Jackson ex dem. Miller v. Potter

By the Court, Savage, Ch. J. The only question in this case is, wheather Jacob F. Miller had the title by virtue of the will, and conveyance from the residuary lagatees. It is contended that the devise was to the executors upon conditions, which conditions have not been performed ; that the executor being a trustee, could not purchase from his cestuis que trust- It seems to me quite unnecessary to go into an examination of the cases on these points, for if the act be as contended, the consequence would be that the estate would descend to the heirs at law of Abraham Bachman. The only relations which are shewn to have survived him are three brothers and two nephews. He had no children, nor had he a father living for aught appearing in the case. His brothers and nephews consequently were his heirs at law. The grantors in the deed to Miller are the three brothers and one of the nephews of the testator, and the grantee is the other nephew. These persons were the owners of the estate, provided there was no sale by the executors; and as none is shewn, the presumption is that they never did convey. It is unnecessary to say what would have been the effect of a conveyance by the last surviving executor; none such was executed. Nor is it necessary to inquire whether a court of equity would set aside the sale from the residuary legatees to the executor. Such conveyances are regarded with jealousy ; and a trustee is never permitted to benefit himself out of the trust property at the expense, of Ms cestuis que trust-But these are matters with wMch we have now no concern. We are examining the legal title ; and find it in the lessors of the plaintiff. It is said that the grantee could not take by a release, not being in possession. This instrument is not a technical release; it contains granting words; but if it were considered a release, the grantee had a sufficient interest in the premises to receive such conveyance. The plaintiff is entitled to judgment.