*Camden.*

Heard by Chancellor Waties.

#### James Perry and wife, *vs.*Samuel Dixon, Executor of John Dixon.

JUNE, 1817.

The object of the bill was to set aside a sale of personal esi -tq,-made by the defendant, who was the executor of John Dixon, a-nd entitled to a share of the estate, on his own application to the Court of Ordinary, at which he became the purchaser of the great bulk of the property. The complainant, Mrs. Perry, the wife of James Perry, was the daughter óf John Dixon, and entitled to a distributive share of his estate.

There Was some doubt whether the defendant Samuel Dixon had qualified regularly as executor ; but the proof of his having acted as executor, was such as to satisfy the mind of the judge, and the principal question for his decision was, whether an executor could become a purchaser for his own benefit, at a sale of the estate of his testator.

After hearing argument on the case, Chancellor Waties delivered the following decree:

There have been several questions made in this case, but the decision of one will preclude the necessity of the consideration of any other. The defendant is the executor of his father, John Dixon, de„ ceased, and also the guardian of the complainant, Mary Perry, who is his sister. He obtained, in conjunction with his co-executor, William Dixon, an order from the Court of Ordinary for Kershaw district, to sell the whole of the personal estate of his father ; andón the sale thereof purchased the whole on his own account. It is objected, that he is not Jsgally competent to do so, and I think the objection isa sound one, 3 amarrare the practice of executors in purchasing at their own sales of estates, has generally prevailed throughout the state, and that it has not yet been determined that such purchases are illegal; but it is a practice in direct violation of a general principle of equity, which has been recognized in other instances in this court, and perhaps in no instance do all the reasons apply more strongly than in this. An executor, whether authorised-by will or by an order frorp the ordinary to se& *505an estate, becomes thereby a trustee to'sell; and it has been fully set-’ tied, that a trustee to sell is under a legal incapacity to purchase {or himself. One reason for this is, that lie cannot be both the séSlér and jhe buyer. But the wisdom o’f the rule consists principally in thepro-tection it affords against any bréaclies of duty in thé trustee," and is founded on the nature of the situation in which be is placed with respect to the trust estate. Phis gives him an opportunity of know.ng the value of the property better than the, vest of the world ; and if he were •¿Permitted t.o become thé purchaser, he would be frequently under thé temptation to conceal liis knowledge of the yalue, that be might gain an advantage "in the purchase; and this he might do in most cases without any danger of Us being discovt red that he had p.,s-¡csjed jréK N’. *506elusive information at the tune of the purchase. The rule therefore is not suffered to depend on whether any advantage has been gained by the trustee, for although the greatest fairness might be sometimes observ. cd, yet, in most cases, there might be the greatest unfairness, without the possibility of proving it by satisfactory evidence, as in the case put i>y lord Eldon in his reasoning id the case ex parte, Lacy 6 Yez. 627, “ suppose a trusted should discover by méans of his situation a coal mine under the trust estate, and locking up lilis knowledge in his own breast, should contract with his cestui que trust; if lie chose to deny ii h'ow could the court try it against tins denial’* The following authorities may be also referred to in support of the rule ; 5 Yez. 658 ; 6 Yez. 617; 8 Vez. 337 and 346; 10 Yez. 392 and 400; 5 Yez. 678. The situation of an executor gives him great advantages. The property in. his hands belongs to minors, who must often be totally ignorant of its value; and he may have it in his power to manage the sale of ;t in such a way as to defy all future investigation. As the reasons therefore of the rule apply to an executor in their full force, I think the case before me should be governed by it, and this without any regard to the cir-cuihstances of fairness in the purchase, which the counsel for the defendant have relied on. The great policy of the rule ought to outweigh any such considerations ; and the character of a trustee to sel!, which belongs te ah executor, and Which induces such strong temptations to breach' tfi duty, ought to incapacitate him from *buying on any*terms any part of an estate entrusted to him.

It is therefore ordered and decreed, that sittft part of the personal estate of X Dixon, deceased,!as tfiavriow lie in the possession oft lie defendant, S. Distort, be resold, and the said defendant do pay to the complainants 'Cut ofthe product thereof! tfteshareito which the said Mary Perry may lié entitled; also, that he' acconvit to them before the commissioner for her of thé profits of the said estate, «neo the death cf the said John. *507Dixon. And further, that the defendant do account to the complainants for the share of the said *SI ary,*in such other art of the personal estate as he may have disposed of Also, that he pay the costs.*

(Signed) Thohias Waties.

From this decree there was an appeal, the principal ground of ■which was the following :

In this case the following facts appeared in evidence : It was charged in the bill that defendant was executor of John Dixon deceased, and in evidence of it, an application to the ordinary with this defendant’s name thereto, but subscribed by the ordinary, together with one Wm. Dixon, who did qualify. The answer denied that he was executor, and a memorandum from .the ordinary stated that he had never qualified; and it was also in evidence, that his brother had the principal direction of the sale.

It was in evidence that there was a permission given by the Court of Ordinary, under which the sale was made — It was upon a credit, and the property sold for a hig-h price ; this defendant was a legatee under the will, and two of the husbands of legatees under the will were pre. sent at the sale and bidding.

*508Under this statement of facts, the defendant appeals .on the grounds; J?irst, — that he was not an executor,, or acted as such at the time of the sale.

Second, — That his honor mistook the law in deciding that an executor could not be a purchaser at his own sale.

Third, — Admitting'tViat he could not generally, yet that this case formed an exception to the general rule, the sale being made by a court of competent authority, and the executor personally interested in'the sale.

Fourth, — That thp sale was acquiesced in.

Fifth, — That, his honor mistook the law in deciding that the defendant should pay ail costs.

James S. Deas, Solicitor for defendant.

On tiiis appeal the cause came to a hearing, and was argued by Mr, Peas for the appellant, and bv Mr. Blanding to” the respondent.

The court d Bering m opmion, Chancellor Waties declared his ad-lierence to the decree he had delivered in the Circuit Court.

*

 Note by judge AYatios. — .The civil law is equally explicit on this subject. Tutors, guardians, and other administrators, can purchase nothing of the goods of minors and other persons who arc under theiy charge, neither directly in their own names nor by the interposition of other persons. 1 Domat. 72. Tutor rem pupilli emere non potest. Si per interpositam personam rem pupilli emerit, in ea causa est ut emp-tio millius momeuti sit, quia non bona fide videj-ctur rem gessisse. *If.*”, i S, ,ff deAud.clCons. Tut.

Chancellors Dcsaussure and Janies

delivered their opinions S\;-paratelv, ¡n affirmance of the decree.

The decree of the Circuit Court in this cause, setting aside the purchases made by the defendant, atlhesaleof thp personal estate of his testator, is in my opinion correct. But I am not prepared to go (he whole length of the principle on which it proceeds. That would exclude executors and adm.nistratorsfrom purchasing on their own account, atsales of the estates under their charge, in any case whatever; and thus place them entirely on the footing of mere trustees. Perhaps a w.sepolicy would place them on that footing, where they had no interest ; but where they have an interest in the property it would seem to be too severe a rule to prohibit executors and admin,strators from purchasing at such sales, at least to the extent of their interest; and it *509prohibited from purchasing- altogether, .even for the benefit of the oilier heirs, who might be incapable from minority, or other circumstances from protecting their own interests, that might be very prejud.cial. T would therefore permit executors and administrators to purchase for themselves at sales of the estate, ip which they have an interest, to the extent of that interest, provided the sale was made by proper authority, and conducted fairly, and a full price was given. And I would also-permit them in all cases to purchase for the benefit of the heirs, or others interested, to prevpnt a sacrifice of the property.

In the case under consideration, the defendant, Samuel Bison, had an interest to a little more than a fifth part of the property, but he purchased nearly the wliolp amount of the property. Mrs. Ferry was a minor, under the guardianship of this executor, and could not protecther-rights. He was bound as her guardian, to have taken care of them, but he did not. He made a bargain for lumsolfi tyhich has turned out very advantageously.

It is true that the price given does seem to have been a full one at the , time, but that does r,oi affect the question, where a trustee, or guardian, or executor, makes purchases of the estate on his own account, and for his own benefit- There are very strong reasons to believe that the sale was not intended to be a fair one, for tlig order for sale was obtained irregularly, and beyond the bounds of the jurisdiction of the Ordinary • as there was no pretence of any necessity to sell, in order to pay debts, or to preserve perishable property-, and the sale was made at a most improper season, well calculated to diminish the amount of the sales-

I am therefore of opinion, that the sale ought to beset aside, and. -hat the decree of the Circuit Court should be «(firmed.*

Hbiviiy W. Desausscbe.

*510In this case I am of opinion the fhets shew that there was unfairne^J iii the sale :

First, — In the making it at all, there being no debts due by tho éstate, and no heirs of age at the time to claim a division.

Second, — In the time of the year when it was made; the crop being .on the ground, and sold in that state.

I am also of opinion, that the decree of the Circuit Court is correct otf general principles.

W. D. James,

It is ordered and adjudged that the decree of the Circuit Court be affirmed.

IlEsrnr W. Desausstjke,,

Thomas Waties,

W. D. James.

Chancellors Gaillard and Thompson differed from the majority eff the court, and were of opinion that the decree ought to be reversed. But they did not then furnish their reasons in writing.

The order made by the majority of the Court of Appeals, was, thSt %e decree of the Circuit Court should be affirmed*

*

 See *1*Maddock’s Chancery, 91. 18 Vez. 170, Burden re. Burden.