John Lewis had no interest in that estate. I consider the law fully settled, as contended for on the part of the defendant, that if a husband be in possession of an estate as administrator, to a distributive share of which his wife is entitled, and she dies before distribution made, his marital rights will not be held to have attached in her interest in the estate, but that interest will be distributable under the statute. The case quoted, of *Sturgineger vs.*Hannah, 2 N. cfi: McC.- 147, seems to be in point, as also the later case of *Peay vs.*Barber, Dud. Ch. 238. There are also several other cases to the same effect. *Ex parte*Elms, 3 Eq. R. 155; *Bunch vs. Hurst,*3 Eq. R. 289 ; *Baker vs. Hall,*12 Ves. 496. John Lewis was in possession (and it may be said, not in sole possession, as Susannah Brummet was his co-administratrix,) of the estate of Daniel Brummet, as administrator, and there is no evidence of any distribution made during his lifetime. On the part of the complainants, there is an attempt to infer a partition in some way from the memoran--dum annexed to his accounts in the Ordinary’s Office, stating the manner in which he had charged the expenses and credited the crops of the two estates of Daniel Brummet and John Lewis. That memorandum is not very intelligible, but the best conjectural meaning I can give it is, that the administrator, McMeekin, employed the slaves of both estates on the plantations indiscriminately, and bought supplies for both in gross, and that the estate of Lewis being larger and more expensive than that of Brummet, in such a proportion the administrator, not being able to discriminate otherwise, charged and credited one with one-third, and the other with two-thirds of the expenses and crops. The only other possible conjecture would be, that Lewis had no estate of his own, but that under the name of Lewis’s estate, was meant the two-thirds of Brummet’s estate, to which he was entitled in right of his wife, and by Brummet’s estate Mrs. Brum-met’s share of that estate, and that expenses and crops were apportioned accordingly. But this is contradicted by the fact, that an estate of Lewis has been distributed, the land sold, and the slaves divided, and complainants state that they have received no part of Brummet’s estate. Indeed, the conjecture and inference would be entirely extravagant, if I were not concluded by the judgment in partition, allotting one-third of Brummet’s estate to Mrs. Brummet, and two-thirds to McMeekin and wife. *6The complainants, as being infants at the time, might be entitled to a day to show cause against that decree, if it were erroneous, but while it stands unreversed,' it must be conclusive in this court. I perceive no shadow of proof of any distribution of Brummet’s estate, in the lifetime of Lewis, and Mrs. Lewis’s interest in that estate must, therefore, be held to have survived to her.

The second poiht .is, “ what interest had Thomas Mc-Meekin in the estate of John Lewis ? Complainants contend that he was entitled only to one-ninth, and not to one-third, as defendant contends.” Partition of the estate of Lewis was made in 1831, by the commissioners in partition, and one-third of the estate allotted and set apart to McMeekin and wife. According to the general law, when partition is made, and *the wife’s*share allotted to her in severalty, the marital rights attach. The ground taken by complainants is, that the wife died before the order for confirmation made *nunc pro tunc*in 1835; that the partition was not completed till then, and that the marital rights never attached; consequently, that the husband was only entitled' to one-third of his wife’s third. I have little doubt on this subject, though I do not find any authority directly to the point. There can be nó English authority, as partition there relates only to land, and, as it is said, is made in equity by compelling the parties to convey to each other by deed; *Whaley vs.*Dawson, 2 Sch. and Lef. 372. Nor do I find any direct authority of our own, yet I apprehend that in every case of an order to confirm the return to a writ of partition, the order must have relation to' the actual partition, and operate to vest the legal title from that time. The actual partition is a fact, and the order of court recognizes and establishes that fact. The very term confirm, implies a previous act done, which is sanctioned and approved by the order of confirmation. No writing is necessary to convey personal property. Can it be thought, that after the commissioners have allotted property to a distributee, if he should take possession of it, it still remains the property of the executor or administrator, so that, until after confirmation, he could maintain an action at law for this trespass in taking it *1-*Suppose parties to make partition between themselves, and afterwards, for greater personal preservation, or some of them being infants, to obtain the confirmation of the court, must not their several titles be referred to the actual partition ?

*7But the commissioners are the agents of the parties, and the incapacity of the infants to appoint their agents is supplied by the court.

But this order was made *nunc pro tunc.*The very terms import that it is intended to give it the same effect on the rights of the parties as if it had been made at the time to which it is referred. As he had the actual possession, and the several legal title of his wife’s portion'of Lewis’s estate, I must hold the marital rights of defendant’s intestate to have attached.

The third question relates to William Brummet; defendant contending that his intestate was entitled to one-third of that estate, and complainants, that he was only entitled to one-ninth. I do not see the grounds of complainants’s position. On the death of William Brummet, in his father’s lifetime, his father and his sister, Mrs. Lewis, became equally entitled to his estate, and upon the successive deaths of her father and mother, Mrs. Lewis became entitled to the whole. There is no pretence that this estate was ever reduced into possession by John Lewis. Then, on her death, before its reduction into possession, it became distributable under the statute, one-third to her husband, and the other two-thirds to her children of both marriages.

The fourth question made, is whether Mrs. Lewis, having taken a charter of the ferry on Tiger river, while she was the administratrix of her deceased husband’s estate, is not to be regarded as a trustee for that .estate, and accountable for rents and profits. This question is not without difficulty, but from analogy to the doctrine of renewing leases by trustees or tenants, I am of opinion that she must be construed a trustee. The general rule is laid down in *Pickering vs. Voivles,*1 Bro. C. C. 198. One of the earliest cases is that of *Keech vs.*Sandford, *'2*Eq. C. Ab. 741. In that case, the lease of the profits of a market was devised to a trustee, in trust for an infant; the trustee applied to the lessor for a renewal. He refused; upon which the trustee took a lease to himself. He was decreed to assign the lease. In *Tastor vs.*Marriott, Amb. 668, the residue of a term of twenty-five years was settled on a woman for life, remainder to her son. During the continuance of her life estate, she obtained an additional term of twenty-eight years, and devised it to a daughter. It was held to be engrafted in the old lease, and to go to the son. The lease was from the crown. The case of *Rawe vs. Chichester,*Amb. 715, is similar in circumstances ai,d principle. The rule is laid down, “ If trustees, mortgagees and persons interested, obtain renewal, the *8new lease is always subject to the trusts and limitations of the old.” In *Owen vs. Williams,*Amb. 734, the tenant for life, instead of a renewal, received a sum of money to induce her to forbear application for the renewal of a lease of Crown lands, and this money was held subject to the trusts to which the term was subject. In *James vs. Dean,*11 Yes. 383; S. C. 15 Id. 236, the husband save his wife a term for life. The term expired before his death, but at the time of his death he was in possession of the premises as tenant from year to year; the wife taking the residue of the yearly term, and obtaining a renewal, during that time, the new term was held subject to the limitations of the will. ***

It is to be observed, that in most of these cases there was no covenant for renewal, so that it was at the option of the lessors to renew or not; but, as it is said, there is a good will in favor of the former tenant, which gives him an interest in the renewal. The question is made, whether she can be regarded as a trustee in relation to this property. The contract of John Lewis was for the purchase of the land, with the unexpired term of the ferry charter annexed to it. It was part of her trust and duty as administratrix, to complete the purchase, by paying the money and taking a conveyance, and it is to be presumed she did so. Then she was in possession of all the land of the estate, and of the ferry, receiving the rents and profits. We have often decided, that from' necessity in this country, the executor or administrator may enter on lands for the purpose of keeping up the estate, and, no doubt, may receive tolls for fer-riage. This certainly imposes some trust, in relation to the property; that he shall do nothing to impair it. The doctrine of equity is, that any person entering on the land of an infant, is to be considered a trustee. I do not understand Mrs. Lewis to have been actually appointed guardian at that time; but she was entitled to the guardianship ; her children were incompetent to bring their claims to the view of the Legislature. They had that interest in the ' renewal of the charter of which the cases speak, and that claim on the good will and preference of the Legislature which we know, in point of fact, to be almost always shown to the former grantees and owners of the, adjoining land; and was it not plainly against equity, that disregarding this claim, she should procure the entire benefit to herself? Considering her possession merely as joint tenant, or tenant in *9common with her children, I have determined, during the present sitting, in the case of *Goulding vs.*Goulding, that the tenant in common in possession is a trustee, to preserve the estate for the rest; and having the claim to renewal, which they had, it appertained to the preservation of the estate, that if a new charter were obtained, it should be for their benefit, as well as for her own. Even at law, it is said that every beneficial act of one joint tenant shall bind the other, but not acts to his prejudice ; 3 Bac. Ab. 690, Tit. Joint Tenants and Tenants in Common, H. 3 ; and if one joint tenant make a lease by parol, or deed poll, reserving rent to himself, this shall enure to the benefit of both, (Id. 688, H. 1.)

It is argued that whatever may be the general law, the Act of the Legislature must prevail, which declares the franchise to be vested in her. But this is founded in misconception. It is not to derogate from or invalidate the grant of the State. Her legal title is acknowledged, but from equitable circumstances, which cannot be supposed to have been in the view of the Legislature, the court attaches on the conscience of the party to prevent her from retaining the issues and profits, to which she is not in conscience entitled. Such a grant of a franchise is different from an ordinary act of legislation, and partakes of the nature of a contract. It is borrowed from the prerogative of the Ciown, under the English law, and is subject to the same rules and construction; but, as we have seen, the general doctrine in question is applied to grants from the Crown. It is said that it is matter of public policy, that the Legislature should select a responsible and proper person, as the grantee of such a franchise, and that, they might well refuse to grant it to children. The answer to this is found in *Keech vs. Sandford,*already referred to. It is said by the Chancellor, “That it may seem hard that the trustee is the only person of all mankind who might not have the lease; but it is very proper that rule should be strictly pursued, and not in the least relaxed, for it is very obvious what would be the consequence of letting trustees have the lease on refusal to renew to *cestui que trusts.”*She was under no obligation to accept the charter for herself, even if the Legislature -had refused to renew in favor of the children, (of which there is no evidence.) She was bound, according to the authority, not to accept, and the court will not permit her to receive the benefit of her improper acceptance. — But all the purposes of public policy will be answered. No doubt she. was personally responsi*10ble for keeping up the ferry, and incurring the expenses necessary thereto, and also for damages arising from losses in transportation. The responsibility was of her own seeking. There is no doubt, however, that she is entitled to be indemnified for all such expenses and losses, except such as were incurred by her own actual neglect or mismanagement; and such is the tenor of all the cases.

The next point made, relates to the purchase of the land of the estate of Lewis, by the defendant’s intestate. The questions are raised, whether his estate is not to be charged with the advanced price at which he sold the *land, or*at all events with the sum of $1500, which he bid for it at the first sale. As to the last, I have no doubt. When a purchaser fails to comply with the terms of sale, and a re-sale is ordered, it is the constant course of the court, that the resale shall be at his expense; and this is implied', although it be not expressed in the order. The entry of the sale by the commissioner, is a sufficient memorandum in writing, to take the contract out of the statute of frauds, and the failure to complete the purchase would be a good ground of action for damages at law. As to the first of these questions, I am of opinion that McMeekin did stand in such a relation of confidence to the estate and children of Lewis, as to throw on him the burden of proving that he gave a full and adequate price *for the*property, and that on his *failing to do so,*his estate must be charged with the full value. I do not regard it as the case of a trustee to sell, purchasing at his own sale, in which the. purchase is to be set aside as of course, on the application of the parties interested. He was not a trustee, as the assignee was in the case *ex -parte Wiggins,*1 Hill Ch. 353. It was not his particular duty to do every thing that could be done, to make the property bring the best possible price. But I think it comes within the rule which applies to a trustee purchasing of his *cestui que trusts,*or to the purchase of an attorney or agent, or any other person standing in such a relation of confidence as gives one party an advantage over the other, in the subject of their dealing. As said by Lord Eldon in 6 Ves. 278, “he who bargains in matter of advantage with a person placing confidence in him, is bound to show • that a reasonable use has been made of that confidence; a rule applying to trustees, attor-nies, and every one else.” Nor does it make any difference that instead of bargaining directly with the persons to whom.he stood in the confidential relation, he bargained with the officer *?of the court, who was the agent of all parties in a judicial sale. He possessed all the advantages in purchasing as if he had treated with them. The same reasons apply for making his purchase subject to the scrutiny of the court, and several of the cases are of that character. I should think that he came within the rule, if there were nothing else, but that he was an administrator in possession of land. As I have said in the case of *Reynolds vs. /Scarborough,*Car. Law Jour. 110. “If a stranger knowing of a mine on a man’s land, of which the owner was ignorant, should purchase the. land without informing the owner, the purchase would be good — he. was under no legal obligation to give the information. But suppose the fact to be established by proof, that in consequence of his connection with the estate as administrator, the party had obtained knowledge of a mine in the land, would he be at liberty to purchase without disclosing his knowledge ? If he would not, it is clear that he does not stand in the relation of a stranger to the real estate. He is on a relation of confidence, giving him advantages in his dealings with respect to the estate.” He had a right to take possession and employ the land ; but if neither beneficial owner nor wrong doer, .he must be some sort of trustee, in some position of confidence. If he does not discover a mine, an administrator has advantages for ascertaining the real value of the estate. He is commonly in possession of the title deeds. The very fact of an executor’s or administrator’s bidding, is apt to give the impression that he is bidding for those entitled to the estate. If he had declared, at or before the sale, that he was bidding for the heirs, and then after getting the property for an under price, had claimed the purchase for himself, this would have been a plain fraud. But he might easily contrive to give the impression, without any express declaration to that effect. Evidence was offered of his declarations, after the sale, of his having purchased for the estate. This I think was admissible, ■not, as was objected, to establish a trust in land by parol, but to strengthen the presumption, that he might by some such means have affected the sale. But besides being an administrator, in possession of the land, he was the guardian of the children, and bound to protect their interest. It is true, it is stated that the commissioner of the court was their guardian *ad lilem.*But the duties of such a guardian I understand to relate to the conduct of the suit; certainly his appointment does not discharge the guardian in chief from the burden of shewing that he has *12taken no advantage of his confidential relation to them. If the intestate, McMeekin, had sold at an advance very soon after his purchase, I should have thought it conclusive that he had purchased at an under value, and that he ought to be charged with the advanced price. But there was an interval of five or six years between the purchase and sale. If he gave a full and fair price at the time, I do not think the purchase ought to be aflected, because subsequent accidental circumstances, or the prosperity of the country, causing a general appreciation of property, had given the land a greater value. There could be no presumption of fraud in such a case, and it is only as a security against fraud, that the rule in question is adopted. We know that in point of fact there was a great appreciation between the years 1830 and 1836. It is true that in the case of *Whichcote vs. Lawrence,*3 Yes. 740, a trustee was charged with the advanced price, obtained after an equal lapse of time. But that was a case of a *trustee to sell,*whose duty it was to make the property bring the best price. It was in proof that he knew more might have been got, and he had offered more privately himself. The property had been so divided for sale, as to make the part purchased by him of less value to any one else than to himself. A principal cause of the advanced price appears to have been the skilful division of the property into lots for sale ; which skill, the Chancellor said, the trustee was bound to have employed for the benefit of his *cestui que trust.*It appears to me to have been not so much a case of presumption to prevent fraud, as of actual fraud or breach of trust. In taking the account, defendant’s intestate must at all events be charged with the sum of $1500, bid at the first sale; enquiry must be made of the actual value at the time of sale, and if it should be found to amount to more, he must be charged with the actual value.

The next question is, whether the intestate McMeekin is not 'to be charged as for the rent of the land and for the hire of the slaves ; that is to say, whether he was not bound to let and hire, instead of keeping the slaves employed upon the land, and accounting for crops. As to this there can be no question. It has often been decided, that an executor may keep slaves employed upon the land, and I know of no decision or suggestion to the contrary. In some cases, when the executor has failed to return an account of crops, he has been charged as for rent and hire, but never when he has accounted; and I think executors and administrators are to be encouraged to this course, and *13very indulgently considered when they adopt it. It adds a good deal to the trouble of management, and consequently they are tempted either to apply for a sale of the property, or to let the land and hire the slaves. I have no doubt but that in general a greater income may be obtained by letting and hiring, but the consequence very commonly is, that the slaves are not0 so well treated, there is less increase, and they are morally injured ; the soil is exhausted, and buildings, fences and fixtures dilapidated ; so that at the expiration of the trust, though a greater income may have been obtained, it is more that compensated by the depreciation of the capital. If by the gross neglect of the executor he should fail to make such crops as he ought to have made, he would of course be responsible for the deficiency, and this disposes of the next question made, to wit: Whether defendant’s intestate is entitled to credit for “carriage, horses, corn, (fee., purchased for the use of the plantation.” If it was competent to him to keep up the plantation, it was also competent to purchase such supplies of any kind as were necessary and proper for keeping it up ; of course I do not decide what sort of articles were necessary and proper for the use of the plantation. That must be a subject of investigation on the reference.

The last question made was whether defendant’s intestate had a right to charge the children of his wife’s former marriage with board. An authority was quoted, Reeves’ Dom. Rel. 74, to shew that a husband who receives an estate with his wife, is bound to maintain her children of a former marriage. But this must be peculiar to the State of Connecticut. The case of *Tubb vs. Harrison,*4 T. R. 118, shews that such is not the law of England, and the question only came to be made there in consequence of the stat. 43 Eliz. c. 2, s. 7, which has not been made of force in this State.

There is no doubt but he might make such charge. It is ordered, that an account be taken in pursuance of the directions given.”

In June, 1842, the case came up, on exceptions to the report of the referee, before Dtjnkin, Chancellor, whose decree, upon the complainants’s exceptions, was, *inter alia,*as follows.

“ This cause was heard by Chancellor Harper, in June, 1840, and under his decree was referred to J. J. Pratt, Esq. special referee, the commissioner of the court being the defendant. His report is very full, is presented with great clearness, and ex*14hibits a patience of investigation, and a single view to do justice, which is worthy of all praise.

The first exception* seems to be met by an application of the principles of *Spann vs. Jennings,*1 Hill Ch. 324, to the circumstances of this case. The exception is over-ruled.

The second exception is because the estate of McMeekin has not been charged with the price at which McMeekin sold the land, purchased by him at the commissioner’s sale, to Henry Rogers, to wit: $4750. On this exception the referee remarks that he “only charged the estate with $1500, being the amount bid by McMeekin at the first sale, because he understood that to be a settled point. If, however, he is mistaken in this, he awaits the further directions of the court.” Certainly this is a misapprehension. The decree of Chancellor Harper directs that in any event McMeekin’s estate should be charged with his bid at the first sale, even if the second sale was supported, as the second sale must be regarded as made on account and risk of the former purchaser. In respect to the character of the second sale, the Chancellor does not regard it as the case of a trustee to sell, purchasing at his own sale, in which the purchase is to'be set aside, as *of*course, on the application of the parties interested, but that McMeekin came within the rule which applies to a trustee purchasing of his *cestui que trusts ;*that he stood in such a relation of confidence to the estate and children of Lewis, as to throw on him the burden of proving that he gave a full and adequate price for the property.

It may be as well to advert to the circumstances under which this sale was made. McMeekin had married the widow of Lewis, was administrator of his estate, and guardian of his children. He applied to this court for partition of the estate of Daniel Brummet and John Lewis. The widow of Brummet, and children of Lewis, were parties defendants. At June Term,1829, a sale of the real estate of Daniel Brummet and of John Lewis was ordered. In June, 1830, the commissioner reported, among other things, that he had sold a tract belonging to Lewis’s estate, containing 430 acres, to McMeekin, for $1500, but that he was unable to comply with the terms. He recommended that this tract of 430 acres, and a tract of Brummet’s estate of 256 acres, be re-sold. An order was entered, directing a re-sale of these two tracts, on a credit of one-third till 1st January, and the *?balance in two equal instalments, from the first of January. At this second sale in September, 1830, McMeekin became the purchaser of the Lewis tract for $1100.

At the lowest estimate fixed by any of the witnesses, this land (the Lewis tract,) was at that time worth $4- per acre, or $1720. The greater number fixed the price at from $6 to $7 per acre. Admitting then that this is not a case in which the sale would be set aside, *as of*course, at the instance of any of the parties interested, yet when the purchaser has wholly failed in his attempt to shew #iat he gave a full and adequate price for the property, he can derive no advantage from the purchase. For myself, I am prepared to hold that in such case, in the language of Lord Eldon in the case cited in the decree from 6 Ves. 278, “even a benefit arising by accident, upon the principles of this court, should accrue to the plaintiff.” If a trustee buys from his *cestui que trust*bank stock at $50 per' share, which is proved to be at the time worth $100, it seems not doubtful that the *cestui que trust*might avoid the sale, and that the trustee would not be permitted, against the consent of the *cestui que trust,*to keep the stock, on paying what would have been a fair price at the time of sale. He cannot have any advantage from his own wrong. If the stock had risen in value, I should be of opinion that the sale being invalid, on principles of policy the enhanced price should enure to the benefit of the *cestzii que trusts.*In Sir Edward Sugden’s treatise on Vend. 434, (2d. Amer. fr. 5th. Eng. ed.) he says, “if the trustee has actually sold the estate, the *cestui que trust*may compel the trustee to pay him what he may have received above the original purchase money.”

It is proved that about 1836 McMeekin sold this land to Henry Rogers, for about $7 per acre, or $3000 for the 430 acres which he had purchased for $1100. It is said that land had in the mean time appreciated. Granting to the defendant the full benefit of the position, that the complainants are not entitled to the appreciated value, it seems to me incumbent on him to prove clearly, not only that lands had appreciated, but that this land had also appreciated, and that the enhanced price which he received was in consequence of such appreciation. It being established that he sold the land for $3000, the *onus*is on him to prove that it was not worth this sum at the time of the original sale, and in weighing the testimony the scales should not be very nicely balanced in favour of a trustee claiming this advan*16tage. The evidence on this point was all taken by the referee, and is submitted with his report. The court can only state what seemed to be the general result. Some fifteen witnesses were examined; of this number seven testified that in 1830 this land was worth $7 per acre, or about $3000. One valued it at $6. One from $5 to $6, and three witnesses said lands appreciated 50 per cent from 1829 to 36, and that they should think such lands in 1830 not worth more than $4; but, as I think, they all three stated that they did not know these lands well, or had only seen them from the road. W. Kelly, however, said that the improvements on the Lewis tract were worth $1000 ; that a good gin house and screw were worth $500. It appeared that the improvements had all been put on the land by Lewis. The court is unable to say what degree of credit should be attached to the witnesses respectively, but on this testimony it would be difficult to pronounce that $7 per acre is more than the tract was worth. In 1830, lands appreciated in value, but improvements made in 1830, and then worth $1000, may, under the thriftless management of McMeekin, have deteriorated in 1836. There was some testimoney too that the ferry was not so valuable. One witness, Johnson, said he thought that at the commissioner’s sale the land belonging to Lewis’s estate would have brought $3000, if people had known it to be free of incum-brance. The testimoney was, altogether, not very conclusive and satisfactory, but sufficient, as it appears to the court, to charge the defendants’s intestate with the price at which he sold the land to Henry Rogers, Esq. This exception is sustained.

The third exception is because the intestate’s estate was not charged with the rent of Lewis’s land and hire of the negroes, while in possession of McMeekin, in consequence of his entire mismanagement.

The principles on which this exception is to be determined are stated in Cancellor Harper’s decree. The difficulty exists in the application of the testimony. Both parties seem content to be governed by the decree.

McMeekin married the widow of Lewis in the latter part of 1825 or early in 1826. He did not make the crop of 1825. Lewis left five or six children, all of whom were living with their mother. The estate was, kept together until 1830, when the lands were sold and the negroes divided. For the intermediate six years the administrator is accountable. He rendered returns to the Ordinary irregularly, but it was not suggested *?that the returns were unfair, or that they did not contain a correct statement of cotton actually made and sold. The objection is, that with the force under his charge he should have made much greater crops. That the result proved gross negligence, and that he should be held to account for the rent of the land, and the hire of the negroes, without reference to what he actually realized.

The court is not in possession'of such testimony as would fix with accuracy the task hands belonging to the estate of Lewis, while it remained undivided. Probably there were from 15 to 17 out of a gang of about 40 negroes. The year before Mc-Meekin took possession, only 15 bales were made. In 1826, the crop was 36 bales. In 1827, only 17 bales. In 1828, 50 bales. The average crop, as far as the court can judge, did not exceed 37 1-2 bales. Then he frequently bought corn, and sometimes pork. Compared with some of his neighbors, his crops were very inferior; and both from the result, as well as the testimony of several witnesses, he was evidently an indifferent, perhaps a bad, manager. But I do not understand this to be enough in order to subject him to the severe rule implied in this exception. McMeekin was an honest man ; all the witnesses bore grateful testimony to this trait in his character. He kept the large family of his intestate together for six years, and he made no charge for the board of the children, or for his own services in the management of the plantation. The court would rather infer that while sober he was an industrious man, and his evil habits of intemperance were not observed (if they existed) until about 1831 or 1832, after the division of the estate. To sustain this exception, the court should be satisfied that it would have been better to have treated the children of Lewis as strangers. Under similar circumstances every prudent administrator would hereafter rent out the land and hire out the negroes, and would probably be compelled to board out the children. The effect' of such course might be easily predicted. In the opinion of the court, every case of this character must be governed by its own peculiar circumstances. This was notan out place, for the profits of which an agent or manager might be strictly accountable. McMeekin probably acted according to his best judgment, certainly in good iaith, and the court concurs with the referee that his returns should form the measure of his responsibility. The exception is overruled.

4th. exception. Robert N. Lewis, the uncle of complainants, *18died in New Orleans. In 1836, McMeekin went on in person to attend to the estate. He received about $6000 belonging to his wards. On his return he settled, in December, 1836, with the complainant, P. M. Huson, for his wife’s share, and he also settled with D. B. Lewis, retaining the share of two minors. In settlement with Huson and D. B. Lewis, he charged for his ex-pences, services, (fee., on the trip, and receiving and paying over the money, a gross sum of $800, in lieu of commissions and other compensation. Huson and Lewis seem not to have been dissatisfied. On the part of the minors, it is excepted that this amount exceeds the lawful commissions of a guardian, and should not have been allowed. Certainly the guardian was not bound to go beyond the limits of this State in prosecuting the rights of his wards. He had no legal authority as guardian in Louisiana. The courts in that country might, and probably would, order the fund to be paid to the guardian in South Carolina, as the courts in this State have sometimes done, and sometimes refused to do. If he had found it necessary to employ an agent to go on and take papers or receive money in Louisiana, belonging to his wards, he would be reimbursed any moneys he might properly pay such agent. He went himself. The reasonableness of the charge is established by the fact that the adults, whose interest was the same, made no objection. I think the exception should, be over-ruled.

The report is recommitted to the referee, to be reformed on the principles of this decree.”

The case again came up, in June 1843, on exceptions to the report of the referee, before Johnson, Chancellor, who decreed as follows.

“This cause is now before the court for *the*third time. The bill is for an account and settlement of the estate of the defendant’s intestate, and involves the settlement of several other estates of which he had been the administrator. It came up for hearing before Chancellor Harper, at June Term, 1840, who laid down, very fully and clearly, the general principles on which the accounts were to be stated, and the defendant being commissioner of the court, the matters of account were referred to Mr. John J. Pratt. At June Term, 1842, the case again came up on exceptions to Mr. Pratt’s report, Chancellor Dunkin presiding, and an order was made, referring back some of the matters of account with instructions. An amended report has been made, and the case is now before the court on exceptions *19to that report. For the general history of the cause, and for the details of the matters of account, I refer to the decrees and reports heretofore made, and will proceed directly to the consideration of the questions raised in the report and exceptions now before me.

Of complainant’s first exception : It is because the defendant’s intestate is not charged with the rents of the land and ferry from 1830 to 1836, during which time he had them in possession. To understand this exception, it. will be necessary to refer back to the previous proceedings in the cause, for the circumstances under which the intestate kept the possession of the land and ferry from 1830 to 1836. From these, it appears that the land was sold by the commissioner, under an order of court, in September, 1829, and was bid off by the intestate, at $1500. He neglected to comply with the terms of the sale, and at June Term, 1830, an order was obtained for a re-sale. At this sale, which was made in September following, the intestate again bid it off, at the sum of $1100, and in 1836 he sold the land to Henry Rogers, 'for $3000, he, the intestate, having had possession of the land and ferry in the intermediate time. No question was raised as to the validity of the sale to Henry Rogers, but the complainants insisted that he was bound to account for the amount at which he sold to Rogers, and this gave rise to the various questions whether he was bound to account at that rate, or at the price at which he bid it off at the first or second sales made by the commissioner of the Court. The report charges the intestate with the crops made on the plantation as substitute for land rent and slave hire, and with the rents of the ferry up to the end of the year 1830. Nothing is said in either of the decrees as to the intestate’s liability for the use and occupation from that time down to the time intestate sold to Rogers, and the referee remarks on this exception, that he has refused to allow any thing for it now because the claim has not been before made. The question is not, I-think, concluded, by the omission to make it heretofore. The object of the court is to do equal justice between the parties, consistently with the rules of law, and that object would be violated if the rights of a party were suffered to be compromitted by mistakes or omissions of himself or counsel, whether from mere neglect or ignorance, if the correction of them neither delayed or injured his adversary. The case of *Price vs. Nesbit,*1 Hill Ch. 445, is a memorable instance in which the. court permitted the party to open a decree after it had been *20confirmed by the Court of Appeals, and let him into an examination of its merits, on the ground that a fragment of the cause remained undisposed of, and left it in the possession of the court. The claim is the more reasonable here, because the court are already in possession of all the facts necessary to the determination of the question raised by the exception. To get at the merits of the question, we must go back to the decrees heretofore pronounced, and ascertain the principle on which the court proceeded in declaring the intestate liable for the price at which he sold to Sogers. The question came before Chancellor Harper, who, under the 5th head of his decree, expresses his opinion that the intestate was bound to account for the value of the land at the time he bought at the commissioner's sale, and directed an inquiry as to the value. He put it on the rule which applies to a trustee purchasing from his *cestui que trust,*or to the purchase of an attorney or agent, or any other person standing in such a relation of confidence as gives to one party an advantage over the other in the subject of their dealing, according to which it is incumbent upon the purchaser to show that he had paid the full value. The question of value was first heard by the referee, under the order of Chancellor Harper, and from what I collect from the summary of the evidence detailed in Chancellor Dunkin’s remarks on the complainants’s second exception, there was great diversity of opinion amongst the wTit-nesses, as to the value of the land — some estimating it at as low as $1720, one at about $2680, and the majority at about $3000. The referee, notwithstanding, charged the intestate with $1500, the price he bid for it at the first sale, in pursuance of what he supposed to be the opinion of Chancellor Harper, and the complainants excepted to that report, on the ground that he ought to have charged him the price at which he sold to Rogers. This exception was argued before Chancellor Dunkin, who, after a careful examination of all the facts, sustained the exception, and referred the matter back, with instructions to make up the account accordingly, and the referee has, in pursuance of it, charged the intestate with $3000, as of the day on which he sold to Rogers. When the exception now under consideration was argued before me, I was strongly inclined to think it had merits, and indicated that opinion. But on a further examination into the evidence, I regard it as *res judi-cata*— and it will be observed that the question of rent or the interest on the value was not raised in the exceptions heard by *21Chancellor Dunkin, nor is it noticed in his decree. He simply sustains the objection, which, in effect, entitled the complainants to what they asked for in the exception, the price paid by Rogers for the land, and that, of course, referred to the time when the money was paid. To that I have no authority to add, either in the form of rents or interest on the money value. I am inclined to this conclusion from another consideration. The Chancellor himself remarks, that the evidence of value was by no means satisfactory, and on looking through it, it will be seen that it is impossible to extract from it any thing like a certain value at any precise time; and if the matter occurred to the Chancellor at all, I can well suppose that as a mean of compromising- the conflicting opinions of the witnesses, he fixed on a sum in gross as the measure of all the complainants’s claim on account of the sales; and there is nothing in the decree which indicates a different opinion. This exception is, therefore, overruled.

Of complainants’s second exception. The referee remarks upon this exception, that complainants are only charged one dollar for commissioner’s fees for recording and filing intestate’s annual returns as guardian of Mrs. Huson; and that is the sum allowed by law for that service. The’ additional charge of three dollars, complained of in this exception, is charged, I understand, for the commissioner’s annual report on the guardian’s accounts, and that is the sum allowed by the Act for each report. Exception overruled.

The defendant has also filed a single exception to the report, but that was not insisted on, and very clearly has nothing in it. It complains that although he is charged with the advanced price at which his intestate sold the land, no allowance is made for his commissions or expenses in effecting the sale. The decrees heretofore made’in this cause, put the defendant’s intestate on the footing of a wrong doer, in purchasing and selling, and I can hardly suppose the counsel in earnest in supposing that that would entitle him to a reward — overruled.

It is ordered and decreed, that the report of Mr. Pratt, the referee, be confirmed in all its parts, and be made the judgment of the court.”

The complainants appealed, on the grounds,

1. Because the defendants’s intestate was entitled to but one-third of Mrs. S. Brummet’s estate.

2. Because the intestate was entitled to only one-ninth, instead of one-third, of John Lewis’s estate.

*223. Because the intestate should have been charged with the rent of the land and the hire of the negroes, and should not have been allowed his charges for horses, mules, hogs, &c. purchased for the farm.

4. Because the complainants are charged with their education and maintenance, when the intestate had received an ample fortune with their mother, and had often declared he would not charge them.

5. Because ihe intestate has been allowed an extravagant charge for collecting the estate of Robert N. Lewis.

6. Because the intestate is liable for the rent of the land and ferry, from 1830 to 1836.

*7.*Because thé proceedings in the case of *Thomas McMeekin and wife vs. S. Brummet et al.*are not binding *on*complainants, as they were minors at the time.

8. Because the intestate is credited with four dollars each year for fees paid the commissioner for receiving his return as guardian.

The defendant also appealed from Chancellor Dunkin’s decree,

Because it directs the estate of defendant’s intestate to be charged with the advanced price for which he, (the intestate) sold the land purchased by him at the commissioner’s sale, as the property of the estate of John Lewis, instead of the price at which he bid off the land.

Failing in this, he then appealed from Chancellor Johnson’s decree,

Because it refuses to allow defendant’s intestate commissions on the advanced price of the land, which he is required to account for by the decree of Chancellor Dunkin.

*A. W. Thomson,*for the complainants.

Dawkins, contra.

*

**Vide Lewin on Trusts and Trustees, 203. ” 24 Law Lib. 103. R.

*

Same as the 1st. of complainants’s grounds of appeal;

*Curia, 'per*Dunkin, Ch.

It is not proposed to discuss, *seri-atim,*the grounds of appeal from the several decrees which have been pronounced in this case.

The complainants’s first ground of appeal was that which was most pressed upon the consideration of the court, both here and at the circuit, to wit, that the defendants’s intestate had been credited with the whole of Mrs. S. Brummet’s estate, whereas he was entitled only to one third, as he took possession of the same without an administration.

Mrs. S. Brummet died intestate in 1832 or 1833, leaving as *23her only distributee and next of kin, her daughter, Mrs. Mc-Meekin, the wife of defendant’s intestate. McMeekin took possession of the estate and held it. His wife died in February, 1835. It is insisted on the part of the complainants, that the marital rights of McMeekin never attatched,. and that the complainants are entitled to two thirds in right of their deceased mother Mrs. McMeekin.

*Marsh vs. Nail*was decided by the Court of Appeals, at Columbia, in January, 1832. Dicey Glover died intestate in November 1823, leaving, as her only distributee, Sarah Nail, the wife of John Nail. On the death of Mrs. Glover, John Nail took possession of her property without administration or other legal authority (in the language of the decree) and held it till his death in November 1825. His widow, in October, 1826, intermarried with John Marsh, who took out letters of administration on Mrs. Glover’s estate and claimed the property. It was not alleged that there were any debts of her estate. Chancellor Desaussure held that the marital rights of Nail had attached, and that, under the circumstances, no administration was necessary. In affirming the decree of the Chancellor, the Appeal Court say, it would be very unreasonable to require an administration where there were no debts, where the wife was the only distributee, and there could be no partition. *Mutate*nomine, *that*is *this case.*The whole court, consisting of Justices John-soN, O’Neall and Martin, concurred in the judgment. In *Spann vs.*Jennings, 1 Hill Ch. 324, Chancellor Harper, recognizing the authority of *March vs. Nail,*says, “James L. Spann was entitled to the administration in right of his wife. But to what purpose should he have administered'l There were no debts to pay, and no distribution to be made. Was it simply that he might take possession in his own right ? That would have been going through merely a nugatory ceremony. Or if any other person had administered, could the property have been recovered from him *1*No. By going into Equity and shewing that there were no debts, and that his wife was exclusively entitled, a recovery at law would have been restrained. In every point of view, then, administration would have been superfluous.” But if a nominal administrator would be restrained, on the ground that there were no debts, can the complainants make a better case *1*If, as in *Marsh vs. Nail,*the claim of the wife surviving was rejected, can the distributees of the wife be entitled to more favor *1*We think not.

*24The fourth ground of appeal insists that the defendant should . not have been allowed for the board and maintainance of Lewis’s children, when he had often declared that he did not intend to charge board. The court is quite satisfied with the principles of the decree of June, 1840. No allowance is made for board while the family and their property were kept together. After the land was sold and the negroes hired out, board is charged and allowed. The referee thought the declarations of the intestate related only to the *former*period, and the court sees no cause to question the correctness of his conclusion.

It is also insisted, that the defendant’s intestate should have been charged with the rent of the land and ferry from 1830 to 1836. The court is constrained to say, that this objection comes too late. The report of the commissioner was made in 1842 ; many exceptions were taken, but no objection was made on this ground. So far as the exceptions made were not sustained, that report became the judgment of the court. The door of litigation must at some time be closed. It is a relief to the court to feel, that although the complainants are not now permitted to agitate this question, they have, probably, no cause to complain of the general result in regard to the ferry and the land.

And in this connexion it may be as well to consider the defendant’s ground of appeal, to wit; that the intestate was charged with the advanced price for which he sold the land, instead of the price at which he had bid it *off*at *the*Commissioner’s sales.

At the first sale, the intestate bid olf the land for $1500 ; at the second sale, for $1100. According to the lowest estimate placed by any of the witnesses, the land was, at that time, worth $1720, or $4 per acre. There seems, then, no ground whatever to maintain that the intestate should only be charged with the sum at which he had bid off the land. But he acted in good faith, and a difference of opinion may well exist as to the sum with which he should be charged. Five or six years after-wards he sold the land to Henry Rogers for $3000. Out of the fifteen witnesses examined, seven regarded this sum as a fair price for the premises in 1830, when it was bid off by the intestate. • Others thought less. The Chancellor, regarding the *onus*of proof as on the defendant, and that the intestate *ought*not to make any profit out of those standing in the relation of the complainants, has fixed the amount to be paid at $3000. The average price-, at the sums fixed by the witnesses, would be *25$2548. But this would be a very unsatisfactory standard. We might send back the case for further examination before the referee, but the defendant prefers that this protracted litigation should be closed, if there be no other ground for opening the report.

The complainants’s eighth ground of appeal is well taken. The referee has allowed $4 as costs paid to the commissioner on each return of a guardian. The Commissioner is entitled only to one dollar, as was decided in *Prince vs. Logan,*Speers Eq. 29. In this respect, the referee must correct the account filed with his report. But this is a mere ministerial act of the commissioner or referee, which does not require the further interference of the court.

On all the other grounds taken, both by complainants and defendant, the appeal is dismissed, and it is further ordered and decreed, that each party pay his own costs.

Harper and Johnston, CC. concurred.

Johnson, Ch.

I doubt whether the purchase made by the defendant’s intestate at the sale of the real estate, comes within the rule applicable to purchases made by persons standing in a fiduciary relation. That applies more immediately to contracts made between a trustee and *cestui que trust.*This was a sale made under the authority of the court, over which he had no control. In all other matters, I concur in the opinion of the court.