Dilworth's Appeal

Mr. Justice Trtjnkey

delivered the opinion of the court January 5th, 1885.

This appeal and the appeals by Sarah S. Bidwell and W. P. Dilworth, executor, are from the same decree, and were heard together. Of the questions raised by the numerous assignments of error we discover but one that need be remarked, namely, is the executor of William Dilworth, deceased. liable to account for the increase in value and -the rents of the land he conveyed to Mrs. Dilworth, from the date of said conveyance until she conveyed it to Rev. Reid? All other questions were well considered.

The marshal’s deed for. the land purchased by the executor, was acknowledged on July 19th, 1879, and on November 17th, in the same year, Mrs. Dilworth received her deed. In making the purchase the executor paid over $8,000, his own money, to satisfy prior liens — there was no available fund belonging to the estate with which he could have purchased. “ The value of the five lots and house conveyed’ to Mrs. Dilworth, was at the time of the convejumce $5,000.” It is not found by the Orphans’ Court that the executor, in any particular, acted recklessly, or in bad faith; nor is there evidence of actual fraud.

When the land was conveyed to Mrs. Dilworth the power of the executor to control it ceased. Thereafter he had no potential control before it passed into the hands of a bona fide purchaser for value. As respects the executor she owned it and had as good right to sell and convey as if she had been such purchaser. True, it was not a sale. It was an executed gift, and could only be avoided at the election of the legatees. They could avoid a sale and conveyance to a purchaser for value, if he had notice of the trust, as well as a conveyance to a volunteer; in either case they could, if they so elected, recover the land. And in either case, after the land has co'me into the hands of an innocent purchaser, they may compel the executor to account for all the profit which has been made by him, with interest on said profit. This rule was applied to the proceeds of the land which the executor sold to Lawrence Dilworth. Had the executor recklessly, or in bad faith, sold the land to him for less than its market value, he would be liable to account on the basis of that value instead of the purchase money. In case of fraud in fact he might, also, be held to account for the increased value of the land after it passed into the hands of his vendee. It was the duty of the executor to make a bona fide sale of the land for its value in the interest of the legatees. He was not bound to hold it for higher price. Uninformed of the legal rule applicable to the facts .he believed he held the land in his own right, and disposed of it accordingly. He conveyed a part to his daughter for the expressed consideration of $5,000, and that sum was its value. He was able to give it without hurt to anybody, and he did no more wrong in so conveying than if she had paid him the money. Thenceforth the rise in value and use belonged to her. Her title was not void, none could avoid it except the legatees.

There is no occasion to inquire whether the legatees might have compelled the trustee to purchase other lands of .equal value, for they have elected to take the proceeds of the sale with interest. Where the trustee, having mistaken his right, at a proper time, conveyed the land ostensibly for its value, why should he be held liable for a larger sum? Is he deserving of punishment as one guilty of negligence or turpitude? Mrs. Dihvorth’s sale put it out of the power of the cestuis que trustent to recover the land itself. They compel the trustee to account for his profit. In absence of actual fraud, he is liable with respect to the land he conveyed to a volunteer to the same extent as for that he sold to a purchaser with notice of the trust. The liability is measured by the market value, át the date of the conveyance.

We are of opinion that it was error to surcharge the executor with the amount paid to Mrs. Dil'worth'by Rev. Reid and interest thereon from November 22d, 1882, and, with rent on the house and lots conveyed to Mrs. Dilworth after Nor; vember 17th, 1879. Instead, the surcharge should - be $5,000 with interest from November 17th, 1879.

Decree reversed, at the costs of the appellees, and record remitted for further proceeding. ;