86 Va. 909 | Va. | 1890
delivered the opinion of the court.
This case is as follows: In the year 1865, Thomas Hughes died, leaving a will, dated October 26, 1865, by which he provided : (1) That all his just debts should be paid. (2) That the appellee, Thomas J. Hughes, his son, named as his executor, should sell all of his real estate and personal property on such terms and at such time as he might deem most advisable for all concerned. (3) He lent to his wife all his property, real and personal, or'the sales arising from the said property, during her life, and at her death he gave one-third of the same to the children of a deceased son, John TI. Hughes, who are the appellants, after accounting for the sum of $1,450, previously advanced, to the said deceased son, John H. Hughes, and the remaining two-thirds of the estate was given to his son, the said executor, Thomas J. Hughes, who is the appellee. Thomas J. Hughes qualified as executor on the 4th day of May, 1868, and settled from time to time his ex parte accounts. In March, 1877, the appellants filed their bill to surcharge and falsify the said accounts. Hew accounts were ordered, the said ex parie accounts appearing to have been informal, and not returned and confirmed. Upon the taking of these accounts, it appeared that Thomas J. Hughes had retained possession of the real estate from the death of the widow, in 1868, to Hovember 3, 1869, when he sold the said real estate to his clerk, one Seward, at the price of $6,000, there being no other bidders at the auction of the same, except three persons procured by the said executor to make pretended bids in order to give a- show of fairness to the transaction. Seward paid him no money, and on the same day the executor made Seward a deed; and, on the 5th of Hovember, Seward made him a deed for the said
The first error assigned, is that, by the said decree of May 19, 1885, confirming the commissioner’s 'report and the account
As to the first assignment of error, that the appellants were required to account for the advancement charged against them in the will, with, interest, it is well settled that interest should not be charged upon an advancement until final distribution. This money belonged to the legatees, and not to the estate of Thomas Hughes. It must be credited without interest at the time of final distribution. The executor is chargeable with interest on the balance withheld by him. If it could be otherwise, the legatee would be thus made a debtor; and under many circumstances his legacy might be wiped out and extinguished by interest upon a sum which in no event could he be required to pay. Barrett v. Morris’ Ex’ors, 33 Gratt., 273, and cases cited. This rule could be varied only by, express provisions in the will to that end. Cabells v. Puryear, 27 Gratt., 504.
As to the second assignment of error, that the executor was not charged with rent for one-third of the farm, we think the decree is plainly erroneous. It is true that the appellants lived upon the farm also, but they had no share of its profits. They were made to serve; and, if the evidence is to be believed, they served a hard task-master, who was more sparing of the comfort of these childreu than of his blows bestowed upon them for any supposed neglect of their work. Their services were undoubtedly worth their board, and there is no reason why the executor should not account to them for the value of their share which he enjoyed, and which he withheld from them. If the will gave him a discretion .when to sell, it did
The next assignment of error is as to the action of the court, by its decree of June 19, 1888, refusing to set aside the said fraudulent sale by the executor indirectly to himself. It is well settled that an executor cannot buy at his own sale. The positions of vendor and vendee are inconsistent. If he desired to become the vendee, he could easily have declined the voluntary attitude of vendor. The interposition of Seward and the puffers employed was a fraudulent device. The executor sold and conveyed without receiving a dollar of purchase money, and repurchased without paying a dollar. This was a good deal to he done without the expenditure of a dollar of money, hut his trust position sufficed to achieve it. Tt was a sham sale, and is voidable at the option the cestuis que trust; and this rule is not affected by the fact that two-thirds of the proceeds belonged to him. He was still a trustee as to the matter in controversy—the one-third belonging to the appellants. Staples v. Staples, 24 Gratt., 225; 1 Benj. Sales, p. 31, note 22; Ror. Jud. Sales, 346, 356; 1 Perry, Trusts, secs. 205, 224; Bailey's Adm'x v. Robinson, 1 Gratt., 4. In the last-named case principles governing the court in such a case are clearly laid down. In that case the court said: “ The court is of opinion that the purchase by the executor, Bailey, of the land in the proceedings mentioned, at the sale thereof made by him and his co-executor, was in itself a violation of his duty as a trustee, and an invasion of the rights of his cestuis que trust, who are entitled to redress in a eourt of equity. According to the general rule in such cases, 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 trustee to payment of the actual value of the land at the time of the sale upon the conjectural estimate of witnesses, hut, at the election of the cestuis que trust, to direct a re-sale at a proper upset price. A mere depreciation, since the
The decree complained of must be reversed and annulled, and the cause remanded to the said circuit court for an account of the rents and profits of the said land during its occupancy by this executor; au account of any permanent and substantial improvements made on the said land by the said executor,
As to the claim that his sons are his vendees, and as such bona fide subsequent purchasers for value, without notice, this is negatived by every circumstance in the ease. The defect in the title conveyed to them was before their eyes. It lay in the line of their title. The whole appeared upon the deeds under
Degrees reversed.