show that the vendor is selling or receiving the purchase- *30. Receipts of executors. - As executors are to [*477] a certain extent invested with the character of trus- tees, it may be proper to introduce a few remarks upon their - Power to sell or mortgage. - On the death of a testator [(d) West of England and South (a) Scott v. Tyler, 2 Dick. 725, (b) Bonney v. Ridgard, 1 Cox, 145, 3 Atk. 240, per Lord Hardwicke; (c) Scott v. Tyler, 2 Dick. 725, per 1 Executors' receipts. - An executor can do alone many things which a sale (d), all or any part of the assets, legal or equitable (e); and though liable to render an account to the Court, he cannot be interrupted in the discharge of his office by any person claiming either dehors the will, as a creditor, or under it, as a legatee. The creditor has merely a demand against the executor personally (ƒ), the pecuniary or specific legatee is not entitled to the legacy or bequest until the executor has assented (g), and the residuary legatee has no lien until the estate has been liquidated and cleared of all liabilities, both dehors and under the will (h). Upon the sale of the chattel, the purchaser is not concerned to see to the application of his purchase-money, and it need not be recited in the conveyance that the money is wanted for the discharge of liabilities (i) it is sufficient that the purchaser trusts him whom the testator has trusted (): if there be any misapplication, the remedy of the creditor or legatee is not against the purchaser, but the executor (k). It is impossible for the purchaser to ascertain the necessity of the sale, for [*478] this * must depend upon the state of the accounts, which he has no means of investigating without the powers annexed only to the executorship (a). Notice of the will.- - Even express notice of the will, and of the bequests contained in it, works to the purchaser no prejudice; for "every person," said Sir J. Leach, "who deals with an executor has necessarily implied if not express notice of the will: but as a purchaser of real estate devised (d) Russell v. Plaice, 18 Beav. 21; and see p. 426, supra. (e) M'Leod v. Drummond, 14 Ves. 360, per Sir W. Grant; Nugent v. Gifford, 1 Atk. 463. (f) Nugent v. Gifford, 1 Atk. 463, per Lord Hardwicke; Mead v. Orrery, 3 Atk. 238, per eundem; M'Leod v. Drummond, 17 Ves. 163, per Lord Eldon. (9) Mead v. Orrery, 3 Atk. 238, 240, per Lord Hardwicke. But the executor is bound to assent as soon as the funeral and testamentary expenses and debts have been paid, Greene v. Greene, 3 I. R. Eq. 102, per Cur. (k) Humble v. Bill, 2 Vern. 445, per Cur.; Ewer v. Corbet, 2 P. W. 149, per Sir J. Jekyll; Watts v. Kancie, Toth. 77; Nurton v. Nurton, id. (a) Ewer v. Corbet, 2 P. W. 149, per Sir J. Jekyll; Humble v. Bill, 2 Vern. 445, per Cur.; Nugent v. Gifford, 1 Atk. 464, per Lord Hardwicke; Mead v. Orrery, 3 Atk. 242, per eundem. in aid for payment of debts is not bound to inquire into the fact whether the sale is made necessary by the existence of debts, because he has no adequate means to prosecute such an inquiry, so he who deals for personal assets is, for the same reason, absolved from all inquiry with respect to debts: and it is upon this principle altogether indifferent what dispositions may be made in the will with respect to the personal property for which he deals; for whether it be specifically given or be part of the residuary estate, it is equally available in law for the payment of debts" (b). Thus nothing can be clearer than that an executor may go to market with his testator's assets, (even with a chattel specifically bequeathed (c),) and the purchaser will not be bound to see to the application of his purchase-money (d). [But an executor or administrator cannot mortgage the assets to raise money for repairing or re-instating dilapidated buildings unless the testator or intestate was liable under covenants to execute the works (e).] 31. Fraud an exception. But fraud and collusion will vitiate any transaction, and turn it to a mere colour (ƒ), and therefore if fraud be proved, either expressed or implied, the parties cannot protect themselves by pleading the general rule (g). The only question is, What will amount to a case of fraud? * a. Sale at a nominal price.-The sale cannot stand if the chattel be sold at a nominal price or a fraudu- [*479] lent undervalue (a). (b) Keane v. Robarts, 4 Mad. 356. (c) Watts v. Kancie, Toth. 77, 161; Nurton v. Nurton, Ib.; Ewer v. Corbet, 2 P. W. 148. As to Humble v. Bill, 2 Vern. 444, 1 B. P. C. 71, see Ewer v. Corbet, ubi supra; Andrew v. Wrigley, 4 B. C. C. 137; M'Leod v. Drummond, 17 Ves. 160. (d) Bonney v. Ridgard, 1 Cox, 147, per Lord Kenyon. [(e) Ricketts v. Lewis, 51 L. J. N. S. Ch. 837.] (f) Scott v. Tyler, 2 Dick. 725, per Lord Thurlow. (g) Watkins v. Cheek, 2 S. & S. 205, per Sir J. Leach; M'Leod v. Drummond, 17 Ves. 154, per Lord Eldon; Hill v. Simpson, 7 Ves. 166, per Sir W. Grant; Taner v. Ivie, 2 Ves. 469, per Lord Hardwicke; Keane v. Robarts, 4 Mad. 357, per Sir J. Leach; Crane v. Drake, 2 Vern. 616; Nugent v. Gifford. 1 Atk. 463, per Lord Hardwicke; Mead v. Orrery, 3 Atk. 240, per eundem; Scott v. Tyler, 2 Dick. 725, per Lord Thurlow; Whale v. Booth, 4 T. R. 625, note (a), per Lord Mansfield; Elliot v. Merryman, Barn. 81, per Sir J. Jekyll; Bonney v. Ridgard, 1 Cox, 147, per Lord Kenyon; Earl Vane v. Rigden, 5 L. R. Ch. App. 663, &c. (a) Scott v. Tyler, 2 Dick. 725, per Lord Thurlow; Ewer v. Corbet, 2 P. B. Sale by executor for payment of his own debt. — The executor may not sell or pledge the assets for raising money to carry on the testator's business, though in pursuance of the directions contained in his will, for the debts of the business are not the testator's debts, [and a direction by a testator that his trade shall be carried on by his executors does not authorise the employment in that trade of more of the testator's property than was employed by him in his business] (b), or to pay or secure the executor's own debt (c), or for a debt wrongfully contracted by him as executor (d), for prima facie this is a diversion of the assets to a purpose wholly foreign to the administration, and therefore a devastavit. "Though," observed Sir W. Grant, "it may be dangerous at all to restrain the power of purchasing from the executor, what inconvenience can there be in holding that the assets known to be such should not be applied in any case for the executor's debt, unless the creditor could be first satisfied of his right? It may be essential that the executor should have the power to sell the assets, but it is not essential that he should have the power to pay his own creditor; and it is not just that one man's property should be applied to the payment of another man's debt" (e). Where the executor is specific or residuary legatee. But if the executor be also the specific (ƒ), or residuary legatee (g), W. 149, per Sir J. Jekyll; M'Mullen v. O'Reilly, 15 Ir. Ch. Rep. 251; and see Drohan v. Drohan, 1 B. & B. 185. (b) McNeillie v. Acton, 2 Eq. Rep. 21; 4 De G. M. & G. 744. [But the executors may sell or pledge any part of the property actually employed in the business, and it has been held in a recent case in Ireland that the power of disposition extends to mortgaging the freehold premises upon which the business is carried on; Devitt v. Kearney, 13 L. R. Ir. 45; reversing S. C. 11 L. R. Ir. 225.] (c) Scott v. Tyler, 2 Dick. 712; Hill v. Simpson, 7 Ves. 152; Watkins v. Cheek, 2 S. & S. 205, per Sir J. Leach; Keane v. Robarts, 4 Mad. 357, per eundem; Crane v. Drake, 2 Vern. 616; Anon. case, cited Pr. Ch. 434; Andrew v. Wrigley, 4 B. C. C. 137, per Lord Alvanley; and see Eland v. Eland, 4 M. & Cr. 427; Miles v. Durnford, 2 De G. M. & G. 641; [Jones v. Stöhwasser, 16 Ch. D. 577.] (d) Collinson v. Lister, 20 Beav. 356; 7 De G. M. & G. 634. (e) Hill v. Simpson, 7 Ves. 169. (9) Nugent v. Gifford, 1 Atk. 463; corrected from Reg. Lib. 4 B. C. C. 136; Mead v. Orrery, 3 Atk. 235; Whale v. Booth, 4 T. R. 625, note (a). See the comments of Lord Eldon, M'Leod v. Drummond, 17 Ves. 163; and see Bedford v. Woodham, 4 Ves. 40, note; Storry v. Walsh, 18 Beav. 559. then it seems to be established upon the authority of several cases that he may dispose of the chattel in payment of his own debt, for as soon as the debts and legacies of the testator have been discharged, the property is the executor's; and how is a purchaser to ascertain, but from the mouth of the executor, whether such prior liabilities upon the estate have been fully satisfied? * Where the executor is specific legatee jointly with [*480] another, or subject to a charge. -But if the executor is specific or residuary legatee, jointly with others, or subject to certain charges under the will, then he has no power by himself to offer the chattel in payment of his own debt. For in what character does the executor sell? It must be either as executor or as legatee: not as executor, for then he cannot pay his own debt with the testator's assets; and not as legatee, for he is not exclusively such, but only jointly with others, or subject to certain charges. The creditor therefore cannot deal for the chattel without the concurrence of the co-legatees, or of the other persons jointly entitled (a). And the mere representation by the executor that he is absolute owner under the will is no protection, for common prudence requires that the purchaser should look to the will himself and ascertain the fact; and if he neglect this precaution, and assume the executor's veracity, he must incur the hazard of the executor's falsehood (b). Express notice that debts not paid. The executor in his character of specific or residuary legatee cannot pay or secure the debt of his own creditor out of the testator's assets, if such creditor have express notice that any debt of the testator still remains unsatisfied (c). 7. Sale by executor for other private purposes. - If the executor sell or mortgage for money either advanced at the time or to be advanced, the dealing prima facie is in a due course of administration (d). "Where," observed Sir W. (a) Bonney v. Ridgard, 1 Cox. 145; Hill v. Simpson, 7 Ves. 152, see 170; and see Haynes v. Forshaw, 11 Hare, 93. (b) Hill v. Simpson, 7 Ves. 152, see 170. (c) See Nugent v. Gifford, 1 Atk. 464; Whale v. Booth, 4 T. R. 625, note (a); M'Leod v. Drummond, 17 Ves. 163. (d) M'Leod v. Drummond, 17 Ves. 155, per Lord Eldon. |