The opinion of the Court was delivered by
Mercur, J.This contention arises between the executor of CharlotteBridaham and one claiming as a purchaser from her during her life. This decree appears to have been made under a misapprehension of the power and duty of the auditor to-decide on the validity of the alleged purchase The judgment in the feigned issue of Bridaham v. King established the validity of Charlotte’s will, but not the validity nor the invalidity of appejlant’s purchase. Her previous execution of a will did not prevent her from selling and transferring the property in question. If she owned the property at the time of her death, the proceeds were correctly decreed toiler executor. If, however, she had sold and transferred the same during her life, then the proceeds thereof should be decreed to the purchaser or those claiming under him.
The appellant gave in evidence an instrument in writing, *266under seal, on its face duly executed and acknowledged by Charlotte, whereby she sold and transferred the property to him. The validity of this instrument appears to have been questioned, and fraud, misrepresentation, and absence of sufficient consideration in its execution, and a failure of performance by the appellant alleged. Without examining and passing on the questions thus suggested, the auditor concluded that if the agreement was valid, yet, nevertheless, the fund should be decreed to the executor, and if the appellant had any claim which could be enforced, it should be made against the executor. In confirming the report, in so far as it rested on such assumption, the learned judge erred. The ease must therefore be sent back, with instructions to hear the evidence, and to pass upon and decide the several questions affecting the validity of the written instrument, and to decree in accordance with this opinion.
Decree reversed, and a procedendo awarded.