[Present, Chancellors Kutieege, Mahshaie and James.]

#### James Shoolbred, *vs.*Charles and Thos. Drayton.

Three executors who were residuary devisees, had sold the real estate for a division upon credit, and divided the bonds equally amongst themselves ; and one of them had pledged the bond that fell to him to his private creditor. Afterwards, the court at the instance of another heir, set aside the sale, decreeing that the estate was divisible into four shares instead of three, and that the sale was unauthorized. Upon a re-sale, the creditor to whom the above pledge was made, shall come in for the one fourth that would belong to the devisee who made the pledge, although it may leave an unequal pressure of debts on the other executors who assented to the sale and division.

THE case made by tbe bill was this — that tlie defendants, together with their brother Glen Drayton, were the sons and executors of John Drayton, deceased. That in the year 1779, they divided the estate of^.heir testator amongst themselves, each taking one third part. That one pari of the property so divided, was a house in Dread-street, which they sold for the purpose of division. That 3pi. Chanler became the purchaser, and gave bis three bonds for the purchase money, secured by a mortgage of the property *;*and each executor took one bond to him - self as bis portion or share of that property. That Glen Drayton was indebted to William Smith Sc Co. on a bond dated 7th March, 1783, for 720/. 7s, on which, judgment was entered up 17th Oct. 1791 — --execution issued in May, 1792, and levied by sheriff Posted on a large gang of negroes held by G. Drayton. That complainant became administrator of William Smith, to whom G. Drayton owed sundry monies on accounts- — these were liquidated with complainant, and G. Drayton gave his bond, dated 17th May, 1792, for the further sum of 684/. 11s. *4d.*and *247confessed judgment thereon 27tb May, 1792, on which execution was issued and levied in like manner as above. *On the*faith of these levies, and at the strona solicitations *of*G. Draytoii?: and repeated promises of payment, a series óf indulgencies were granted him. As a further security, he deposited with, complainant one of the above bonds, made payable to the three executors, being the one that had fallen to G. D. on the division, which bond was for the sum of *130Si. 4s.*which bond the said G. Bray-ton then alleged was exclusively his own, and on which it appeared he had received sundry payments from Dr. Chanler. That cbmplainant gave notice to Dr. Chan-ler, and believes the transfer was known to the defendants| that no objection was ever made. That G. Drayton had for many years held a large real and personal estate as his own, which was never questioned by his brothers, on the faith of which, creditors had extensively trusted him. — ■ That in the year 1792, the defendants filed a bill against the judgment creditors of G. Drayton, stating that the brothers had divided the estate, on the mutual principle that each one was to pay his own share of the debts. That G. Drayton had involved himself extensively, and his creditors were about to take the property obtained ' from his father’s estate under their executions : and this court, at their instance, granted an injunction to restrain the private creditor's : that defendants then let the business rest for years, and suffered their brother, G. Drayton, to make Crops and use them. That complainant employed counsel to urge his particular claims, but was told at a late stage of the cause, that not being named a party, he could not be heard except on an original *bill;*and the court proceeded to decree in that case, that all the lands that had been bequeathed by the testator to his son John, and which were directed to be sold in the event of his death, and whichr-had been sold by the executors, shouldbe re-sold by the executors under the directions of the master; which decree comprehends the aforesaid house, and the bonds takeq from Dr., Chanler for the purchase of it, and operates to *248cancel the bond, so as aforesaid transferred to complain*ant. That the said decree goes to defeat the creditors of G. Drayton, and the legal liens they had obtained: and although the court did not consider such claims as sufficient to bar the remedy of the creditors of John Drayton the testator, and the minor heirs of his son John, yet that those objects are duly, provided for: and therefore the court ought to hold the defendants shares of the estate answerable for the re-imbursement of G. Drayton’s ere* ditors, who ought not to be sacrificed for defendants safety *;*as they being executors, fully assented to the division, and to G. Drayton’s holding his own share, absolutely, and freely incumbering it. And especially, that they ought to be decreed to indemnify complainant for, the rescisión of the sale to Dr. Chanler at their instance, so as to make good the amount of the bond that had been transferred by G. Drayton by their sanction. That this was the security for indulgence, and complainants might have sold the negroes levied upon as other creditors had done, and the property would have been out of the reach of the defendants, and the debts have remained upon them.

*247JUNE, 1804.

*248The defendants in their answer, admit that the debts stated to be due from G. Drayton to complainant, may be truly due.- Also that indulgence might have been given, but not at the request of defendants. They admit that the bond of Chanler was allotted at the division of the estate to Glen Drayton, being his share of the sale of the house in Broad street. Also that G. Di'ayton received payments thereon, and that he deposited the bond with complainant, tho’ defendants do not know for what purpose j but believe it may have been about the time and for the purpose in bill stated. But they own that at the time they divided and allotted the bonds, they did believe that each was entitled to one third of the house. But this court in March, 1793, in the case of the heirs of John Drayton the younger, against those defendants, determined that each was entitled to only one fourth, and defendants did not then know of the transfer of the bond to *249the complainant, nor for a long time after, but it was kept a profound secret from both. That their bill was filed for an injunction, 3d. July, 1792, and the time of depositing the bond inNovember, 1792. That defendant Charles Dray-ton found it out by applying for it to secure himself when *G.*Drayton informed him he had parted with the bond. That he was his surety for 3000 guineas, which he has been obliged to pay, and was as ignorant of his circum • stances as the rest of his creditors.

That the debts due to complainants were contracted in 1780,1781 and 1782, long before the bond was in existence, and could riot be contracted on the faith of it, and that the execution could not bind it. As for not restraining G. Drayton from taking the crops during the long pen-dency of the suit, it Was not advised by counsel, probably from not deeming the crops liable to his-proportion of testators debts. That the bill and answer were lost fot several years, and the creditors might equally have taken measures to urge the suit. That complainants case is not stronger than those of the other creditors of G. Dray-ton, concerning whom the court have already decreed; and as to the bond, complainant could have no more than an equitable claim, nor stand in a better light than G. Drayton himself, who could have no right until his proportion of his fathers debts was paid. That at all events his proportion of the house was only one fourth instead of one third, and he has probably received that amount in the payments that have been made to him on the bond. That this court having determined that the sale of the real estate including this house, was void, the bond and mortgage must be so too.*

*250íhis case was argued by Mr. Fono and Mr. Wk. L* Smith for the complainant, and by Mr. Parkeh for the ¿efendant. But as the grounds of argument were similar

*251,to those used on either sid,e in the case of the executors of J. Drayton v. G. Drayton and others, £Ante, vol. 1, p. .557,562 ike.) it is deemed unnecessary to detail them here.

*

 This determination of the court will be found in the decree delivered Sept. 25,1794, decree book, vol, 1, p. 177, which is accidentally omitted to be inserted in this work. It was the sequel ofthe suit of John Drayton, for self and minor sister, v. Charles Drayton and others, executors of JohuDrayton, reported Ante, vol. 1, p. 324; and the decree should have been inserted in the 1st. volume. It is now inserted, and was" as'follows : *250John Draxton, *et al.*vs. Charles, Giemt and Thomas Dravton. DECREE.

The point principally litigated in this case is, whether the defen-¿ants shall beheld to their respective purchases of land belongingto fat]lel.>s estate, which they advertised and set up to sale in February, 1786, or whether the lands shall Be re-sold. Upon a review of the testators will, it does not appear that he has given any authority to these executors to sell any part of his estate, not even the lands in question, although he has directed them to be sold in the event of his son John’s death during his minority, and without issue: nor has he authorized his executors to make a division of the real and personal estate bequeathed to John, or of his the testators residuary estate, although he has directed that such division shall take place: so that in these respects, the will is very defective. It has never been questioned that where a testator directs his estate to be sold, but gives no power to his executors to sell, that in such cases, a sale by the executors is illegal, and there have been various instances where executors in those cases have applied to this court to sanction their sale, which has always been done.

In the present case, the defendants conceiving that upon John’s death, they were exclusively entitled to the estate bequeathed to him, proceeded to a sale of the lands directed to be sold, in order as they expressly swear, (and their answer stands uncontradicted by any evidence) to make a division of the money, but no other person bidding except in oneinstance but the person, authorized *by defendants;*they were bought in *by*defendants in such parcels as best suited them. Impressed with these ideas, it was not very material whether the lands sojd at a higher or lower rate, if their depreciation purchases were nearly for the same price; as in such case, either would have but a small sum to pay the others, It was contended that as complainants were minors at the time of sale, and there are creditors also interested, their rights should be particularly attended to by the court, and defendants ought therefore to be held to their bargaih. — - Though the claims of minors and creditors should be protected, it must notbe done to the injury or oppression of the adverse party, who may have acted incautiously, but without any intention of fraud. If there was any evidence whatever before the court, which shewed that the defendants'were apprized of complainants right, and yet persisted in the sale, notbeing authorized by will to make it, the court would be strongly inclined to hold them to their purchase.— But defendants have positively sworn that the sale was made from ft misconception oftheir right, and for the express purpose of a divi-*251Aon. — That no titles have ever heen made, nor indeed could they have been properly or legally made. But it was said complainant J.

D. who is the heir at law, is willing to make them titles. We ask, wouldhe have fyeen willing to .pi .ke titles, had the defendants bought inthe lands for atrifle? .Onthebther hand, would he not then have requested the court to protect him in liis right ? As the court would not have confirmed the sales^if the lands had been sold at a low price, purely on the principle thut|he executors had done an act which they werenot authorized to do either by the will or the law; so neither ought the court to oblige the defendants to abide by their purchase, made under a sale which they/were not warranted in, and under a misconception of their right, witttout any intention of fraud or deceit. The court are therefore of opmion and decree, that all the lands devised by testator to his son John, jj( which he directed tobe sold on the event of his death) shall 'be forthwith re-sold by the executors under the direction ofthe master, on a credit of one, two and three years, taking bond from the purchasers, with a mortgage ofthe premises. Also that the personal estate, and such other parts of the real estate as John Was entitled to under his father’s will, and not directed to be sold, to be divided by three persons chosen for that purpose, into four equal parts or shares, and that one of such fourth part or shares, shall he delivered over to the complainant John Drayton for the benefit ofthe estate of William H Drayton, deceased, h'e to he accountable for a proportionate share of testator’s debts as were chargeable on his residuary estate, Also, that it be referred to the master to ascertain andreport, what shall he a fair and reasonable sum of money to be paid by defendants for the use of the lands which they purchased, from the time oftheirpurchase respectively; and also what may he a reasonable allowance for the work and labor of the negroes complainant maybe entitled to; tQ be computed from the death of testator’s son John to the time when the division shall be made, deducting thereoutthe expences of taxes and clothing ; that the master shall examine and ascertain what sum of money was allowed or paid by defendants to Mrs. D. for her dower in John’s lands, and the residuary real estate of their testator, and debit complainants with one fourth part thereof in his settlement of accounts. And lastly, that the defendants do pay the costs of this suit out of the sales of the estate.

Chancellor James

delivered the decree of the court as follows:

This case differs from that heretofore decreed between *252*the*executor of J. Drayton, and the creditors of *Glen*Drayton, in one circumstance only, and that is, with re,-spect to the bond in question of Dr. Chanler, for complain-had obtained judgment and execution, andtheexecution was levied on the property in Glen Drayton’s possession, in May,’92, prior to the delivery of the bond to him. It is to be observed that Chanler’s bond formed no part of the security for the debt jn the first instance, and was considered in no other light than merely as a collateral security when received, according to complainants own statement ; because though it amounted to nearly as much as Glen Drayton’s debt, it was not taken in payment 'or satisfaction, for the judgment and execution still subsisted to be enforced at the pleasure of the complainant. The conduct of the defendants has been arraigned for delivering up this bond to Glen'Drayton as his property, thereby giving it a currency,'whereby complainant was induced to forbear enforcing his execution, and recovering his debt. If there appeared the smallest tincture of fraud in the defendants conduct, the court would lay hold of it to make them personally responsible for this debt: but when it is considered that the division of their testators estate was first made during the invasion of this country by the British, when ho man could call his property his own one moment; that itwas then made evidently for the benefit of all concerned: That every thing continued in á state of 'confusion for several years afterwards — when it is considered that defendants looked on the propeity as their own when they made the division, but had. misconceived their rights-; and it was not until some years after when their mistake was corrected by a decree of this court': When all these circumstances combined together are considered, they weigh strongly with the court not to make the defendants personally responsible; The first part of their conduct being justifiable, and the second in a great measure excusable. Besides a custom had too commonly prevailed, and in some instances had been sanctioned by the court, of dividing estates among the heirs and devisees before the debts *253,were satisfied. The inconvenience of such a practice has been seen by the court, and severely felt by creditors, and we trust will never occur again. Complainant states that he forbore to enforce his execution on the appeal of Glen Drayton’s friends, and in consideration of this bond being deposited with him. Defendants in their answer positively deny they ever made the appeal set forth, and complainant has not proved they *did;*and so far from countenancing his parting with the bond, they wished and en-deavoured to get it back again to secure themselves. As to complainants enforcing his execution, he would have ■been prevented from selling as well as the other creditors of.Glen Drayton, who were restrained by injunction.

ft has been urged that the court in the former decree had favored the defendants, by setting aside the sale they had made of testators lands, which would prejudice their individual creditors *;*and it may eventually prove so. The reasons however, which are given by the court in their decree, evidently shew that the interest of defendants was not at all the obje.ct of that decree, but to make a legal distribution of testators estate, and set aside a sale not authorized by his will. If in so doing, a prejudice has arisen to the creditors of one of the legatees, it cannot be avoided : the will of the testator from whom the estate was derived must be complied with. The court are disposed to do all they can consistently with the principles of justice and equity for complainant’s relief; but they are of opinion that they would violate those principles, in making-defendants personally responsible for Glen Drayton’s debt, seeing that they have already suffered considerably by his misconduct. As the house however still remains the property of the estate, and G. Drayton was entitled to a fourth part of the reversion in it, the court will order that the reversion in the house be sold, and the one fourth part of the amount sales thereof be paid over to the complainant,