2 Paige Ch. 202 | New York Court of Chancery | 1830
The other children of F. Davoue, and particularly Mrs. Beardsley, have an interest in this question.; and. if the objection had. not been expressly waived,by the' defendant’s counsél on the argument, the cause must have stood over until a ■ supplemental bill was filed, making them defendants. If the legal estate is in the heirs at law of Davoue, the court cannot direct a sale, which will give a good title to a purchaser, unless all the heirs and legatees are before the court.. And neither, until the heirs and legatees are before the Court, can .an account of the rents and profits . be taken and a distribution thereof ' made. But ás a decision of the questions of right in this case may enable the parties and legatees to settle the matters in difference between themselves, I shall proceed to dispose of the cause so far as it can be decided between ihe present parties.
' The power, to sell, given by the will to the executors, was special, and could only be exercised in the mode prescribed by the testator. It authorizes them, as the legatees become of age, to sell so much of the estate as. is necessary to pay their legacies' respectively ; and "■ it directs the sale to be at public auction. Neither of these requisites appear to have be.en complied with in this case. This was not a sale at public auction ; and the legatees, for whose benefit the executor pretended he'was selling, were not óf age. Independent of the question of fraud, this sale was wholly unauthorized and void, and nothing passed by the conveyance to Fay. But if the executor had the power to sell, this conveyance was a fraud upon the legatees, and may be avoided by them. It is abundantly'proved by the evidence in the cause, as well as by the answer of Fay, that the lot never was in fatit sold to him. . It was a mere device of Fanning to obtain the bonds and mort