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but may fairly presume that the sale is rightly made and that the purchase money will be properly applied, and that such a purchaser can only be made responsible on the ground of fraudulent participation with the executor in the commission of a devastavit by the executor of his testator's estate. In other words, that the purchaser must be guilty of a fraud in that respect. Jones v. Clark, 25 Gratt. 642.

At one time in the history of this question in the courts, it was always held to require actual fraud on the part of the purchaser. In the case of Nugent v. Gifford, 1 Atk. R. 463, an executor had assigned a mortgage term of his testator to pay the executor's own debt. Lord Hardwicke held it a good alienation against the creditors and the heirs, saying: "The court would follow the assets in case of fraud, but not when the executor disposed of them for a valuable consideration, and without fraud; and that it would be very mischievous if the court were to control this power of alienation, as no person would venture to deal with executors." "There was no difference in the power of the executor to dispose of legal and of equitable assets." See Mead v. Lord Orrery, 3 Atk. R. 235; Whale v. Booth, 4 Term R. 625, note.

This rule, as is well known, however, has been modified. It has been more recently held that, if upon the face of the assignment of the property it appeared to have been made in satisfaction of a private debt of the executor, the sale was fraudulent against persons interested under the will, and equity would relieve, though it is admitted that the purchaser from the executor in general is not bound to see to the application of the money. Bonney v. Ridgard, 1 Cox R. 145. Where an executor pledged bonds specifically devised as a security for his own debt, the pawnee was required to deliver them up for the benefit of the specific legatees.

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Here again it was admitted that in general the purchasers of the assets had no concern with the application of the price, and that the rule applied to mortgages, bonds and leases. Scott v. Tyler, Dickens, 712.

But if one concerted with the executor to obtain the goods at a nominal price, or a fraudulent under-value, or in extinguishing the private debt of the executor, or in any other manner contrary to the duty of the office of executor, the purchaser or pawnee will be held liable. When bonds were delivered to a banker as a security for the private debt of the executor, they were ordered to be delivered up by the pawnees. Scott v. Tyler, supra.

Chancellor Kent, in the case of Field v. Schieffelin, 7 Johns. Ch. R. 150, after reviewing the above cases and others, said: "I have thus looked pretty closely into the decisions in the analogous case of a purchase from an executor" (that was the case of a purchase from a guardian) "of the testator's assets, and they all agree in this, that the purchaser is safe if he is no party to any fraud in the executor, and has no knowledge or proof that the executor intended to misapply the proceeds, or was in fact by the very transaction applying them to the extinguishment of his own private debt. The great difficulty has been to determine how far the purchaser dealt at his peril when he knew, from the very face of the proceedings, that the executor was applying the assets to his own private debt. The later and the better doctrine is, that in such case he does buy at his peril; but that if he has no such proof or knowledge, he is not bound to enquire into the state of the trust, because he has no means to support the enquiry, and he may safely repose on the general presumption that the executor is in the due exercise of his trust."

In Graff v. Castleman, &c., 5 Rand. 195, Judge Carr said, delivering the opinion of this court: "In the case of Keane v. Roberts, 4 Mad. Ch. R. 332, the vice-chancellor said:

Opinion.

'Every person who acquires personal assets by a breach of trust or devastavit in the executor is responsible to those who are entitled under the will, if he is a party to the breach of trust. Generally speaking, he does not become a party to the breach of trust by buying or receiving as a pledge for money advanced to the executor at the time, any part of the personal estate, whether specially given by the will or not, because this sale or pledge is held to be prima facie consistent with the duty of the executor. I preface both these propositions with the words generally speaking, because they both seem to admit of exceptions.""

In Fisher v. Bassett, 9 Leigh, 119, an administrator took a bond to himself individually for a debt due to his intestate's estate, payable at a distant day, and then sells the bond at a discount of twenty-five per cent. to an assignee, who knew that the consideration of the bond was a debt due to intestate's estate, but is informed, and so informed as to justify him in believing that the administrator has acquired the full property in the bond in his own right. The burden of proof was then held to be on the assignee to show the fairness of the administrator's conduct, "and if the administrator had not purchased the claim from the next of kin, or had not made such advances as to justify him in appropriating it to himself, the assignee cannot in equity avail himself of the transfer." "The sale of the bond at so large a discount was held in itself to be prima facie a devastavit, and the burden of proof is upon the assignee to show that the necessities of the estate, and not those of the administrator, required the sacrifice." spoke of the sale as having been made "at the ruinous rate of twenty-five per cent. discount, without evidence that the necessities of the estate required it." When the assignee bought the bonds "at so much less than their value, under the circumstances in that case he was held to have taken on himself the burden of showing either that Scott was the

He

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real owner, or that the necessities of the estate justified the sacrifice." Fisher v. Bassett, 9 Leigh, 119.

In the case of Pinckard v. Woods, 8 Gratt. 140, the executor sold the bonds taken at the sale of the personal property at a discount of about twenty per cent., the purchaser knowing that the liabilities of the estate were very inconsiderable, and that the sale of the bonds were not necessary for any purposes of administration. In this case the purchaser was held liable because he purchased at a profit, a ruinous discount to the estate, and because he had knowledge that the estate did not require that or any other sacrifice.

In Cocke v. Minor, 25 Gratt. 246, Judge Bouldin said: "That the conversion into money by a trustee of well secured bonds belonging to a trust fund, by a sale thereof, at a large sacrifice to the purchaser, with full notice of the trust, does constitute such an improper dealing with and devastavit of the trust subject as will render both trustee and purchaser prima facie responsible therefor, is a proposition about which, at this day, there can be no doubt."

In the case of Jones v. Clark, 25 Gratt. 663, Judge Moncure, speaking of the assignee of the executor, said: "The bond was payable to the executor in that character which gave express notice to the purchaser that it belonged, in its origin at least, to the testator's estate, and he bought it from the executor at a discount of eighteen per cent. Nothing but the necessities of the estate could have justified the executor in making such a sale, unless the bond had become the individual property of the executor, by his advancements made on account of the estate or otherwise. The burden of proof is on the purchaser to show that the duty of the executor required the sale on the terms on which it was made, or that the bonds belonged to him individually, or at least that he has fully and properly accounted for the amount of the bonds to the persons entitled thereto."

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In that case the purchaser, who purchased at a heavy discount from the executor, was held liable, while a subsequent purchaser, who bought at the actual value, was held not to be liable. The court in this case said, speaking of the assigned bonds, "that they were payable to the executor, as such, did not show that he did not part with them lawfully. The legal title was vested in him, and he had the right and it may have been his duty, to sell them, as it certainly would have been to collect them at maturity, if not sold before. The duty of a purchaser from an executor of a bond payable to him as such, to make enquiry as to the propriety of the sale, does not arise from the fact that the bond is so payable. The only effect of that fact is to inform him that the bond is a part of the assets of the testator. And an executor may lawfully sell the assets, whether they consist of a bond or anything else; and a fair purchaser cannot be held responsible, though he make no enquiry as to the propriety of the sale. That is a question to be decided by the executor, to whose discretion the testator and the owner of the property has referred it, and persons may lawfully trust him and purchase assets from him without any enquiry, if the conduct of such persons in the transaction be fair. Confidence being placed in the trustee by the person who had the sole right to dispose of the property at his will, no other can question the correctness of the proceeding, or can be justifiable in suspecting an intention to violate the trust. He has no right to suspect that the person who has been selected by the testator for its execution will violate the trust reposed in him, and no collusion between him and the trustee ought to be implied from equivocal acts (citing Garnett v. Macon, 2 Brock 185, 231; Davis v. Christian, 15 Gratt. 11, 46). . . . If a bond is offered for sale by an executor, which is payable to him as such, at a heavy discount, as, for instance, eighteen or twenty per cent., that fact affords to the person to whom the offer is VOL. LXXVIII-57