
    Pardon Haynes versus Noah Wells et al.
    
    Where overseers of the poor, upon the decease of a pauper, take possession of lus effects, pursuant to St. 1817, c. 186, § 6, [St. 1837, c. 54,] and administration is not taken out within thirty days from his decease, they may sell so much of the property as shall be necessary to repay the expenses incurred for such pauper, notwithstanding the appointment of an administrator before the sale takes place.
    In trover by the administrator of a pauper against the overseers, for articles fairly sold by auction pursuant, to that statute and purchased by one of the overseers himself, the purchase was held not to be invalid.
    This was an action of trover for several articles described in the writ, the property of one Wilcox, the plaintiff’s intestate, who died in June, 1825. Letters of administration were granted to the plaintiff on the 23d of August, 1825. The intestate was a pauper, and receiving support from the defendants, who were overseers of the poor for the town of Rowe. Immediately after his death, the property sued for was taken into the custody of the defendants by virtue of St. 1817, c. 186, § 6, which provides, “that upon the death of any pauper, who, at the time of his decease, shall he actually chargeable to any town or district within this Commonwealth, the overseers of the poor of such town or district may take into their possession all the personal property belonging to such pauper. And if no administration shall be taken upon the es-tote of such pauper within thirty days after his decease, said overseers may sell so much of such property, as may be necessary to repay the expenses incurred for such pauper.” Soon after taking out of letters of administration by the plaintiff, the defendants, knowing that fact, sold the property in question by public auction. The sale was fairly conducted, and the property sold was no more than enough to indemnify the town for the expense incurred by them for the support of the pauper. The sale was forbidden by the plaintiff, and he attended to take possession of the property. Two of the articles sold were struck off to one of the defendants.
    
      Sept. 23d
    
    
      Sept. 26th
    
    
      Howe J. of C. C. P, before whom the cause was tried, was of opimon that these facts constituted a good defence ; to which opinion the plaintiff excepted.
    
      Jlshmun,
    
    in support of the exceptions, contended that the overseers had a right to sell the property after thirty days from the death of the pauper, so long as no administration was granted, but that upon administration’s being taken out their authority over the property was determined. The statute is to be construed strictly, being in derogation of the common law. Melody v. Reab, 4 Mass. R. 473; Gibson v. Jenney, 15 Mass. R. 205; Pierce v. Hopper, 1 Str. 258; Warwick v. White, Bunb. 106. It gives a creditor the power to pay himself out of the property of a party deceased, making him a judge or officer in his own case. The object of the provision is to prevent the property from being wasted or lost for want of some one to take care of it; but upon the appointment of an administrator the reason ceases, and it is better that the property should then be transferred to one who is under bond and oath to account for it, than that it should remain in the hands of irresponsible persons.
    An officer cannot be a seller and purchaser at the same time ; so that there is clearly a conversion of the articles which were purchased by one of the defendants. Mills v. Goodsell, 5 Connect. R. 475; Perkins v. Thompson, 3 N. Hampsh. R. 144.
    
      D. Wells, contra,
    
    cited on this last point, Davoue v. Fanning, 2 Johns. Ch. R. 252; Minuse v. Cox, 5 Johns. Ch. R. 441.
   Per Curiam.

We think the articles which are the subject of this action, were rightfully in the possession of the overseers, and as administration was not taken out within the thirty days, they had a right to sell to reimburse themselves, accounting to the administrator for the surplus.

The objection that one of the overseers was a purchaser, rests on a principle of chancery rather than of common law, that a trustee to sell shall not himself be a purchaser. The object of this principle is the prevention of frauds. It has been applied in the case of trustees eo nomine, executors, &c., but we do not think it applicable to a case like the present. We do not know that it has ever been carried so far as to prevent a sale by a corporation and a purchase by an individual member. Now the overseers were a quasi corporation, and acting for another, the town ; and the sale being fair, we do not see any good reason why an individual overseer might not purchase.

Judgment of nonsuit affirmed. 
      
       See 1 Story’s Comm. Eq. 316 et seq.
      
     