Harris v. Parker, ubi supra. But he cannot avoid a sale made by him without judicial order by direction of the sole distributee, Kelso v. Vance, 2 Baxt. 334. In Maryland, the order for sale is not subject to appeal. Crawford v. Blackburn, 19 Md. 40.

In California, the statutory requirement of confirmation of sale on report and notice has been held to apply to a sale made without order of the court under an express testamentary power, Estate of Durham, 49 Cal. 490; and, upon a larger price offered, an unconfirmed sale may be vacated and a re-sale ordered. Id. And in Mississippi, it has been held that the Probate Court may set aside an unconfirmed sale for fraud, even after the lapse of more than twenty years. Hart v. Hart, 39 Miss. 221. But although the statute prescribes what notice of sale should be given, the sufficiency of the notice cannot be questioned by a creditor if the proceeds of the sale are sufficient to pay all the debts. Bland v. Muncaster, 24 Miss. 62. And a sale cannot be avoided on application of the purchaser without the immediate return of the thing purchased, Bohannon v. Madison, 31 Miss. 348; unless it has died before a reasonable time for its return had elapsed. Joslin v. Caughlin, 30 Miss. 502.

Where

Power to pledge or mortgage. the power is not restricted by statute, an executor may pledge the assets of the estate for the purpose of administration, Carter v. Manufacturers' National Bank, 71 Me. 448. The Probate Court may authorize a mortgage for the payment of debts. Church v. Holcomb, 45 Mich. 29. And where a mortgage is directed by the Orphans' Court, it must follow the order in all particulars. Detroit Fire &c. Insurance Co. v. Aspinall, 45 Mich. 330. But such a mortgage is valid notwithstanding mere irregularities, and the facts supporting the order

cannot be questioned collaterally. Griffin v. Johnson, 37 Mich. 87.

On the other hand, the personal representative of an estate cannot pledge the assets of the estate for his individual debt, Williamson v. Branch Bank, 7 Ala. 906; although a bona fide holder for value under such pledge will be protected, Wood's Appeal, 92 Pa. St. 379; but one who takes such a pledge with notice, takes no title, Smith v. Ayer, 101 U. S. 320, and will be required to surrender it, Bell v. Farmers' National Bank, 131 Pa. St. 318; Estate of Marshall, 138 Pa. St. 285; Shelmerdine v. Shelmerdine, 16 Phila. 171; Rhame v. Lewis, 13 Rich. Eq. 269; with interest, Sacia v. Berthond, 17 Barb. 15; although the executor giving the pledge may also be a creditor of the estate, Chavey v. Peiffer, 2 C. E. Gr. 257; or entitled to the use of the property for life. Prall v. Hamil, 1 Stew. (N. J.) 66. In this case the pledgee was protected to the extent of the individual interest of the executor, but having notice of the trust character of the property pledged, he took it subject to the rights of creditors of the estate. But a pledge for the individual debt of the personal representative is only voidable, not void. Boeger v. Langenberg, 42 Mo. Ap. 7. In like manner a cestui que trust may follow trust property pledged by the trustee for his individual debt. Jaudon v. National City Bank, 8 Blatch. 430.

Purchases by executor. It is a general principle of law that an executor or administrator cannot transfer the trust assets to himself, either by public or private sale, Scott . Burch, 6 Har. & J. 67; Wright v. Campbell, 27 Ark. 637; except by consent of all parties interested. Tayloe v. Tayloe, 108 N. C. 69. The ratification by an heir by acceptance of the note given by the administrator for the purchase money, is a complete bar to objection on his part.

Mills. Mills, 57 Fed. Rep. 873. Such a transfer amounts to a conversion of the assets and renders him liable for their value. Whiteley v. Alexander, 73 N. C. 444. So, where he has transferred them after his purchase to a bona fide purchaser, into whose hands they cannot be followed, Bechtold v. Read, 4 Dick. (N. J.) 111; or where they have afterward become worthless as chattels (e. g., by emancipation). McDonald . Jacobs, 85 Ala. 64. As a buyer at his own sale, he becomes. the trustee for creditors and distributees, although the trust will not be enforced in equity in favor of one who acted in collusion with him, Johns v. Norris, 12 C. E. Gr. 485; nor after a lapse of twenty years upon an alleged agreement with the purchaser's deceased co-executors. Barnes v. Taylor, 12 C. E. Gr. 259. Where he buys for an inadequate price and accounts for it, his account may be reopened on the petition of parties interested. Roberts . Johns, 16 S. C. 171. And if he is insolvent and fails to account, the sale to a party with notice may be set aside. McCartney v. Calhoun, 17 Ala. 301. Although the sale to himself is authorized by the court, the administrator will be charged, in Arkansas, with any loss of full value. McLeod v. Griffis, 45 Ark. 505. The effect of accounting for value and of subsequent distribution as a transfer of the specific assets of the estate to the executor as his own property will be considered in a later part of this work.

It is, however, the duty of an executor to protect the interest of his testator, if necessary by bidding in the mortgaged property at a foreclosure sale. Matter of Butler, 1 Connoly 58. The property is thereby converted into personalty and held by him as trustee with power of disposition, Valentine v. Belden, 20 Hun 537; and liability to account as trustee for the profits when

received. Dilworth's Appeal, 108 Pa. St. 92.

An indirect sale to himself through the intervention of a third person is equally invalid. Joyner v. Conyers, 6 Jones Eq. 78; Michoud v. Girod, 4 How. 503; and is prohibited by statute in California (Code C. P., §1576); Jones v. Hanna, 81 Cal. 507; but may be cured by lapse of time, Bland v. Freeman (Ark.), 23 S. W. Rep. 4; especially in the hands of a bona fide purchaser, Morrisson v. Garrett (Ky.), 22 S. W. Rep. 320. Such sale is voidable, and not void. Ives v. Ashley, 97 Mass. 198; Buckles v. Lafferty, 2 Rob. 292; Houston v. Bryan, 78 Ga. 181. After the expiration of the term of the Probate Court the proper remedy is in equity, Smith v. Chew, 35 Miss. 153. The sale may be set aside by a court of equity, Obert v. Obert, 1 Beas. 423; Greiner v. Greiner, 8 Stew. (N. J.) 134; or a re-sale may be ordered, and the first sale made to attend its results, being set aside if a better bid is made, Burnett v. Eaton, 2 Stew. (N. J.) 466; or the purchaser may be held as trustee for the estate where the administrator sells to his own confidential attorney, West v. Waddill, 33 Ark. 575; or to such attorney and others who know of the relation, jointly. O'Dell v. Rogers, 44 Wis. 136. So, the administrator may be required to account for the value of goods sold to his mother for an inadequate price and before the money was needed for debts, Butler v. Butler, 10 R. I. 501; or sold for his own benefit to his brother, Smith v. Chew, 35 Miss. 153; or to his wife, Williams v. Swift, 79 Ga. 708. A later bona fide purchaser will be protected, however. Id. He must account for all profits made by him out of a sale of property of the estate directly to himself, Brackenridge . Holland, 2 Blackf. 377; Hughes v. Hughes, 87 Ala. 652; or indirectly to a third per

son for their joint benefit, Ford v. Blount, 3 Ired. 516; or to himself as agent for such third person. Piatt v. Longworth, 27 O. St. 159. But a sale made to his wife as residuary legatee in good faith as to the sufficiency of the assets will not be set aside for the purpose of subjecting the estate to the burden of an assessment afterward laid on the stock transferred. Witters v. Sowles, 32 Fed. Rep. 130.

On the other hand, an administrator may buy for himself, in the absence of any previous understanding, the property of the estate which he had sold in good faith to a third person. Smith v. Pollard, 4 B. Mon. 61; Wayland v. Crank, 79 Va. 602; West v. Waddill, 33 Ark. 575.

However fair such a sale may be, and whether direct or indirect, it is voidable on petition of parties interested, Davoue v. Fanning, 2 Johns. Ch. 252; Michoud v. Girod, 4 How. 503; Metropolitan Elevated Railroad v. Manhattan Railway, 14 Abb. N. C. 253; Boerum v. Schenck, 41 N. Y. 182; Matter of Bach, 2 Connoly 490; Anderson v. Green, 46 Ga. 361; within a reasonable time, Daniel v. Stough, 73 Me. 379; but not ipso facto void. Ives v. Ashley, 97 Mass. 198; Williams v. Rhodes, 81 Ill. 571. But steps must be taken within a reasonable time to avoid such sale. Flanders v. Flanders, 24 Ga. 249. It is, in general, good until set aside, Mercer v. Newson, 23 Ga. 151; Dunlap v. Mitchell, 10 Ohio 117; and the executor is accountable for the proceeds. McLane v. Spence, 6 Ala. 894. All parties interested need not concur in the petition to set it aside. Litchfield

v. Cudworth, 15 Pick. 24. But it will not be set aside on the application of a stranger nor of the administrator himself. Richardson v. Jones, 3 Gill & J. 164, 184; Jackson v. Vandalfsen, 5 Johns. 43; Harrington v. Brown, 5

Pick. 521. On the other hand, the parties interested may acquiesce in the sale, Prothro v. Prothro, 33 La. An. 598 ; Lyon v. Lyon, 8 Ired. Eq. 201; holding the purchaser as trustee for them, Clark v. Blackington, 110 Mass 369; or requiring the administrator to account for the price. Brown v. Weaver, 28 Ga. 377; Mosely v. Floyd, 31 Ga. 564. His accounting on due notice is a ratification by them. Price v. Nesbit, 1 Hill Ch. 445. And formerly such sales were held to be good, in South Carolina, if full value was paid. Stallings . Foreman, 2 Hill Ch. 401; and in Florida, Price v. Winter, 15 Fla. 66; and by statute were expressly authorized at a price not less than threefourths of the appraised value of the property. Price v. Springfield Real Estate Association, 101 Mo. 107. So, the Louisiana statute expressly provides for the purchase by an administrator at probate sale of the interest of his deceased partner in community property. Linman v. Riggins, 40 La. An. 761.

Where the administrator was partner with his intestate and buys in his interest in the partnership, he and his co-administrators will be held accountable for its full value, and the sale may be set aside at the election of any interested party, Gilbert's Appeal, 78 Pa. St. 266; but it is only voidable on application of a creditor or distributee, Lothrop v. Wightman, 41 Pa. St. 297; and may be ratified by them with full knowledge of the circumstances. Grim's Appeal, 105 Pa. St. 375. See also, Stewart's Appeal, 110 Id. 410, where the executor (who was not a partner of the deceased) took at an appraised value goods of which the testator had authorized a sale by appraisement to his partners.

The rule is inflexibly established that where in the management and performance of the trust, trust property of

any description, real or personal property, or mercantile assets, is sold, the trustee cannot, without the knowledge and consent of the cestui que trust, directly or indirectly become the purchaser. Such a purchase is always voidable, and will be set aside on behalf of the beneficiary, unless he has affirmed it being sui juris after obtaining full knowledge of all the facts. It is entirely immaterial to the existence and operation of this rule that the sale is intrinsically a fair one, that no undue advantage is obtained, or that a full consideration is paid, or even that the price is the highest which could be obtained. The policy of equity is to remove every possible temptation from

the trustee. The rule also applies alike where the sale is private or at auction; where the purchase is made directly by the trustee himself, or indirectly through an agent; where the trustee acts simply as agent for another person, and where the purchase is made from a co-trustee. Finally, the rule extends with equal force to a purchase made under like circumstances by a trustee from himself. A trustee acting in his fiduciary character, and without the intervention of the beneficiary, cannot sell the trust property to himself nor buy his own property from himself for the purposes of the trust. Pomeroy Eq. Jur., § 958.

Co-executors.

debt by one of

is valid.

+ See American note at end of this Chapter.

(a) Touchst. 484. 3 Bac. Abr. 30. Exors. (C.) 1. Wentw. Off. Ex. 206, 14th edition. Ex parte Rigby, 19 Ves. 462. "As between executors," says Lord Hardwicke, "there can be no division of their interest or authority: for though a man may appoint executors in such a manner that their authority may commence or determine at different times, yet he cannot nominate persons executors, and confine one of them to one branch of his estate, and another to another; for they have a joint authority, which extends to the testator's whole estate, and cannot be divided into distinct and separate powers: Owen v. Owen, 1 Atk. 495. But see ante, p. *201.

(b) 3 Bac. Abr. 30, tit. Executors, (D.) 1. Wentw. Off. Ex. 213, 14th edition. Owen v. Owen, 1 Atk. 495.

(c) Anon. Dyer, 23, b., in margine, Jacomb v. Harwood, 2 Ves. Sen. 267. Where an action was brought by two out of four executors and the two

executors who were not joined in the action released the defendant, who pleaded the release puis darrein continuance; the Court of Exchequer refused to set aside the plea, the plaintiff's having failed to make out a case of fraud: Herbert and another v. Pigott, 2 Cr. & M. 384. In Charlton r. Durham, L. R. 4 Ch. 433, a testator gave the residue of his estate to two executors on certain trusts. Part of his estate consisted of a bond given by the trustees of a minor, who came of age within a year after the death of the testator, and the execu tors then accepted his bond to them jointly in the place of the bond given by the trustees. Ten years afterward a part of the money was paid by the obligor to one of the obligees who embezzled the money so paid, and gave a receipt purporting to be signed by both the obligees, but in fact signed by one only, the signature of the other being a forgery. In a suit by the other execu tor and cestuis que trustent under the will against the obligor, it was held that, though the obligor intended to