8 N.C. 497 | N.C. | 1821
It has now become a settled rule of equity, too firmly established to be shaken, that a trustee shall gain no benefit to himself by any act done by him in his *279 fiduciary character, but that all his acts shall be for the benefit of the cestui que trust. It is not necessary, in the view I take of the case, to inquire whether an executor comes within the rule as established in England, though in Barden v. Barden, 18 Ves., 170, it was decided that an executor cannot purchase (505) his testator's effects, because our local laws have materially changed the rights and duties of an executor. The act of 1723, ch. 15, explained and modified by several subsequent acts, restrains the executors from selling the unperishable estate without an order of court; and, as the law now stands, the County Courts are to judge of the necessity of a sale, either to make distribution or to pay debts. It has not entrusted the executor with the power of selling at his own discretion, nor is it any justification to him, acting without an order of court, that the sale was just and necessary. This, however, does not change the principle on which the law considers void a purchase made by a trustee, for it would still be so if the sale was authorized by an order of court. The general tendency of our acts in this respect is rather to limit than enlarge the powers of an executor, and shows that the doctrine relied on by the petitioners applies, a fortiori, to them.
The length of time cannot have any effect on the petitioner's rights, under the circumstances of the case. It is an open, unexecuted trust, and it is not pretended that the share of the price for which Frank was sold has ever been paid to Elizabeth Ryden or her representatives.
