The opinion of the court was delivered by
Redfield, J.The only questions, argued in the present case, regard the liability of-the “Clement Lot” to be treated as still a part of the assets of the estate of Frederic Pettes. This is resisted upon numerous grounds, none of which seem altogether satisfactory to this court. We shall dispose of them as briefly as possible.
I. In regard to Mrs. Pettes’ claim, it may be said, that there is no necessity of treating her dower in the brick store and the land as extinguished, at law even, in order to grant the relief asked for. That seems to us a secondary question altogether. Allowing that she had a subsisting interest in that lot at the time of the sale to Marsh, (which is altogether problematical,) it must appear, that some portion of the avails of the sale of that interest has gone to the benefit of the estate of Frederic Pettes, in order to give her any *475equitable lien upon the “ Clement Lot,” as a mortgage; and she claimed no other interest, during her life time. She never had and never claimed any interest as purchaser.
And in order to answer the purpose of giving her an equity to hold the “ Clement lot ” against the creditors of Frederic Pettes’ estate, her money must have actually been paid over to them. For Sargeant, as administrator, had no authority to buy her interest in the brick store and lot, and mortgage the real estate of his intestate to pay for the same, by way of annuity, during her life. And being bound to know the law, she had no right to make any such contract with him, as administrator ; and if she did, it was at her own peril. He became her agent in receiving the money of Marsh, (even assuming that it was her money,) and he held it,as her agent, until he actually paid it over to the creditors, unless the judgment of the probate court has changed the matter, — which we shall hereafter examine. And the defendants having waived a hearing before the master, it must now be treated the same, as if it were found, that none of the avails of Mrs. Pettes’ estate in the brick'store went to the creditors of Frederic Pettes.
Jabez Sargeant, then, being merely the debtor of Mrs, Pettes for the avails of her dower in the brick store and lot, could not mortgage the property of the estate to secure that debt. And the transaction, by which the title of the “ Clement lot ” was conveyed to the defendant Simonds to secure the payment of an annuity to Mrs, Pettes and the remainder in trust for Sargeant, is nothing more, or less, than applying the property of the estate to secure his own debt. And Mrs. Pettes, knowing all the facts, is bound to know the law arising upon the facts. We do not think it necessary, then, to go into the inquiry, what interest Mrs. Pettes had in the brick store and lot. This disposes of all equity in Mrs, Pettes, as superior to Sargeant.
II. It is claimed, that Sargeant had an absolute title to the “ Clement lot.” If so, his proceeding since the commencement of this suit, under the advice of counsel, by which he declared a trust for the remainder, after securing Mrs. Pettes., in favor' of the creditors of Frederic Pettes, was certainly most remarkable. It must either have resulted from wrong advice, or a consciousness of some moral or equitable infirmity in his title. Put aside from that,—
*4761. The administrator has no right to become a purchaser of the ■estate, upon which he administers, even when he is solvent and pays the full price. And if he do so indirectly, it is competent for those interested in the estate, upon discovering such purchase to be for 'his benefit, or in a reasonable time thereafter, to compel a re-sale,— ■or they may elect to treat him as a purchaser.
2. It cannot be said, that the passing of the administration ac■count and charging Sargeant with the amount of this sale concludes the estate. For that is a thing done by Sargeant himself, where he :is in fact both plaintiff and defendant. And in a late case in Addison county, Heirs of Adams v. Adams et al., Adm’rs, 22 Vt. 50, such an accounting was held to be of no force, as against a proceeding in equity. ' And if it be said, that such a judgment cannot be attacked thus collaterally, it should be borne in mind, that this came m by way of defence, and is not pleaded by way of estoppel, but ■only by way of recital; and in such cases the judgment is merely •evidence, to have such effect as the triers of the matter of fact deem ¡reasonable, — which in most cases is indeed regarded as conclusive, but in the present case could not be esteemed of any force, because the estate was represented, on that occasion, by Sargeant, who was ■the only party in interest adverse to them; and the creditors were ■evidently not aware of his insolvency and that of his bail, or that he would not pay over the amount of the sale. And in the very same answer, 'Sargeant sets forth his having now conveyed the remainder ■of the ¡estate to Simonds, in trust for the creditors of the estate, — - thus, in effect, waiving all benefit of being charged in his administion account with the price of it.
As to his being charged with interest on the price, in his second account, that is a mere collateral matter, and of no force, except as matter of evidence, and not satisfactory in that view. We cannot suppose it was the intention of the present administrator thus to ratify the sale; for it was either since or just about the time of the institution of the suit, December, 1843, — the subpoena to the bill being dated December 1, 1843. This item of interest might have been allowed, as rent actually received by Sargeant, or which he ought to have received, between the time of the sale in February, 1841, and the second acco.unting.
As to-the .charging .'Sargeant in his .second account with money *477received on the $500,00 note, given for what he claimed as Mrs. Pettes’ interest in the brick store, it passed doubtless on the ground, that she did not regard it as her property, and that it uias in fact the property of the estate. And it is supposable, and even probable, that it might have been allowed on the ground, that Mrs. Pettes in fact had no interest whatever in the brick store, — which was most undoubtedly the fact, — and her interest in the land (if she had not relinquished it, which is more than probable) was less than the balance of the note, which Sargeant sold and received pay for and never accounted for, even in form.
As to the decree of dividend, it is but a portion of the judgment passing the administration account, and merits the same consideration only. The orator is the proper person to bring this bill; it is a proper matter for the consideration of a court of equity, involving both matter of trust and of fraud, both of which are eminently matters within the proper cognizance of such court. We entertain no doubt the probate court will be able to so distribute this estate, as to do justice among the creditors. If Sargeant, or his sureties, should ever rise above their present stale of security from ; insolvency, so that the fact, that the price of this land is included in his account, is of any practical importance to them, the probate court, or a court of equity, will readily set the matter in a safe condition. This property has not fairly and fully been administered upon, until it reaches it ultimate destination, the hands of the just creditors. The sureties of Sargeant have no equity superior to that of Sargeant, as to this estate. We think, there was no adequate remedy at law.
We think, therefore, that the decree of the court of chancery should be affirmed in all respects, and the case remanded to that court to be carried into effect.