The opinion of the Court was delivered as drawn up by
Parker C. J.The general question which has been at gued is, if this Court, in virtue of the statute of 1817, c. 87, has jurisdiction of the matters charged in the plaintiff’s bill. The plaintiffs are the administrators of John Grout deceased ; the defendant is the executor of Jonathan Grout deceased.
The plaintiffs allege in effect, that Jonathan Grout devised his homestead farm, which was under mortgage, to John Grout, upon certain conditions, viz. that the defendant, as executor, should, after paying the other debts, pay one half of the mortgage for the benefit of John Grout, and then 1000 dollars tc each of the testator’s five daughters, and then the other half of the mortgage, to the intent that John Grout should have a fee simple in the homestead farm ; that the defendant had sufficient assets, but did not appropriate them according to the trust, but in violation of his duty sold the homestead to pay debts, which he ought to have paid by other estate of the testator, and that he purchased the homestead, in the name of an *7agent, for himself, at a price much less than the value. The plaintiffs then pray that the defendant may be compelled to render an inventory and an account, and reconvey to the ad ministrators of John G.rout, for the use of his widow, heirs and creditors.
As to all the accounts and proceedings in the Probate Court, where upon the face of them that court has jurisdiction, this Court, as a court of chancery, has no jurisdiction, but will hold all that has been properly done there as conclusive. If any one was injured by any order or decree of that court, the remedy was by appeal to the Supreme Court of Probate. If, as the plaintiffs allege in the amended bill, the proceedings were void for fraud, and if the plaintiffs may treat them as a nullity, that would not give this Court, as a court of chancery, original jurisdiction. If the proceedings are merely void, the defendant must be cited to account in the Probate Court. If errors have happened, they are to be corrected in that forum, if corrected at all. We cannot, in this incidental way, re-settle an account here, which has been once settled there, any more than we could revise the question, whether there was a will, or whether it had been duly proved. The Court will proceed upon these principles in ascertaining the facts, if the cause shall come to a hearing upon the merits, to wit, what assets came to the defendant’s hands, what debts he has paid ; and so of every matter properly done or cognizable in the Probate Court, it is to be considered true and conclusive.1
In regard to the homestead farm, if the plaintiffs should prove that the defendant had assets sufficient to have redeemed the whole, after paying the debts and legacies, but violated his duty by selling it to a stranger, vho was innocent, such evidence would not give this Court jurisdiction, because there would be a complete remedy at law for pecuniary damages, and such only, in the case now supposed, could be recovered. The title would pass to the innocent vendee, and the plaintiffs would be entitled to recover damages for this, as for any other maleadministration of the estate. But if the plaintiffs should prove that the sale was made to an agent for the defendant’s *8account, and that the defendant in that way bought the estate in violation of his trust, when he had funds, after payment of the debts and legacies, to have redeemed, before the equity was foreclosed, we are of opinion, that those facts would bring the plaintiffs’ case within the statute. There would be an implied trust, arising under a will in the settlement of an estate, and there would not be so complete a remedy at law. A recovery of damages would not perhaps be so good a satisfaction as a recovery of the estate. The defendant still holds the estate, and may be compelled to convey it to the plaintiffs. Upon this point of the case it is to be observed, that the law will not permit one to buy an estate, which he was intrusted to sell, in such manner as to make any profit or benefit to himself.1 *3*It is not strictly true that the trustee may not purchase ; in other words, the purchase is not merely void. If the cestui que trust should acquiesce in the sale, he would be bound ; but if he dissents in a reasonable time, the trustee will be consider ed as holding for the benefit of the cestui que trust. A couA of chancery would have power to do justice in such a case, either by compelling a reconveyance, or the payment of the excess as ascertained by a second sale.2
If the bill should be sustained upon this ground, the proceedings in the Probate Court, which upon the face of them appear rightly done, will be taken to be true, as has been before stated. And the objection of long acquiescence will be entitled to much consideration, and perhaps will be a sufficient answer. Upon this point the Court would observe, that there is no precise rule as to what length of time, or what other fact or circumstance shall be considered sufficient proof of acquiescence. Lord Thurlow (2 Bro. C. C. 426,) seemed to think three years a long acquiescence. “ When,” he inquires, “ would such a transaction as this end, if not in three years.” *9In that case (Fox v. M'Creth) the defendant was held to account for the difference between the purchase and resale ; but it was a case strongly marked with gross fraud. In Whichcote v. Laiorence, 3 Yes. 752, the court thought that an acquiescence for six years by a large number of creditors ought not to oar. But in the case now under consideration, the plaintiffs did not bring their suit until nine years after the defendant enforced his purchase by a recovery against one of the plaintiffs, without any objection on her part; and the purchase was made eleven years before the plaintiff’s bill was brought. We are strongly inclined to think that such an acquiescence under such circumstances would be a sufficient answer.
And it is to be remarked, that no such bill in equity could then have been maintained. We are acting upon a statute, which has been passed many years after the transaction complained of, and considering the great caution and solicitude manifested by the legislature upon this subject, it seems to us that it would be carrying the remedy in equity to a great extent, if we were to open the transaction as to this point, viz. that the defendant himself became the purchaser, after so long an acquiescence. This however will be a matter for further consideration if the cause shall proceed upon a hearing of the merits.1
There is another part of the amended bill, as to which it seems we have jurisdiction, that is, as to the other parcels of land sold. The proceeds of the sale were carried into the account, and allowed by the judge of probate. But the plaintiffs now allege, that the defendant ought to account for a larger sum, because the defendant bought in the estates, and has made a profit of them. The objection to this point, viz. that the defendant is to be considered as trustee, buying for his own use, and so accountable for the excess of value, has already been noticed, and would apply to this part of the case as well as to the homestead farm. But as to the other point, viz. that the defendant had in fact assets to have paid off the incumbrances when he bought in the mortgage, or perhaps at any time be*10fore the foreclosure, the lapse of time ought not to prevent the proof; for if he had such assets, it seems that the conveyance to him was ipso facto in trust for the plaintiffs, and he could not acquire a title against them without their consent, in such way. So there ought perhaps to be no bar to the proof of such fact, short of twenty years, the statute bar for entries &c. on real estate.
And further, if the bill should be heard, it will be a question, whether the plaintiffs, who represent John Grout, should not have offered to pay the one half of the mortgage, which he was to pay according to the will, in case of a deficiency of assets to pay more than the debts and legacies and one half of the mortgage. In such a case the defendant would not have been obliged to pay the whole, and he could not redeem by paying half.
If the defendant should be now compelled to convey to the plaintiffs, it can only be on their paying him one half, and the defendants taking the other half out of the estate ; unless there are sufficient assets first to pay one half of the mortgage, then 1000 dollars to each of the five daughters, and then enough remaining to pay the other half of the mortgage.
Note. At September term 1828 the plaintiffs became non-suit. 1
See Paine v. Stone, 10 Pick. 76; Field v. Hitchcock, 14 Pick. 405, 407.
“ The cestui que trust is not bound to prove, nor is the court bound to decide, that the trustee has made a bargain advantageous to himself.” “ In all cases where a purchase has been made by a trustee, on his own account, of the estate of his cestui que trust, although sold at public auction, it is at the option of the cestui que trust, to set aside the sale, whether loud fide made or not.” 1 Story on Eq. 318. See 1 Story on Eq. 316 to 319; Litchfield v Cudworth, 15 Pick. 31.
See Hayward v. Ellis, 13 Pick. 276; Litchfield v. Cudworth, 15 Pick. 31.
See Jennison v. Hapgood, 10 Pick. 77, 111; Houghton v. Hapgood, 13 Pick. 158.
See Jennison v. Hapgood, 10 Pick. 77; Houghton v. Hapgood, 13 Pick. 154; Grout v. Hapgood, 13 Pick. 159; Jennison v. Hapgood, 14 Pick. 345, Paine v. Hapgood, 13 Pick. 152.