Eagle v. Terrell

Wood, J., (after stating the facts), x. The finding of the chancellor that appellant had acquired the interest of Addie Porter, one of the Terrell heirs, 'and also- the interest of George Terrell, another heir, is not clearly against the weight of the evidence. This was purely a question of fact, and it could serve-no useful purpose to set out and discuss the evidence bearing upon the court’s finding in these particulars. 2. The rents and profits of the place in controversy during the years 1901 'and 1902 went into the hands of appellant as administrator. He was holding them as administrator, whether he had the legal right to do so or not, and he was accounting for them as administrator. The administration was not closed. The court did not err in refusing to take jurisdiction of these rents and profits. The probate court, having already acquired jurisdiction of these rents, is vested with ample power to grant appellees all the relief, if any, to which they may be entitled with reference to these. 3. The evidence does not warrant any finding of actual' fraud on the part of the administrator (appellant) in connection-, with the suit to foreclose, or in connection with his purchase of the lands. But the appellant as administrator, having these lands in possession as trustee for all parties interested in the estate, had a duty to perform with reference to them which was inconsistent with his character as purchaser for his own benefit. He was a party to the suit to foreclose, and it was his duty to make any defense to the suit that could have been made, and it was for him to determine whether there was any defense that could or should be set up to the foreclosure proceedings. Having a duty to discharge with reference to the estate and all persons interested therein, public policy will not permit him to acquire an interest, or to assume an attitude in his own behalf, that might be antagonistic to that of those whom he represents. The law will not permit him to be tempted by self-interest to neglect any duty he owes to those for whom he is trustee. Hence it is well established in this State, and generally, we believe, “that where property of a decedent is sold under order of the court, the executor or administrator can not lawfully become the purchaser.” 18 Cyc. 769, 4 and note 92; Imboden v. Hunter, 23 Ark. 622; Mock v. Pleasants, 34 Ark. 63; Culberhouse v. Shirey, 42 Ark. 25; McLeod, v. Griffis, 45 Ark. 505; Hindman v. O’Connor, 54 Ark. 627; Gibson v. Herriott, 55 Ark. 85; Bland v. Fleeman, 58 Ark. 84; Montgomery v. Black, 75 Ark. 184. See also Crawford County Bank v. Bolton, 87 Ark. 142. It is wholly immaterial whether the sale at which the trustee purchases is brought about at his instance or whether it is made at the instance of another, provided he has a duty to perform with reference to the property to be sold that may be in conflict with his interest as purchaser. So it was here. It was appellant’s duty to the estate to have the land bring the highest price possible. His duty as a trustee would be to do all 'in his power to encourage bidders, but his interest as purchaser would be to “beat down” the price and discourage competition in bidding. See Montgomery v. Black, supra. “An administrator or executor is not allowed to pu'rchase or speculate' upon the estate confided to him for the purposes of administration.” Handlin v. Davis, 81 Ky. 34; Reeder v. Meredith, 78 Ark. 111, 115. Appellant purchased the land on a credit of three months, paying therefor the sum of $1,400. He received the commissioner’s deed November 18, 1902, and four days after sold the land to Barton for the sum of $6,600. Appellant testified that the land was worth at a cash valuation between $2,000 and $2,500. The land was appraised at $2,150. The land was sold to Barton on a credit of five years, notes being given bearing six per cent, interest, and the notes were secured by mortgage on the land. There were about two hundred acres in cultivation on the place, and there was evidence tending to prove that it had a rental value of five or six dollars per acre. The appellant sold the land to Barton in November, 1902. It was in December, 1909, when the decree was rendered. There is nothing in the record to show that appellant did not receive the full price for which he sold the lands and interest on the deferred payments. The decree of the chancellor was therefore correct. Affirm. Hart, J., not participating.