Asa May, Adm'r., &c., and in his own right, and Wife, Appellants, vs. Alvin May and Wife, and others, Appellees, 7 Fla. 207

Pearson, J., delivered the Opinion of the Court: The first question presented in this record for decision is as to the proper construction of the deed of settlement of McBride, in trust for the benefit cf his daughter Caroline.— Caroline having twice married, and having issue by each marriage, the question is whether both sets of children take in remainder, or only ..those of (he first marriage.

The trusts declared in this deed are, in relationto certain slaves which are conveyed to trustees to and for the use of the said Caroline during her natural life, and in case she should marry, then in trust for the joint use of herself and husband, and provided either of them should die, then in trust for the survivor of them, “and from and immediately after the death of such survivor, then in trust to and for the equal benefit and behoof of the issue that may hereafter be born of said marriage, and the representative and representatives of such as may be deceased, they taking amongst them a parent’s share, to be equally divided to them, their executors, administrators and assigns forever, and in default of issue of the said Caroline McBride by her husband at the death of the survivor of them, in trust to and for the sole use and benefit of the heirs of the said B.

McBride, share and share alike.” The Court is unanimously of opinion that under a proper construction of this deed both sets of children should take share and share alike ; they were alike the objects of the grand-father’s care and the children of his daughter, who was the meritorious cause of his bounty. The contextshows plainly that it was his object to settle a life estate upon his daughter to be enjoyed jointly with her husband, provided she married, but that the remainder should be a provision for her issue.

There is nothing in the deed itself to show that any particular marriage was in contemplation at the time of its execution, nor has any evidence aliunde been advanced to connect the deed with the particular marriage toMui ray, the first husband. Suppose all the children had been the issue of the second marriage to Cole; can it be doubted that they would have taken in remainder as the issue of his daughter and the objects of the grand-father’s solicitude?

In the construction of marriage settlements the manifest intention of the grantor will prevail over the doubts which might be raised.by a strict grammatical construction. The cases of Beale vs. Dodd. 1 T. Rep. 202, and 1 D. and E. 193 are conclusive in support of these views, and we do not consider it necessary to extend this argument, since we are so fully sustained in this construction both by authority and the plain intention of the grantor.

The next question is as to the validity of the transfer made by McBride, administrator of Murray, of the reversionary interest of that estate in the negroes allotted to his widow for dower, in satisfaction of a claim against the estate presented in her behalf by her second husband Cole. To determine this question several things are to be considered. The first inquiry is as to the nature of the debt or claim for which this reversion was bartered. To ascertain this we must look to the proceedings in the Court of law had under our statute for the laying off and assignment of Mrs. Murray’s(then Mrs. Cole)dower.

It seems to have been upon the report of the eommissioners in dower in that case, that this claim first arose.

Their report says, The Commissioners having been informed of other property which for obvious reasons, to-wit; the absenceof the administrator cannot be exhibited to them, recommend that the applicant for dower be allowed the third of nett proceeds of crops of cotton made on the plantation of the estate during the years 1836, ’37, ’38 and ’39, when said amount can be ascertained.” Subsequently an account is filed in th8 Clerk’s office ofthe sales of the cotton crops during the several years mentioned in the report, concluding with a division, giving Mrs. Cole 4,878 05-100 dollars, but with the usual mercantile E.

E., and • appending thereto a memoranda in these words : “ A reference to my accounts current in the Clerk’s office, Monticello, will perhaps be necessary, as I may be in error from this hurried statement in the exact amount due Mrs. Cole.” This account though not authenticated by anysignature, seems to have been incorporated with the proceedings in that case, connects itself with them by its contents, and is made the. basis of the subsequent settlement of this claim by the administrator, as appears from Cole’s receipt to him.

This receipt show's that in consideration of the release of the widow’s share of the four cotton crops, amounting to the exact sum stated in this account, the administrator transferred the reversion in the slaves allotted her for dow'er, to Cole. The Commissioners’ report and this account are certified as being on file in the Clerk’s office by the Clerk of Jefferson superior Court. And although it does appear that the report has been confirmed by the Court, yet the confirmation is in the language of the report itself and assigns one-third of the eotton crops to the widow, without stating the amount of the same.

Now it remains to be seen how far this establishes a debt from Murray’s estate in favor of Mrs. Cole. It appears to us that the mere appointment of Commissioners by the Sheriff to make partition, clothes them with no further authority than to perform an executive duty prescribed by statute and make their reportto the Court, which report has no conclusive validity until confirmed by the Court; otherwise the Court would be ousted of its jurisdiction and it would be transferred to the Commissioners summoned by the Sheriff.

Again if it should be said that the report of the Commissioners was of authority to establish this claim, it must be considered what was the extent of their powers. Our statute provides that the Commissioners shall allot and set off to the widow one-third part of the real estate of which her husband “ died, seized and possessed," and at the same time “shall allot and setoff” to such widow her portion of the personal estate of which her husband died possessed. Did the husband in this instance die possessdd of the annual crops of his plantation made during four successive years subsequent to his death?

Although the widow might have had some sort of equitable claim to a portion of the income of the estate anterior to the assignment of her dower, yet was it competent for these Commissioners, acting under statutory regulations, to adjudicate and determine that question as to mesne profits without the sanction of the Court; and even if such extraordinary power were accorded to them, they have not accomplished their work.

Their business is mainly, if not entirely, to divide the property of the estate in specie, but here they have gone into matters of account fit only for reference to a. master, and at length awarded no sum of money as due out of the proceeds of these four crops, but merely “recommend that the applicant for dower be allowed one third of the nett proceeds” of the crops mentioned, “when said amount can be ascertained.” Can there be a conclusive judgmenttor any other than an ascertained sum ?

Is it not the office and the very essence of a judgment to ascertian the amount of a debt 1 There is inthis instance no such ascertainment, but merely a recommendation to the proper tribunal to allow to the applicant a certain proportion of the subject matter, when the amount was ascertained. Now it is manifest that the amount of such portion has never as yet been ascertained either by the Commissioners or the judgment of the Court.

The statement on file in the Clerk’s office disobeys the recommendation of the Commissioners and allows the widow one third of the gross proceeds instead of the nett proceeds of the four crops, and to this statement itself is appended the initials for errors excepted, together with a declaration that it may be wrong onaccount of the absence of accounts and the hurried manner in which it is made.

This statement is the only distinct evidence of the value of these crops presented, and it departs from the rule of calculation recommended in the Commissioners’ report and confirmed by the Court, and thereby reaches a conclusion inconsistent therewith. If it is evidence to charge the estate of Murray, then it must be equally evidence to discharge that estate to the extent of the evidence it affords of errors and mistakes in making up the account.

It is said however, that the receipt taken by the administrator, McBride, from Cole for the precise sum ascertained by this statement on that account, amounts to an acknowledgement on his part that such sum was due.

On the contrary it appears to us that it only affords evidence that the administrator had only proceeded upon his original error in his settlement of this claim.— But it is a very familiar principle that the administrator has no power to bind the estate by any contract or promise of his, and his negotiation could give no higher validity to a claim like this, originating subsequent to the death of his intestate, than it previously possessed.

Upon the equity of the statute giving dower, the widow will be allowed her portion of mesne profits from the death of the husband up to the period at which the dower shall be set off, and the Court upon proper application will refer it to the master to state the account as to mesne profits, and ascertain the widows portion; but this is not competent to be done by Commissioners in dower, acting under the the provisions of our statute directing the method to be observed in laying out dower. See Thom. Dig. p. 186.

This then is a claim in the nature of dower unascertained by any competent authority, and in the estimate of which the administrator has fallen, by his own showing, into gross errors and mistakes. Such is the claim presented by Cole and wife against the estate of Murray. It now remains to examine the duty and authority of the administrator to settle it in the mode which he has adopted. Wehaveseenthathe could not create it and that he could not adjudicate it, and that it had not been adjudicated and ascertained either by the commissioners in dower or by the judgment of the Circuit Court.

Why then should he assume to cancel it by an assignment and conveyance of the most important interest of the estate, to the claimant 1 That this transaction was private and that no public sale of the reversion was made, was not contested in the argument, and is sufficiently attested by the receipt given by Cole to the administrator explaining the whole transaction.

Cole it will be remembered, stood in privity with the estate of Murray by reason of the accrual of his marital rights upon intermarriage with the widow, and was dealing with •the administrator for the expectancy of the heirs in this reversion, upon a demand claimed in right of his wife, and for property- then in his possession in the same right.

Of the quality and value of this property he therefore must have been the best judge, for it appears that the administrator* McBride, was a citizen of South Carolina, where the deed of settlement was executed, arid that the commissioners in dower complain that all the property of the estate was not exhibited to them by reason of his absence. Hisaccountof the sales of the four crops, it seems, was made in the absence of vouchers and erroneously, and finally he is made party to this bill by publication, not being a resident of this State.

It is manifest, therefore, that the administrator was in a condition, whatever might have been his intentions, to be imposed upon, and to commit errors and mistakes. This Court in the case of Ls Barron and Colquit vs. Fauntleroy, 2 Fla.

Rep. 294, distinguishing between our system and the old common law, defines the administrator to be “ an agent or officer merely, for the settlement of the estate, with no further interest than commissions and fees.” He has not therefore as at common law, a vested right to the personalty, and may not dispose of it at his good pleasure, but is “ an agent or officer merely,” and must proceed sub modo according to the statutes which guide and govern and restrain him.

According to the English authorities, a reversion is assets in the hands of the administrator coupled with an interest in himself, and like all other assets of the estate it was in his power to dispose of it at private sale, and to confer on the purchaser a good title, though he still remained liable to the distributees for any fraud or collusion in the sale. This interest “ which is attended with such important consequences” in the case above referred to, is declared to be “ expressly done away” by our statute.

It was clearly then the duty of the administrator to pursue the statutory regulations defining his duties, provided he found it necessary to make sale of the reversion in question* The 1st and 2d paragraphs of sec. 6 Tho. Dig. 202, prescribe -, the mode in which the personalty shall be disposed rf by the administrator. We think these two sections, which must be construed together, as they are part of the same law, clearly indicate the intention of the Legislature that all such sales should be public. Let us see now whether a reversion can be the subject of a public sale.

That such a sale cannot be made by a Sheriff of the remainderman’s interest pending the life estate, is expressly decided in Dargan and Bradford vs. Richardson, Dudley So. Car. Repts., 1

Part 62, and in Devon vs. Kemp, decided May Term, 1837, and also in the case of Collins vs. Montgomery 2 Nott and McCord 392. These cases proceed upon the ground that the presence of the property and the delivery of it to the purchaser, was necessary to perfect the sale.

And Judge Butler saj-s in his opinion' in the case first referred to above, “in England such an interest would be considered as nothing more than a trust in the one having the interest for life, for those in remainder;” and further, “if so it would be a mere equity, which might be assigned, but which could not be levied upon and sold under a fi.fa.” That such future vested interest may be subjected to the payment of debts by proceedings in Equity, there can be no doubt.— But the question here is as,to the duty of the administrator.

He had no legal power to take possession of and expose to sale and actually sell and deliver personal property of which the tenant for life had a rightful and exclusive possession. Delivery is essential to perfect the sale of a cha' tel and such. delivery was impossible in this case. We see then that a public sale of this reversion was impracticable and illegal, yet it was the duty of the administrator to have made the sale at public auction if made at all. But he disregarded his duty and sold at private sale to the only person who could have had possession — the owner of the life •estate.

In such sale there could have been no competition amongst purchasers, and little prospect of obtaining the full value. The general question whether a private sale by an administrator would carry the title to a bona fide purchaser without notice, where there was no mistake, fraud or collusion, notwithstanding a statutory direction that all sales shall be public was not observed, we do not consider necessary to be discussed here.

The relation in which Cole stood to the property and the parties in interest, together with the prima facia inadequacy of price growing out of gross mistakes, we think sufficient to annul this sale, although it should have been made in a regular manner. McBride, the administrator, in this transaction, was undoubtedly acting as trustee for the distributees of Murray, and according to the authority ofDargan & Bradford vs.

Richardson, above cited, Cole who possessed the life estate, stood in the same relation to them.— They are now complaining in their own person against both, and should not suffer the loss of their rights by the lollies and mistakes, and negligences of their trustees. An executor may not enter into hazardous bargains, whereby he jeopardizes the interests confided to his care. 4 Muntford Rep., 332. And a mistake which works injury, is always a ground of relief.

Now here are two parties, both standing in the relation of trustees to these minors, bargaining hazardously together, under evident and gross mistake, to the prejudice of their cestui que trust. For it is manifest if they acted in good faith, (and if they did not the transaction fails,) that they supposed the erroneous value placed upon the widow’s share of the four crops, was no more than the value of the reversion exchanged for and in satisfaction of it; when it appears therefore that this value was estimated materially too high, their own estimates fail to that extent of the value of the reversion.

Every one knows the vast; and yet variable difference between the nett and gross value of the cotton crops on a plantation; some planters purchasing their supplies, while others produce them mainly sfi home. Nor is the value of a reversion in slaves after a life estate, less uncertain. Many circumstances may add vastly to their value, or diminish it during the continuance of the particular estate.

The usual estimate of the annual increased value of a gang of slaves, we suppose to be about six per cent., and if this be true in this instance, their a purchaser who had paid the whole value of the slaves, would have received them at the termination of the life estate, with the addition of a natural annual increase of six per cent, in value, and this too, free of all charge or expense in keeping them; and this alone would have been no mean income on the investment. The facts of this case it is alledged, shows a result of this kind.

But these conjectures are capaple of being reduced to proximate certainty by reference to a master. It is suggested however,that there is an entire absence of proof as to the value of this reversion ; we do not think so. It is apparent from the record that the consideration was materially less than the estimate of the parties, and to this extent at least, there was inadequacy. But if there was no light upon this subject, the rule in chancery is that the purchaser of a reversion must prove that he gave a full price. Hickman vs. Smith 3 Russ. 433 ; Davis vs.

The Duke of Marlboro’ 2 Swanson p. 147, 151, 2 Atkins 185, 2 Vesy 149, 155 ; Wiseman vs. Beach, 2 Vernon 121 ; Barney vs. Tison 2 Vent. 359. With how much greater force must this doctrine apply to a purchaser who stands in the relation of trustee and is in privity with the estate for which he deals. The cases go so far as to declare that age makes no difference against persons dealing for their expectancies and some of them hold the doctrine that the character of heir is not a necessary ground of relief.

Surely the present complainants are entitled to the benefit of these principles, when both the vendor and purchaser stood in the relation of trustees to them when they were dealing with their expectancies. In the absence therefore of proof that the sale was fair and for afull consideration, it canneverbe confirmed infavorof a trustee in privity with the estate. We are of opinion that this bill is well brought and the complainants entitled to relief, That the slaves with their increase named in the deed of settlement should be partitioned among all the children of Mrs. Murray, afterwards Mrs. Cole.

That the sale of the reversion of the negroes allotted to Mrs. Cole as dower be allowed to stand only as a mortgage to secure the payment to the estate of Cole of the true nett value oí Mrs. Cole’s share of the four cotton crops set forth in the pleadings, and that it be referred to a master to ascertain and report such value, upon the payment of which, with interest, the said slaves shall be returned to the estate of Murray. Let the partition prayed for proceed in reference to the rights of the parties thus established.

The decree is reversed and set aside and the cause remanded to be proceeded in, upon principles not inconsistent with this opinion.