O'Connor v. Flynn

Myrick, J.: The plaintiffs, one of whom is an adult, the others infants, were devises under the will of their father, Hugh O’Connor. The defendant was one of the executors of the will. In the course of administering the estate, it became necessary to sell the real estate devised, and to that end, after due proceedings, the Probate Court made its order of sale. At the sale the defendant procured one Collins to bid off the property for him. At the hearing for confirmation an advanced bid was made, and the Court directed a resale. The defendant was desirous of purchasing the property, but was advised by his attorney that he could not do so, being one of the executors; that he could sell the property to the highest bidder, and after the completion of the sale he could purchase of such bidder, provided no previous agreement should be made between them. The real estate was put up at auction for a second sale, and at such sale one J. C. Wade became the purchaser, for a fair price, viz., $5,650.- Wade did not bid off the property for or on account of defendant; they had no communication prior to the bidding relating to the sale. Defendant was not present at the sale, but kept away on purpose, so that he might not seem to be interested. He made no effort, beyond the legal advertising, to induce bidders or bidding. Immediately and daily after the day of sale he made efforts to find Wade, in order to bargain with him for the purchase of the, [295]land, and some ten or fourteen days after the day of sale they met, and it was agreed between them that defendant should pay to Wade some $850 advance, and take a deed from him. This was before the confirmation of the sale by the Court. As soon as the sale to Wade was confirmed, he took a deed from the executors, and executed a deed to defendant, the defendant paying to him (Wade) the amount bid and the advance. At the confirmation, proof was offered to the Court that the price bid by Wade was a fair price, but .the fact of the agreement between Wade and defendant for the purchase was not made known. The defendant received his deed from Wade at the same time and place that Wade received the deed from the executors. The dates are as follows: Second sale. May 4th, 1870 j return of sale, May 19th, 1870 ; confirmation, May 25th, 1870; deed from the executors to Wade, June 1st, 1870; recorded, June 3rd, 1870; deed from Wade to defendant, June 4th, 1870.

Under this state of facts, we are of opinion that defendant holds the legal title to the property in trust for the plaintiffs, subject to a proper accounting for the money paid for the purchase, and for repairs, etc., less rents received, and any other proper transactions that may exist between the parties. If defendant had waited until after the sale had been confirmed, he might then have bargained for the property. We know of no reported case holding that an executor or administrator is prohibited from purchasing after the confirmation, even though he then be in office. But in this ease the executor, before the confirmation, before even the sale was reported, bargained with the purchaser, and thus placed his interest in conflict with his duty. His interest was to have the property confirmed at the lowest possible price; his duty was to have the property bring the highest price. It may be said, as the Court below found, that defendant acted in perfect good faith, so far as his intentions were concerned; yet so strict is the law in regard to persons dealing with trust property and funds, that it will not permit them to place themselves in a position antagonistic to the interests of their eestuis que trust At the confirmation, defendant’s interests were antagonistic to the interests of plaintiffs; if some person had proposed to him to make an advance bid, it would