1859, would have had a complete remedy, and something like justice would have been done by requiring the association to re-sell the money at the next meeting for the borrower's benefit. After which re-sale, by withdrawing her stock she would get back what she had paid in, with her share of the premium, which would be just, as well to her, as to the association. The auditor has not reported what premium was paid, nor the length of time the association has been in existence.

Mrs. Snider was not in default at the time of her death, and not enough in default at the time of the Orphans' Court sale, to entitle the association to proceed upon its mortgage. The equitable arrangement between her and the association, by which, in consideration of the premium, and monthly interest and dues, the loan was to run for ten years, or until her stock should be worth $200 per share, was broken up by the policy of the law, which converted her land into money for the purpose of settling her estate, and divested the mortgage of the association. The mortgage was therefore virtually paid, and not recovered by process of law. The case is the same, as if she had been living, and on the day of the confirmation of the sale, to wit, February 25, 1875, she had elected, under the 5th section of the act of 1859, to pay off the loan. She would then be entitled, after the payment of all dues, interest and fines, up to that time, to a return of a portion of the premium, according to the length of time the association had run. This is the only equitable mode of adjusting the question involved in this case. If, in a case like this, the association could be permitted to recover the whole sum loaned, including the ten years' premium, interest, dues on the stock, and fines, the result would be disastrous to the estates of all borrowers who might happen to die during the running of the association. In the early stage of the association's existence, large premiums are paid for loans, but as they are spread over ten or more years, and are often repaid by the increased value of the stock, the premium is scarcely felt in the long run ; for, as soon as the stock becomes worth $200 per share, the mortgage is ipso facto paid. The larger the premium, therefore, where the loan runs the full length of the association, the better it is for the borrower. But after paying a premium of perhaps $500, for a loan of $2,000, should the borrower die the next day, according to the ruling of the auditor, the whole premium would be lost, and the whole $2,000, with interest, dues and fines, be recoverable. If such is the law, the sooner the legis lature interposes for the protection of the borrower the better.

In the opinion of the court, the association is entitled to interest, dues and fines, on the entire sum, including the premium, up to February 25, 1875, on which day the mortgage was divested by the Orphans' Court sale. From that time up to the order of the court refusing to open the confirmation of the sale, the association is in the same position as other lien creditors. When the mortgage is divested by the policy of the law, it must be considered as voluntarily paid by the borrower, according to section 5 of the act of 1859, Purd. Dig. 184; and the amount due is to be adjusted accordingly. This will not only do justice to the association, but it will give to the stock all that has been paid on its account up to the date of the confirmation of the sale. The stock being assets in the executor's hands for the payment of general debts, of course should not be credited on the mortgage. In this view the auditor was

therefore right. No one familiar with the practical operations of these institutions, will question the correctness of these principles. The association gets back the money loaned, with dues on the stock, and interest on the loan and premium, up to the date of payment, together with a just proportion of the premium originally paid. They can at once resell the money at a new premium, and have all the benefit of the original arrangement. When properly conducted, and duly guarded by the courts, these institutions are excellent saving funds for persons of moderate means, and are a great accommodation to that class of borrowers whose security would not be accepted by ordinary capitalists. It is therefore important for the prosperity of the association, as well as the safety of the borrower, that an equitable plan of adjustment should be adopted in every case, where the original arrangement is broken up by the common accidents of life, or the policy of the law, especially when the parties are in no default.

There is also an exception to the auditor's ruling on the question of interest. He has allowed interest on the liens up to the day when the court dismissed the motion to open the confirmation of the sale. It ap pears that the purchaser paid interest on the purchase-money up to that time, the auditor was therefore right. As a general rule interest ceases on liens divested by a sheriff's sale on the day of the sale, and in cases of an Orphans' Court sale, on the day of confirmation. But like all general rules it has its exceptions, and the fact that the purchaser paid interest up to the time the auditor has allowed it, takes the case out of the general rule.

The case is recommitted to the auditor to readjust the table of distribution in accordance with this opinion.

In the Orphans' Court of Montgomery County.

[Leg. Int., Vol. 34, p. 169.]

In re Estate of JOHN C. HALLMAN, deceased.

Right of executors, administrators and other trustees, to purchase their trust estates Sur exception to report of auditor. Opinion delivered by

Ross, P. J.-This report vindicates its own conclusions, in all respects but one, which I shall presently notice. This opinion is drawn and will be filed for the purpose of noticing a practice too common, and which is against the policy and the letter of the law. I refer to the purchase of real estate by executors, administrators or other trustees, either directly or through the intervention of a third person. The estate passes into their hands as a trust; the title is clouded, and careful conveyancers will hesitate to pass title, years after, when the heirs are so widely scattered or lost, that to obtain releases is almost impossible.

But this is only a subsequent difficulty. The title itself is bad. No principle is better settled-none is wiser than that no trustee or person possessing a fiduciary character, or acting in that relation, can become a purchaser at his own sale, or acquire an interest in the trust estate without the consent of those for whose benefit he has undertaken to act, or of the court having jurisdiction of the trust. The maxim is emptor

emit quam minimo potest, venditor vendit quam maximo potest. This principle is too well established in Pennsylvania to be now doubted or questioned: 6 Watts & Serg. 21. As this practice is so frequent in this county, as I have had occasion to observe in many instances, and is apparently so unquestioned, I have determined to call the attention of the bar and community to it. I have collected the cases upon the subject, in order that there can be no room left for doubt: 3 Barr, 54; 4 Barr, 43; 5 W. 304; 7 W. 415; 2 Wh. 53; 7 W. 390; Peters' C. C. R. 373 ; 7 W. & S. 152; 7 W. & S. 401; 5 W. 370; 7 Barr, 48; 1 Johns. Ch. R. 350; 9 Barr, 284; 8 Vesey, 352; 9 Vesey, 234; 2 Barr, 463; 12 Harr. 154; 2 Casey, 67; 3 Casey, 64; 8 Casey, 315; 1 Wright, 114; 3 Harr. 334; 1 Harr. 292; 2 Rawle, 392; 2 S. & R. 521; 7 S. & R. 230; 5 Barr, 250; Pennock's Appeal, 2 Harr. 521; 2 Jones, 296.

To these may be added many others, but those cited cover every re lation of a fiduciary character. From this collection of authorities I will endeavor to declare when, and under what circumstances, a person acting in a fiduciary character may lawfully purchase.

1. Where two or more trustees, or persons acting in a fiduciary capac ity, sell the trust estate openly and fairly, and a stranger purchase for one of them at full price, such a sale is not necessarily void. It then is a matter of fact whether there was fraud or not: 1 Yeates, 307. But as the title in this excepted class depends upon facts, it is evidently the part of wisdom not to rely upon this exception to the general rule.

2. A trustee may buy the trust property when the sale is made by a public officer under proceedings adverse to the interest of the cestui que trust, and the trustee has not the means in his power to prevent the sale: Chorpenning's Appeal, 8 Casey, 315.

3. When the trust property is taken out of the hands of the trustee, and his power and authority over it put to an end by the interposition and act of the law, he may become a purchaser at the sale made by such interposition of the law for his own use: Fisk vs. Sorber, 6 W. & S. 27.

4. A trustee may lawfully purchase at his own sale wherever the court having jurisdiction of the trust will authorize him to become a purchaser, and he fulfils all the conditions of the decree of the court in relation thereto.

These are the only exceptions to the general rule with which I am acquainted; and in the judgment of this court the last exception is the only safe one upon which a trustee can act. All the others may be in vestigated or questioned.

The only remaining question is, who are fiduciary agents within the meaning of the law? The rule embraces all who being employed or concerned in the affairs of another have thus enjoyed a means of information that might be employed in the destruction of the interests. they are bound to promote, were the agent at liberty to convert himself into an owner against the consent of the principal. The circle of the rule is therefore extended to include special agents: 7 Watts, 387-474; commissioners of bankrupts, 10 Vesey, 381; assignees of bankrupts, 5 Vesey, 507; auctioneers; creditors who have been consulted as to the mode of sale, 6 Vesey, 517, 9 Vesey, 234; attorneys and solicitors, 5 Watts, 303; all others holding similar relations of confidence, Beeson vs. Beeson, 9 Barr 284. Of course these rules apply with peculiar

force to every case of executors, trustees, administrators, appointees of the several courts, and guardians. No man in whom another has confided; no man who is in the confidence of another, and has advised a sule, can safely buy without the consent of the owner or beneficiary, or without the permission of the court having jurisdiction of the trust. Too much caution cannot be exercised in this regard, as the cases cited abundantly show. I do not know that these remarks are specially ap plicable to the case at bar, but I think a declaration of the law upon this subject is necessary at this time, and the authorities cited are so completely to the point, so exhaustive, so well considered, and so eminently wise as rules of public policy, that their presentation in the form of a judicial opinion may prevent further evils.

G. R. Fox, Esq., for exceptants.

C. H. Garber, Esq., for accountant.

In the Orphans' Court of Susquehanna County.

[Leg. Int., Vol. 35, p. 491.]

Estate of JAMES ALEXANDER, deceased.

Where decedent leaves minor children, but no widow, the children are entitled under the acts of assembly to retain either real or personal estate to the amount of $300.

Rule to set aside appraisal to minor children of decedent. Opinion delivered December 5, 1878, by

JESSUP, P. J.-The act of 14th of April, 1851 (P. L. 613), provides that "the widow or the children of any decedent dying within this commonwealth, testate or intestate, may retain either real or personal property belonging to said estate, and the same shall not be sold, but suffered to remain for the use of the widow and family," etc., etc.

Then follows the act of 8th of April, 1857 (Pamp. L. 425): “The widow or children of any decedent entitled to retain $300 out of such decedent's estate by the laws of this commonwealth, and every person entitled to the exemption provided for in the act entitled 'An act to exempt property to the value of $300 from levy and sale on execution or distress for rent,' approved the 9th of April, A. D. 1849, may elect to retain the same or any part thereof, out of any bank notes, stocks, judg ments or other indebtedness to such persons. And in all cases hereafter where property may be set apart for the widow and children of any decedent, the same shall be appraised and set apart to said widow and children by the appraisers of the other personal estate of said decedent." This was followed by the act of 27th of November, 1865 (1 Purd. Dig. 417): "Whenever any widow or children of any decedent shall claim the benefit of the act to which this is a supplement, out of the real estate left by said decedent, and the real estate appraised shall consist of a single messuage or tenement, lot of ground, or other real estate, which cannot be divided without prejudice or spoiling the whole, and the appraisers may have appraised or shall appraise or value the same at any sum not exceeding $600, it shall and may be lawful for the Or phans' Court, to whom such application shall be made, to confirm such appraisement, and to set apart for the use of the widow or children such

messuage or tenement, lot of ground, or other real estate; conditional, however, that the person or persons in whose behalf the claim is made shall pay the amount of the valuation or appraisement in excess of the $300 within one year from the date of confirmation of such valuation; provided, that if the widow and children interested in said real estate shall refuse to take the same at such appraisement, the court, on application of any person interested, shall grant an order to sell the same, in the manner provided by law for the sale of real estate of decedents, after proceedings in partition.

Section 2. The real estate, if taken by the widow or children as aforesaid, shall vest in her or them, and their heirs or assigns absolutely, upon her or them paying the surplus over and above the sum of $300 to the parties legally entitled thereto; provided, that if the real estate should not be so taken at the appraisement, but should be sold as provided for in this act, then the sum of $300 of the purchase-money shall be paid to the widow or children entitled thereto, and the balance, after payment of costs and expenses, distributed to the heirs or other persons legally entitled thereto."

All this legislation presupposes the death of a husband and father, one upon whom the law imposes an obligation of support and maintenance, and it is to provide for the sudden withdrawal of such support that the exempted property is substituted. Hence the proper construction of these acts is, and always has been, that those alone to whom the decedent sustained such a relation at the time of his death are entitled to its benefits: 2 Casey, 233; 3 Wright, 414; 5 P. F. Smith, 290; 11 Wright, 230; 5 P. F. Smith, 344; 3 Norris, 345.

If a wife has deserted her husband, and such desertion continues to Iris death, she is excluded from its benefits: Tozer vs. Tozer, 2 Am. L. R. 510 (1854).

Aud, says Strong, J., in Nevin's Appeal, 11 Wright, 232, "The same regard for the manifest intention of the legislature requires us to hold that children who are adults, who are not members of the immediate family of the decedent, but have gone out from the paternal home to provide for themselves, are not the beneficiaries intended."

But this must be understood as a voluntary severance of the immediate family relation by the party to be affected by it. For if a husband or father, in disregard of the duties and obligations imposed upon him by law, attempts to break up the family by a wilful desertion, no such consequences follow. "In such case the family relation exists in contemplation of law, although actual cohabitation be suspended by the illegal act of the husband:" Terry's Appeal, 5 P. F. Smith, 347.

Aud so where children of a deceased wife by a former husband sought the benefits of this act out of her separate estate, it was held that "during the life of the wife her property was not primarily liable for the support of these children;" that "its meaning and spirit limit its operation to the property left by the husband or father. It was not intended to apply to the property of a wife:" King's Appeal, 3 Norris, 347.

Who then are the intended beneficiaries?

The act of 1851, supra, says: "The widow or children" tain, etc.

may re