| Pa. | Feb 19, 1884
delivered the opinion of the court, October 6, 1884.
At the decease of Henry Schnurman, the partnership stock of Schnurman, Newhard & Co. was valued and appraised at the sum of $16,394.30. No fraud is alleged, nor is it asserted that the sum named does not fairly represent its full value. Neither the executor nor the heirs had any right to take the decedent's place in the partnership, nor to compel the continuance of the business. The stock on hand was rightfully in the possession of the surviving partners, the legal ownership of that stock, for the purposes of liquidation, was in them, and they had the right, acting honestly and with reasonable discretion and diligence, to dispose of it as they pleased.
The forced conversion of a large stock of merchandise into money is often attended with the most ruinous consequences, and the mode in which it is to be effected, in any given case, is often of the utmost importance. The administrator or executor of a deceased partner, having in view the best interests of the estate; ma3r settle with the surviving partners on such terms as in the exercise of good faith and a reasonable discretion he may choose to accept; but as the surviving partners are in some sense trustees of the deceased partner’s interest, both they and the executor must be held to the exercise of the utmost good faith. The surviving partner may, however, in the interests of trade, purchase from the executor, at a fair valuation, the unascertained share of the deceased partner, and avoid the ruinous results of a general sale. This form of settlement is not infrequent, and, if the parties act bona fide, and with proper discretion, it sometimes affords an eas3r solution to the difficulties which ma}r arise in such cases. In such a case the affairs of the estate are guarded by the executor, whose interest it is to realize as largely as he can, and who has no interest otherwise.
The purchase of the undivided interest of a deceased partner by the executor of his estate in his own behalf, is viewed with more suspicion. In such case the estate stands altogether unprotected. It is exposed to the greed of the executor, with none to guard against it. The executor appears both as seller and bu3rer, and an indefeasible title cannot thus be acquired: Chronister v. Bushey, 7 W. & S., 153; Campbell v. McLain, 51 Pa. St., 200. The rule extends to all having a fiduciary relation to the property, and the fairness and honesty of the transaction do not vaiy it. This principle is not founded on the assumption of actual fraud; it is a rule of public polic3r: Drysdale’s Appeal, 2 Harris, 536; Chorpenning’s Appeal, 32 Pa. St., 315. Where the transaction is accompanied by actual fraud it is absolute^ void, and is incapable of subsequent ratification; but a purchase by a trustee at his own sale, bona fide, and for a full price, is but a
The purchase of the interest of Henry Schnurman, deceased, in the firm of Schnurman, Newhard & Co., by the executor of his estate, under the facts of this case cannot be considered an actual fraud; no circumstances of fraud or unfair dealing upon his part are shown. At the most it was but a fraud in law, and if his purchase was made at the solicitation, or by the inducement of the heirs for a fair price, and in good faith, it was not fraudulent in law.
After Henry Schnurman’s death the executor caused this joint stock of clothing to be appraised. It was valued at $16,394.30. This valuation is conceded to be full and fair; it was made by disinterested parties, practical tailors of large experience, and Mr. Newhard voluntarily disposed of his interest at the same price. There is no allegation, and there is certainly no proof, that the sum specified does not fairly represent the value of the stock. It was at the valuation thus fixed that Joseph Schnurman, the executor, accepted the interest of his testator, and assumed the responsibilities of a partner.
It is alleged that, before the appraisement was made, Mr. A. S. Grim, a son-in-law of the testator, offered to pay to the executor, for the decedent’s interest in the firm, $2,000 more than the appraisement would be found to amount to, but the executor declined the offer, and took the interest himself at the valuation. Whatever may have been the cause of the executor’s refusal, if he did refuse this offer, it appears that his action in the premises met the full approval of the heirs. This fact appears from matters subsequently occurring to which we may now refer.
Some time after letters testamentary had been granted to Joseph Schnurman, as executor of the last will and testament of Henry Schnurman, deceased, an application was made by his sureties for revocation of the approval of his official bond, on the grounds of an alleged misapprehension, on their part, as to the effect of the obligation, and fraud in procuring their respective signatures; to this application, on the 14th December, 1875, the executor filed an answer, setting forth, inter alia, as follows :
“That true it is, that without public sale, your respondent has taken and purchased the interest of the said Henry Schnurman, deceased, in the stock of goods lately belonging*384 to the late firm of Schnurman, Newhard & Co., but this respondent' says that his action was for the best interests of the estate.
“ That a full, fair and complete appraisement wa§ made of the stock of the.said firm, and, that on the-basis of the said appraisement, Charles L. Newhard, one of said firm, sold out his interest or proportion in said stock, to his partner, Henry C. Roth, and a Mr. Lewis Sourwine, and that your respondent took the interest or proportion of the said decedent, at the sam.e rate.
“ That this was done with the full knowledge and approval of the heirs of the-deceased, and was deemed to be for the interests of the estate, as it avoided the necessity of winding up the affairs of the firm by the discontinuance of the business.”
The answer was accompanied by a petition from the heirs, objecting to the proceedings by the sureties, and sustaining the executor; the petition contained the following clause :
- “We, the undersigned, being all the heirs and legatees of Henry Schnurman, deceased, except two special legatees who live in Europe, do hereby answer that we have carefully read the above answer, and are satisfied with the truth of its allegations. That we believe- that the said Joseph Schnurman is faithfully administering the trust committed to him. That we believe a full and fair price was paid by the said Joseph Schnurman, for the share of Henry Schnurman, deceased, in the stock of the firm of Schnurman, Newhard & Co. That ue approve of his action in the premises, and know that the security given for the said purchase money is ample.”
From these admissions of the heirs, made to the court, under circumstances which required them to speak the truth, we learn that the purchase of the executor was made in good faith, consulting the best interests of the estate, for a full price, well secured, and with the full knowledge and approval of the heirs and legatees. There is absolutely no evidence in contradiction of tliése facts, excepting the alleged fact of Grim’s offer in May preceding, a fact which, if it existed at all, was doubtless well known at the time. It will be observed, however, that the real estate, in which the business of the firm was conducted, was the property of Henry Schnurman, and it was to the interest of the estate that the business should be continued, that the realty might remain profitable to rent.; the surviving partners, if they contemplated a continuance of the business, had a right to select their own partner; no one could intrude himself upon them. Joseph Schnurman was acceptable to them, and here doubtless is the
If the heirs had been sui juris, they would, under these circumstances, certainly be precluded now, from asserting a right inconsistent with the course which by their encouragement they induced the executor to pursue. It is objected, however, that certain of the heirs are married women, and as it does not appear that they were joined by their husbands in these acts of approval and encouragement, they are protected by their coverture.
It is certainly true, as shown in a long line of cases, that a contract, void under the disability of coverture, cannot be made good by estoppel; neither a fraudulent denial of coverture, payment of purchase money, nor silent acquiescence in the making of improvements, nor all of these together, can, by way of estoppel, give validity to a contract void upon this ground. Glidden v. Strupler, 2 P. F. Smith, 400; Bispham Eq., 293. But the transaction here shown, so far as the heirs are concerned, was in no sense a sale of their interests in anything; the active parties to the sale were the surviving partners on the one side, and Joseph Schnurman on the other ; the heirs were but passively affected by it. There was no conveyance, no transfer, no release of their interests in the partnership or the estate; their act was merely the approval of a course of procedure, to be pursued by the executor, to ascertain their shares and advance the settlement. In this-they were affected with no disability; under the Act of 1855 they were entitled, without being joined with their husbands, to ascertain, receive and receipt for their shares. This was a matter therefore about which they might be consulted, and concerning which they might advise, and, in so doing, they were held to the exercise of the same degree of good faith as-others in a like case. It was through the inducement of the-heirs that the executor assumed the hazard of the purchase,, and became responsible for the price; the law presumes that the act was done on the faith that it should not afterwards be-disputed, or the resulting obligations denied. A married, woman should be held to the observance of that good faith, in her dealings with the world, to which others are bound; hex-protection is for the prevention of fx-aud; she should not thereby be enabled with impunity to defraud others. The-subject of the sale has, in the nine years that have elapsed,, passed out of the executor’s power, his condition is materially changed, aixd the heirs are by their conduct precluded from asserting a right which otherwise they might have enforced.. It is said that the daughters are not the owners of the corpus of the estate; this may be so, but they are the only exceptants-,.
The decree is affirmed, and the appeal dismissed at the cost of the appellants.