
    
      Nathaniel Foster, ex'or. of John Foster, vs. Thomas Brown.
    
    Tbe plaintiff an executor, fraudulently aided A. B. in obtaining-administration of his testator’s estate, representing that the paper supposed to be a will, was a nullity. A. B. sold or gave away a negro of tbe estate, and afterwards the letters of administration were revoked, and the will proved. Held, that the plaintiff, as executor, could not recover the negro from the purchaser or donee — that being a particeps criminis in the fraud by which administration was obtained, A. B. must be regarded as having acted under his authority.
    
      Before Martin, J. at Union, Spring, Term, 1832.
    This was an action of detinue for a negro. John Foster, the plaintiff’s testator, gave the principal part of his estate to his widow for life, and part to an idiot son in fee. After the death of the testator, George S. Foster, the eldest son, applied to the ordinary for administration, stating, in the presence of the plaintiff, who then had the will in his pocket, that the paper supposed to have been a will, had been shewn to Col. Gist, and that he had pronounced it a nullity. Having obtained administration, George S. Foster sold the whole of the personal estate in December, 1823, when plaintiff was present. At this sale, George S. Foster bought the negro in dispute, at a full and fair, if not an extravagant price. In April or May, 1824, the negro passed into the possession of the defendant, the son-in-law of George S. Foster. It was very clear, from the evidence, that George S. Foster was a shrewd, intelligent and artful man — .and it was equally well established, that the plaintiff was very far his inferior. Yet no one pretended that he was not capable of understanding and transacting ordinary business, as well as other men of his class. Efforts were made to prove that George S. Foster exercised great authority and control over the plaintiff, but there was nothing from which such a conclusion could be drawn. The testator, John Foster, had been blind for several years previous to his death, and George had managed his business almost exclusively ; yet by his will he appointed Nathaniel executor, and when George took out administration, Nathaniel was one of his sureties. Some time after administration was granted, the sureties of George, having become dissatisfied, took from him a confession of judgment for their indemnity — and his administration was revoked 19th April, 1825. He made no returns to the ordinary, except an inventory and an account of the sales. Several witnesses were sworn, to establish the insolvency of George S. Foster at the time of the sale, or when the negro passed into the possession of the defendant, but the evidence was very unsatisfactory. The defendant having proved his possession and claim of the negro since April or May, 1824, the plaintiff produced a bill of sale made by George S. Foster to the defendant, dated the 6th December, 1825. The witness who proved that bill of sale, said it was executed the day of its date, and was given because the defendant stated to Foster that his affairs were unsettled, and he had nothing to shew for this negro, who had been in his possession for eighteen or twenty months. He understood from the parties, that it was in affirmation of whatever title the defendant had to the negro, by what had previously passed between them, and not the origin of his claim. The plaintiff also gave in evidence a report made by the commissioner in equity in relation to this claim.
    The plaintiff contended: first, that George S. Foster’s purchase was void, because an administrator cannot purchase at his own sale. Secondly, that as he could not do so, the property was still of the estate ; and that even if the purchase by Foster was good, yet the gift to the defendant was void as against his, Foster’s, creditors, of whom the plaintiff, in virtue of his right against Foster to an account of the estate of his testator, was one. The jury found for the defendant, and the plaintiff appealed.
    Thomson, for the motion.
    Dawkins, contra.
   Ctiria, per

Johnson, J.

The principle of the rule, that an administrator cannot purchase at his own sale, seems not to be correctly understood. The grant of administration vests in him the property of the goods of his intestate, and he can acquire nothingelseby buying at his own sale. He is bound to account for the value of the goods which come to his possession, and a sale to a stranger at a public vendue, without fraud, is conclusive evidence of value. But the entire control which the administrator has over his own sale, and the great temptation to fraud, has induced the courts to decide that the price at which he may purchase, shall not be regarded as conclusive of the value. It is in the nature of an offer made by him, which those entitled to the amount may accept, and if they do, he is bound; but if they are able to shew that the property is of greater value, he must account accordingly. And the same rule, for the most obvious reasons, must prevail, whether the administration was fairly or fraudulently obtained. In either case, the administrator must account for the value of the goods, and the mode of ascertaining that, is necessarily the same in both cases. I cannot perceive, however, how this question found its way into the case. It is not a bill in chancery, against George S. Foster, for an account of his administration, but detinue against a stranger to recover a negro, which the plaintiff claims as belonging to the estate of his testator ; and the whole foundation of it rests on the exemption of George S. Foster from the account — for if the plaintiff recover here, he has got all he claims, and cannot, in addition to that, require an account of the value of the negro from George S. Foster. ' All the other questions which have been raised, I had thought were disposed of by the judgment of the court in this cause, at May Term, 1829, and it would, perhaps, be sufficient to refer to that as authority. I will, however, place the arguments in another point of view, in the hope that it may put an end to their repetition. According to Seabrook vs. Williams, 3 McC. 371, on the death of the testator, his goods vest immediately in the executor, and he may dispose of them as he pleases before probate. The plaintiff was nominated as executor in the will of his testator, and with the will in his pocket he stood by and aided George S. Foster in obtaining the administration of the estate, with the knowledge that he intended to use that power to dispose of the property otherwise than directed by the will, and independent of the power which he derived from the grant of administration. This assent of the executor, especially in respect to strangers, invested him with the property in the negro in controversy, and necessarily with the power of disposition, and he has disposed of him to the defendant. How, then, can the plaintiff recover, when the defendant derives his right from the plaintiff himself, not merely in his own right, but as clothed with the powers of executor to the whole extent that was necessary 1 It is said that the transfer by George S. Foster to the defendant, was subsequent to the revocation of his administration, and that it was voluntary, and therefore void. The proof is very full, that although the execution of the bill of sale was subsequent to the revocation of the administration, it was only in confirmation of a sale or gift before; but regarding the act as done under the authority of the plaintiff himself, it is wholly immaterial whether it was done before or after the revocation of the administration, or whether it was with or without an adequate consideration. He had the power to give away the goods of his testator if he pleased, and whatever may be the right of others, surely he is not entitled to complain. He is particeps criminis.

Motion dismissed.

O’Neall and Harper, JJ. concurred.  