Bailey's adm'x v. Robinsons

1. A purchase of laud by an executor, at a sale made by himself as such, is a violation of his duty as trustee; and an invasion of the rights of his cestuis que trust; who are entitled to relief in a court of equity. 2. The general ride in such cases is, that though the sale may have been irregularly and fraudulently conducted, and the property sold for less than its value; the proper mode of relief, is not to subject the trastee to the payment of the actual value of the land at the time of the sale, upon the conjectural estimate of witnesses ; but at the election of the cestuis que trust, to direct a resale at a proper upset price. 3. A mere depreciation since the trustee’s purchase, in the market value of the property, arising from a change in prices, does not warrant an exception to this general rule. 4. Error to decree in favour of a person not a party in the cause.

Dixon Robinson of the comity of Fauquier, died in 1816, having first made his will, by which he gave his whole estate to' his wife for life, or until she married ; and then, (after a specific legacy of a slave to each of his eleven children,) he directs that after the death or marriage of his wife, the whole of the property devised to her, be sold (the land on a credit of twelve months) to the highest bidder; and the money to be equally divided among his children then living: and he appointed Carr Bailey and Samuel Weaver his executors ; who qualified as such, in the county court of Fauquier. . The land consisted of a tract of about one hundred and fifty-five acres: and the personal estate, after taking out the specific bequests, consisted of four slaves, and some perishable property. In 1817, the widow having died, the executors proceeded to sell the property, when the perishable part of it was purchased for the benefit of the children, eight of whom were then infants: one of the slaves was bought by the executor Bailey, at the price of 516 dollars 50 cents. The land was also purchased by Bailey at 8 dollars 50 cents per acre. In 1822, the children of Dixon Robinson filed their bill in the late superior court of chancery for the Fredericksburg district, against the executors Bailey and Weaver ; in which they charge, that after the death of their mother, the executors possessed themselves of the whole estate real and personal, for which they had never accounted. That in May 1817, they proceeded to sell the land; and sold it upon the terms of not delivering possession thereof, for twelve months from the day of salo. That Bailey repeatedly declared at the sale, that he wished to purchase the land for the benefit of the daughters of Dixon Robinson; whereby many who would have given 10 or 12 dollars an acre for it, were induced not to bid; so that Bailey became the purchaser at 8 dollars 50 cents per acre: and that the other executor Weaver had since executed to Bailey a deed for the land. That Ba,iley still retains the title, and possession of the land, which is worth considerably more than the price for which it was sold. They therefore pray that the sale of the land may be set aside; and that the same may be resold; and that the executors may be compelled to settle their executorial accounts. Before the executors had answered the bill, the plaintiffs, and a certain Samuel Mooney, who claimed to be assignee of JacJcin Robinson, one of the children and devisees of Dixon Robinson, filed an amended and supplemental bill; in which they charge that in December 1816, at the sale of the slaves and personal effects of his testator, Bailey declared in the presence of divers persons who attended the sale for the purpose of bidding thereat, that he desired to purchase in the slaves and personal effects for the benefit of the daughters of Dixon Robinson ; whereby many persons from kindness to the daughters, declined bidding; so that Bailey became the purchaser of the slaves and other personal effects at a price much below their value; and having thus obtained them, claims and uses them as his own. The plaintiffs therefore pray that Bailey may be held responsible to them for the price at which the land and slaves would have then sold at a fair sale. Bailey and Weaver answered separately. Bailey says, that the perishable property was purchased by Polly Robinson for herself and the other legatees; and has ever since remained in their possession, or has been consumed by them. That the land was sold on the terms stated in the bill; that it was a fair sale, and brought a full price. That after the sale, the children of Dixon Robinson' lived upon the land, and enjoyed the profits of it; and have never paid him any rent ; but are still his debtors for this, and other advances to them and the widow. That he purchased one slave for 516 dollars 50 cents—more than his value: that one of the slaves was a subject of expense, and entirely unfit for service ; that another was also old, and could not be sold at public auction; and that she was ultimately disposed of for 25 dollars, in a bond of William Robinson, who married the plaintiff Polly: and that the other slave was sold to a certain John Brown for 510 dollars. That he purchased none of the personal effects, except a wheat fan; and that was permitted to remain in the service of the family. Weaver answered to the same effect. The accounts were referred to a commissioner, before whom depositions were taken ; and the evidence satisfied the commissioner, and the court below, that the allegations of the bill as to the conduct of Bailey at the sale were sustained by the proofs, and that but for this conduct the land would have brought 11 dollars per acre; and the commissioner in his report, charged Bailey with the land at that price. Whilst the cause was before the commissioner, a certain William Lawler appeared before him, claiming two shares of the estate, as the assignee of William Robinson, who claimed to hold one share in right of his wife Polly, and one as the assignee of Henry Robinson ; though he was in no way made a party in the cause. The defendant Bailey died whilst the cause was before the commissioner, and it was revived against his administratrix. The cause came on for final hearing before the circuit superior court of law and chancery for the county of Prince William, (to which it had been removed) in October 1834, on the report and exceptions thereto ; when the court made a decree, fixing the liability of Bailey for the land at 11 dollars per acre; sustaining Lawler's claim as assignee; and referring the cause to a commissioner, to enquire into, and report upon other matters connected with the accounts. From this decree Bailey's administratrix appealed.