10 Vt. 116 | Vt. | 1838
The opinion of the court was delivered by
This case is presented on exceptions to the report of commissioners, appointed to take and state an adminstrator’s account.
The exceptions are — first,
To the allowance of $77.37 for support of the widow and family, before the dower was set out.
It may have been customary to make allowances of this description, but the statute, in terms,extends only to the support of children under a certain age. And the court of probate is authorised to assign a portion of the personal estate to the widow for her support. No duty of this kind is imposed on the administrator, by statute, and as expenditures of this sort are liable to be carried to a wasteful extent, we think it better to abide by the statute according to its terms, than to authorise an implied power in the administrator, to apply the assets to such a purpose. . A second exception is made to the allowance of $61.27 for losses on personal property. The administrator is entitled to an order of the probate court to sell at public or private sale, yet we do not think such order indispensable to his protection against losses, if he acts with due judgment and discretion,and in good faith. If he so acts, it must be indifferent to the estate whether he sells at private sale with or without an order for that purpose. Private sales, made in good faith, are almost always more beneficial to the estate than forced sales at auction. As these admin,istrators appear from the report to have realized and credited all that copld be obtained for the property, we think this item should be allowed.
A further exception is taken to the allowance of $78,49, paid on claims not presented to the commissioners. This charge is legalized by the facts disclosed in the report. One of the administrators, being á surviving partner of the intestate, was personally liable for the debts in question and had a right to retain the partnership effects) to meet them. But having consented to bring those effects, at half their value, into the inventory, which included the property of the estate,and having paid these debts after the commission closed, he should be
There is also an exception to the credit of $800, for real estate sold to S-. Byington, one of the administrators. This sale is shown by the report to have been made in good faith, and for the fair value of the land. In strict justice,therefore, no objection is shown against it, except what arises from the difficulty of perfecting the title under it. And that is a difficulty, which the administrator is willing to encounter, and therefore has little or no force when urged by the heirs.
But it is a principle of settled policy, that no administrator or person, standing in a like situation, shall become the purchaser of thé estaté for his own benefit, against the will of those, for whose interest he is appointed to act. It is, therefore, a general rule that a cestui que trust has an election to affirm or disaffirm such purchases by his trustee. Hapgood v. Jenison et al. 2 Vt. R. 299. In that case Hutchinson J. says, there is no doubt Of this right. It was also recognized in Robinson v. Robinson, Bennington County, 1831, and said in 5 Con. R. Mills v. Goodsell, that it is of no importance whether the sale Was fair of not.
Nothing is disclosed, which in Our opinion should bring this case within the few exceptions which may have been allowed to the rule. And as the heirs insist On Vacating the purchase, they must be indulged; subject however, to any just lien; which the administrator may have acquired in the course of a due administration, by payment of debts or otherwise;
As to the first arid last items excepted to, the report is set aside, and the account will be recommitted, unless otherwise agreed.
