delivered tbe opinion of the court, January 3d 1882.
Tins suit wаs to recover the sum bid by tbe defendant on his purchase of personal property at a sale made by the рlaintiffs as administrators of Israel Stephens. The defendant held a note against the decedent, and claims to havе paid his bid by indorsing the amount thereof on the note.
It is settled law that in a,n action by an administrator to recover a dеbt for goods of the intestate, which he as administrator sold to the defendant, the latter cannot set off a debt duo frоm the intestate to him. After the administrator has reduced the goods to his possession and sold them, he may sue for such debt in his оwn right. It is for the enforcement of a contract made with him. Naming himself as administrator is surplus-sage. Wolfersberger et al. v. Bucher, 10 S. & R. 10; Beale et al. v. Coon,
To аvoid the application of this rule of law and to strengthen his position, the defendant gave evidence that therе was an agreement between him and Israel Stephens, by which the property, afterwards bought by him, should be put into the possession of Barzilla Stephens and Azariah Stephens with instructions to sell it, and apply the proceeds thereof оn said note ; that in pursuance of the agreement the property was put into their possession and so continued; that it remained unsold until after letters of administration on the estate of Israel issued to them ; that he purchased at the administrator's sale with the belief that he was buying under the agreement made with Israel; and that, after his purchase, the administrators consented that the sum bid, be indorsed on the note. The plaintiff's strenuously denied having taken any possession of the рroperty, in the life of Israel, or that they consented to an indorsement on the note of the sum bid.
The facts are unquestioned that the estate of Israel Stephens is insolvent, and that the property in question was duly inventoried and appraised as the property of the estate after the plaintiffs were appointed administrators thereof.
In the rejected evidence covered by the third assignment there wras an offer to prove by Barzilla Stephens, onе of the plaintiffs, substantially that he first took possession of the property on or about the time of the appraisement, and also, where the property was found after letters of administration were granted to the plaintiffs. The dеfendant objected thereto, first, as it tended to prove a fact prior to the death of Israel, and second, that where they found it, when they took possession after his death "was irrelevant. The objections were sustained. In this we think there was error. It is not concealed that one purpose of this evidence was to create a presumption that the
As no sale of the property was made during the life of Israel, and it was inventoried, appraised, and sоld, after his death, as the property of his estate, nothing less than clear and. specific evidence should be рermitted to divert the money for which it sold, from a distribution among all the creditors. Having been sold as the property of thе estate, it is the interest or property of the estate only, which is presumed to have passed by the sale, and fоr this alone, the defendant bid. There is no evidence of any notice given at the sale, that the exclusive and unquestioned right of property was not in Israel at the time of his death. The plaintiffs, as administrators, held all the personal estate of the decedent, in trust for his creditors. Acting as such they sold the property. They had no power to prefer а creditor whom the law did not prefer. They could not by agreement change the due course of distribution to the prеjudice of any of the creditors. It was held in Fritz v. Thomas,
In affirming the point covered by the seventh assignment undue wеight was given to the belief of the defendant, if when he bought at the vendue, “ he believed from what he had heard from the administrators that he was purchasing in pursuance of said agreement ” made with Israel. Whether the administrators or any other рerson so believed or understood at the time of the sale is wholly ignored in the point. Nor is any fact stated therein showing why he then believed it, other than that the property was unsold at the time of Israel’s death.
The mere fact that Mrs. Stephens was called to testify against the interest of the estate of her deceased husband, did not make her incompetent. She is competent to testify to facts which came to her knowledge otherwise than through the confidentiаl relations existing between her and her husband. Such
Judgment reversed and a venire facias de novo awarded.