26 Pa. 67 | Pa. | 1856
The opinion of the court was delivered by
It is not material whether William Rosenberger was a competent witness or not; with or without his testimony the decree of the court is correct. The accountants complain that his testimony was rejected by the auditor, but as it was very properly taken down and reported by that officer, we are enabled to see that it did not make the case, of the accountants any better. It shows that “ the partnership between him and the executors existed immediately after the property was struck down to him, before conveyance or payment of any of the purchase-money, and whilst their relation to the property as trustees still continued.” During this time the executors could not be permitted to acquire an interest in opposition to that of the cestui que trusts. Any profit which they might make belongs to the parties beneficially interested in the trust. Their equity is superior not only to the trustees, but to William Rosenberger, who had full notice of the trust.
The acceptance of part of the proceeds of sale, under the circumstances stated, does not estop the parties entitled from claiming the residue. Such an act might bind them not to disturb the title of a purchaser,, but surely the payment of part of what the executors owed is no reason why they should not pay the residue.
We see no error in the proceedings.
Decree affirmed.