Shuman's Appeal

The opinion of the court was delivered by Black, J. The object of this proceeding in the Orphans’ Court was to compel executors to settle an account. The answer to the citation was that a final and full account had been settled, and no money had, subsequently to the date of the account, come into the hands of the executors. The facts seem to be that before the account the executors had sold a farm of their testator to one David Herr, and in the account charged themselves with the sum at which he had bidden it off, namely, $82.50 per acre. But it [66] was shown very clearly that Herr bought the land in for the executors, and he "made a deed to them for it without paying a cent'to them or receiving a cent from them. They afterwards sold it to another person for $90 per acre, and during the time they kept it had received some rents and profits. The difference between the price at which it was sold to Herr, and the sum which the executors made out of it, is the subject-matter of this contest. It certainly is not necessary to decide now that an executor who buys at his own sale, or what is precisely the same thing, gets another to buy for him, holds the land on the same trusts that it was subject to before the sale. No class of trustees can be allowed to have an interest in the trust property opposite to that of the cestui que trusts. These executors were therefore bound in law and equity to pay out to the legatees all that they received out of the land. They had no right to appropriate- to their own use any portion of the proceeds of the last sale. The advance at which they sold it was no more their own than any other part of the purchase-money. And why should they not account for it in this proceeding ? They answer that they have already settled a final account. Suppose the account to be a final one on its face, that does not conclude the legatees so far that they cannot call for another account of money afterwards received. The simple question in the case is this: Can an executor become a purchaser of land at his own sale, file an account purporting to be a final settlement, charge himself with the price the land was bid off at by his own agent, sell it afterwards at a higher price, and when called on to account for the advance, set up the account already filed as a bar to any further claim? We do not hesitate to say that he cannot. The decree of the Orphans’ Court of Lancaster county is reversed; and it is now here ordered and decreed that David B. Herr and Abraham Eorry, executors of Christian Herr, deceased, shall file and settle in the Orphans’ Court of said county a full and true account of all moneys by them received of Samuel Shertzer for land of their testator, over and above the sum already charged against them as purchase-money of the same land; and it is further decreed that they shall at the same time render a true and full account of the rents, issues, and profits received by them out of the same land.