By the Court
Nisbet, Judge.
The facts in this case are as follows: James H. Wright departed this life, testate, leaving his wife, Elizabeth Wright, and two other persons, his executors; Mrs. Wright alone qualified. The testator in his will directed that his notes and accounts be applied to the payment of his debts, and should they prove insufficient, he declares it to be his will and desire, “that a sufficient portion of my estate, real or personal, as my executors shall deem most advisable, be sold to pay my debts.” The notes and accounts proving insufficient to pay the debts of the testator, she sold a parcel of the negroes at private sale to Bond and Murdock, to pay his debts.
[343]*343According to the testimony, Bond and Murdock were creditors of the estate,"to half the amount of the purchase-money, which was allowed them ; the other moiety they paid in cash. The executrix executed to them her bill of sale for the negroes. It is not shown, by the record, that the sale was on any account fraudulent; no collusion or covin is established. William Zeigler, the defendant in error, being also a creditor of the estate of James H. Wright, deceased, having reduced his claim to judgment against the executrix, caused a levy to be made upon the negroes so sold, as aforesaid, in the hands of Bond and Murdock, the purchasers, as the property of the estate. Bond and Murdock interposed a claim. Upon the trial of the claim, it was conceded that the estate was largely in debt, and that the notes and accounts were wholly insufficient to pay the debts. In support of their title, the claimants tendered the bill of sale of the executrix for the negroes sold to them, and now in controversy, to which the counsel for plaintiffs in execution excepted, upon the ground that it appeared, upon the testimony, that the sale of said property had been made by the executrix privately, and without the statutory notice. The exception thus taken was sustained by the court, and the bill of sale repelled, on the ground that the executrix had no authority to sell at private sale, and that no title could vest in a purchaser, except after advertisement and upon public sale. To this judgment of the court below, the plaintiffs in error except, alleging that it is contrary to law; that the executrix had authority, under the will, to sell at public or private sale; and that, therefore, the title of the purchasers is good.
It was not exactly regular to attack this title thus collaterally ; it was competent for the creditors, in a different form of proceeding, to have made a direct issue upon its validity. But waiving this point, we adjust ourselves to the consideration of the questions made in the assignment. They are of great practical importance in this community ; questions upon which executors and guardians, very generally, no doubt, are willing to receive the instructions of this court. The main question made in this case, is this: do the purchasers acquire a good title to the property, as against the creditors of James II. Wright, deceased ? This question depends altogether upon the previous question, viz : had the executrix the power, under the will of her testator, and by the laws of Georgia, to sell, as she did sell, at private sale ?
It is proper to remark, that the learned counsel for the defendants in error, admitted in argument the power and right of the executrix to sell, contending, however, that she could not sell at private sale, but must sell at public sale, and in the manner pointed out by the acts of our own Legislature. This admission narrows somewhat the inquiry; yet, to a fair elucidation of the points in controversy, we find it necessary, briefly and rapidly, to review the common law doctrine, as to the power of an executor over the estate of his testator, and as to the rights of purchasers setting up title under an executor. In England, it is a general rule, that an executor has an absolute power of disposal over the whole personal estate of the testator. The realty descends there to the heir; and as real and personal estates are by statute upon the same footing here, we might say that this power extends in Georgia to lands.
Another general rule of the common law is, that the effects cannot be followed in the hands of purchasers by creditors or legatees; nor are [344]*344they required, before buying, to look into the accounts of the executor, to ascertain that he is faithfully administering his trust; the law presumes this, in his favor. Nor are purchasers required to see to the proper application of the purchase-money: in the language of Lord Thur-low, in Scott vs. Tyler, “ What becomes of the price, is no concern to them.” These are general rules of the common law, and are founded in the most obvious expediency ; indeed, in the most manifest justice to the trustee, his cestui que trust and the alienee. Without such a power of disposition, an executor could not execute the trust devolved upon him, and therefore no one would be found to fill fiduciary situations. The departed would in vain have left wills, for nobody would execute them. Without such immunity to purchasers, no one would deal with an executor.— Williams' Exrs. 671-675, sec. Am. ed.; 4 Term. R. 625; 1 Atk. 463; 1. Cox R. 145; 2 Dick. R. 725; 2 Story's Eq. sec. 1128-1130; 7 Johns. Ch. R. 150; 3 Atk. 235; 2 Vesey R. 269; 2 Vesey R. 466.
are general rules, are not exceptions. Exceptions to the general power of an executor to dispose of the estate of his testator, will be found in those cases only where collusion exists between the representative and the purchaser. That an executor may waste the trust estate, is not sufficient to invalidate the sale ; it must further appear that the purchaser participated in the devastavit. Fraud and covin will vitiate any transaction ; and if the purchaser concerts with an executor, by obtaining the testator’s effects at a nominal value, or at a fraudulent undervalue, or by applying the value to the purchase of other effects for the behoof of the executor; or if he knows, that, from the face of the transaction, the executor is applying the assets to the payment of his own debts;' in all such cases, and all others falling within the reason of these, not only will the executor be liable over for a devastavit, but the purchaser buys at his peril — gets no title, and holds thcj property encumbered with the trust. — See the whole doctrine reviewed by Chancellor Kent in Field vs. Schieffelin, 7 Johns. Ch. R. 150. It is, as I have already stated, not necessary, in general, that the purchaser should look to the application of the purchase-money ; where, however, a trust is created for the payment of specific debts, or for a special object, the purchaser is bound to look to the application of the purchase-money. — Story's Eq. sec. 1127-1130: 3 Mason, 218.
Now, as in this case there was no fraud, or collusion, or covin, between the executrix and the purchasers, according to these general common law principles, they acquired a good title.
The power to sell is an incident to the office of an executor, without directions to that effect in the will; if the will authorizes or directs a sale, a fortiori, he is empowered to sell: indeed, he has no discretion ; he is bound to sell. The will is the law of the trust, and the measure of his obligations.
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By the Court
Nisbet, Judge.
The facts in this case are as follows: James H. Wright departed this life, testate, leaving his wife, Elizabeth Wright, and two other persons, his executors; Mrs. Wright alone qualified. The testator in his will directed that his notes and accounts be applied to the payment of his debts, and should they prove insufficient, he declares it to be his will and desire, “that a sufficient portion of my estate, real or personal, as my executors shall deem most advisable, be sold to pay my debts.” The notes and accounts proving insufficient to pay the debts of the testator, she sold a parcel of the negroes at private sale to Bond and Murdock, to pay his debts.
[343]*343According to the testimony, Bond and Murdock were creditors of the estate,"to half the amount of the purchase-money, which was allowed them ; the other moiety they paid in cash. The executrix executed to them her bill of sale for the negroes. It is not shown, by the record, that the sale was on any account fraudulent; no collusion or covin is established. William Zeigler, the defendant in error, being also a creditor of the estate of James H. Wright, deceased, having reduced his claim to judgment against the executrix, caused a levy to be made upon the negroes so sold, as aforesaid, in the hands of Bond and Murdock, the purchasers, as the property of the estate. Bond and Murdock interposed a claim. Upon the trial of the claim, it was conceded that the estate was largely in debt, and that the notes and accounts were wholly insufficient to pay the debts. In support of their title, the claimants tendered the bill of sale of the executrix for the negroes sold to them, and now in controversy, to which the counsel for plaintiffs in execution excepted, upon the ground that it appeared, upon the testimony, that the sale of said property had been made by the executrix privately, and without the statutory notice. The exception thus taken was sustained by the court, and the bill of sale repelled, on the ground that the executrix had no authority to sell at private sale, and that no title could vest in a purchaser, except after advertisement and upon public sale. To this judgment of the court below, the plaintiffs in error except, alleging that it is contrary to law; that the executrix had authority, under the will, to sell at public or private sale; and that, therefore, the title of the purchasers is good.
It was not exactly regular to attack this title thus collaterally ; it was competent for the creditors, in a different form of proceeding, to have made a direct issue upon its validity. But waiving this point, we adjust ourselves to the consideration of the questions made in the assignment. They are of great practical importance in this community ; questions upon which executors and guardians, very generally, no doubt, are willing to receive the instructions of this court. The main question made in this case, is this: do the purchasers acquire a good title to the property, as against the creditors of James II. Wright, deceased ? This question depends altogether upon the previous question, viz : had the executrix the power, under the will of her testator, and by the laws of Georgia, to sell, as she did sell, at private sale ?
It is proper to remark, that the learned counsel for the defendants in error, admitted in argument the power and right of the executrix to sell, contending, however, that she could not sell at private sale, but must sell at public sale, and in the manner pointed out by the acts of our own Legislature. This admission narrows somewhat the inquiry; yet, to a fair elucidation of the points in controversy, we find it necessary, briefly and rapidly, to review the common law doctrine, as to the power of an executor over the estate of his testator, and as to the rights of purchasers setting up title under an executor. In England, it is a general rule, that an executor has an absolute power of disposal over the whole personal estate of the testator. The realty descends there to the heir; and as real and personal estates are by statute upon the same footing here, we might say that this power extends in Georgia to lands.
Another general rule of the common law is, that the effects cannot be followed in the hands of purchasers by creditors or legatees; nor are [344]*344they required, before buying, to look into the accounts of the executor, to ascertain that he is faithfully administering his trust; the law presumes this, in his favor. Nor are purchasers required to see to the proper application of the purchase-money: in the language of Lord Thur-low, in Scott vs. Tyler, “ What becomes of the price, is no concern to them.” These are general rules of the common law, and are founded in the most obvious expediency ; indeed, in the most manifest justice to the trustee, his cestui que trust and the alienee. Without such a power of disposition, an executor could not execute the trust devolved upon him, and therefore no one would be found to fill fiduciary situations. The departed would in vain have left wills, for nobody would execute them. Without such immunity to purchasers, no one would deal with an executor.— Williams' Exrs. 671-675, sec. Am. ed.; 4 Term. R. 625; 1 Atk. 463; 1. Cox R. 145; 2 Dick. R. 725; 2 Story's Eq. sec. 1128-1130; 7 Johns. Ch. R. 150; 3 Atk. 235; 2 Vesey R. 269; 2 Vesey R. 466.
are general rules, are not exceptions. Exceptions to the general power of an executor to dispose of the estate of his testator, will be found in those cases only where collusion exists between the representative and the purchaser. That an executor may waste the trust estate, is not sufficient to invalidate the sale ; it must further appear that the purchaser participated in the devastavit. Fraud and covin will vitiate any transaction ; and if the purchaser concerts with an executor, by obtaining the testator’s effects at a nominal value, or at a fraudulent undervalue, or by applying the value to the purchase of other effects for the behoof of the executor; or if he knows, that, from the face of the transaction, the executor is applying the assets to the payment of his own debts;' in all such cases, and all others falling within the reason of these, not only will the executor be liable over for a devastavit, but the purchaser buys at his peril — gets no title, and holds thcj property encumbered with the trust. — See the whole doctrine reviewed by Chancellor Kent in Field vs. Schieffelin, 7 Johns. Ch. R. 150. It is, as I have already stated, not necessary, in general, that the purchaser should look to the application of the purchase-money ; where, however, a trust is created for the payment of specific debts, or for a special object, the purchaser is bound to look to the application of the purchase-money. — Story's Eq. sec. 1127-1130: 3 Mason, 218.
Now, as in this case there was no fraud, or collusion, or covin, between the executrix and the purchasers, according to these general common law principles, they acquired a good title.
The power to sell is an incident to the office of an executor, without directions to that effect in the will; if the will authorizes or directs a sale, a fortiori, he is empowered to sell: indeed, he has no discretion ; he is bound to sell. The will is the law of the trust, and the measure of his obligations. He may not depart from its requirements, unless, indeed, they be in violation of the laws of the State. Whatever title the testator himself has to his effects, his executor under a power in the will may convey. These are principles so familiar, that I deem it useless to cite authorities to them. By the will of Mr. Wright, his executors are expressly authorized to sell his real or personal estate, “ as they may deem most expedient,” to pay his debts, upon the contingency That his notes and accounts would not be sufficient to pay them ; that contingency occurred, [345]*345and in pursuance of the will, a number of the negroes were sold. 3S’ow, unless that sale was void for some cause growing out of the statute laws of Georgia, the purchasers, beyond all controversy, acquired to them the same title which the testator had, and a title, too, good against his own creditors. The conclusion of the law is, that the executor will apply the proceeds of the sale, bona fide, to the extinguishment of the debts, and there is no equity in the creditor’s receiving the price, and then also appropriating the property. The purchasers were themselves creditors, to the extent of one-half the purchase-money; the extinguishment of their debts was a valuable consideration. They had as much right to be paid as other creditors, and stand before this court upon the same footing to the extent of their claims against the estate with the plaintiffs in execution. As to the other moiety of the purchase-money, they having paid that in cash, occupy the ground of bona fide purchasers. It is not a sufficient answer to all this, to say, as was said by counsel for the defendants in error, that the estate was wasted ; that these purchasers were favored as creditors contrary to law; that the estate was insolvent, and the debts ought to have been paid according to the grade established by statute. It is no answer to say, that the recognition of this sale is a practical abolition of the law, which designates the order in which the debts of an insolvent estate are to be paid. The reply to reasoning of this kind, is this : If the executrix has mismanaged the estate, she is liable personally for the devastavit. Farther, if the creditors were apprehensive that the estate would prove insolvent, and knew that the executrix was mismanaging it, equity stood ready to furnish them with a process to compel her to administer the trust according to law. If it is still urged, as it was urged, that this is a hard case, then we reply, the general rules of the law cannot give way to the imaginary or real hardships of particular cases ; the safety of all rights depends upon the unrelenting universality of the laws which protect them.
.But, conceding the power and the obligation in this case to sell, it is contended, that, inasmuch as the will is silent as to the manner of the sale, it was the duty of the executrix to have sold in the manner pointed out by the laws of Georgia, regulating the sale of slaves by executors ; not having sold according to this manner, the sale is therefore void. It is, to bo more definite, contended, that the executrix should first have applied to the Court of Ordinary, and obtained an order for the sale of these negroes ; that the sale should have been at public auction, on the first Tuesday in the month, at the place of public sales, in the county where the letters testamentary were granted ; having given sixty days’ notice thereof in one of the gazettes of this State, and at the door of the courthouse, in the county where the sale was intended to be held. These are substantially the requirements of the act of 21st December, 1829.— Prince, 254. The defendants in error also rest their case upon the act of February 29th, 1764, which requires “ all intended sales of goods and chattels belonging to testators or intestates, to be published in two or more public places in the parish where such effects are to be sold, and in the gazette at least forty days before the day of such intended sale.- — Prince, 223.
Wo are of opinion that the act of 1764, for reasons which we shall presently give, has no relevancy to this case ; and the first remark we [346]*346make upon the act of 1829 is this: it was intended to apply only to cases where the will gave no instructions whatever as to the sale of property. The Court of Ordinary is authorized to grant an order for sale, upon the application of the executor. What need, it may be asked, of such an application, if the testator has himself directed a sale ? Would the order in such a case be any greater protection to the executor than the will itself ? Certainly not; it would be an act wholly supererogatory. Suppose that the will directs a sale for a certain purpose, and in a certain way, and 'the Ordinary, upon the application of the executor, should order a sale for a different object, and in a different manner; would that order be a protection to the executor ? Unquestionably not. If the will speaks at all, its language is both a protection and a mandate ta him. The power of the Ordinary can in no case relieve the executor from his liability as trustee, or shelter him from the consequences of adevastavit. The most that can be said of these orders of the Ordinary is, that they are wisely precautionary — designed to protect the interests of orphans, legatees and distributees, and are only prima facie evidence of a faithful administration of their trusts in favor of executors, administrators and guardians. He who believes that an order of the ordinary will protect him from liability as a trustee, will do well to wake up at once from so flattering and false a delusion. The will of a testator, although a complete protection for any actwhich it legally authorizes, is notitselfby any means a protection against unfaithfulness or negligence in the manner of doing it. — But, to return: What necessity is there, we inquire again, under these views of the subject, for an order to sell negroes, when the will directs a sale ? Our conclusion is, that the act referred to never was intended to operate in any such case.
The Legislature never intended to interfere with the right of the citizen to direct the manner in which his estate should be administered ; a right as sacred and as necessary as the right of testamentary disposition itself. They only intended to authorize a sale, in cases where the will, making a general disposition of the estate, is silent as to sales. Cases do often occur, where such-sales would benefit the heirs and creditors, without interfering with the dispositions of the testator. These comments on the act of 1829 are made to introduce the following remarks, to wit: in our opinion, the will of Mr. Wright does not alone direct the sale of his negroes, but, by necessary legal construction, also directs the manner of the sale ; and if it does, then the provisions of the act of 1829 do not apply to it. There are two ways of selling; two modes, public and private. We say nothing of degrees of publicity and privacy. Legally, and in the view of common sense, these are the modes of effecting a sale. Now, because the testator did not specify the one or the other, he meant to leave it to the discretion of his executors, to adopt the one or the other, according as they might believe the one or the other would best promote the interests of his estate. And when the executor has elected, that is the mode which the testator meant. In other words, the discretion placed in the hands of the executor is-part of the meaning and intent of the will, and it is not competent to strain the construction of a statute, to control the intent of the testator. Such a construction of this will is sustained by authority, and is in accordance with reason. In cases where a power is conferred, and the manner of executing it is not prescribed, and [347]*347there aro more ways than one of enacting it, the appointee is left to his discretion as to the manner. — 4 Kent’s Com. 331; Sugden on Powers, 201.
There are good reasons for such a rule of construction. The testator is presumed to have left the mode of the sale undetermined, because ho could not foresee whether, in the event it should become necessary to sell his lands'or negroes to pay his debts, it would be more to the interest of the estate to sell at public or private sale. In some conditions of the estate, and in some states of the market, a private sale might be most judicious ; at others, a public sale. It might not be the interest of the estate to sell the negroes in one, and only one, county, as the statute directs. It might be to the interest of the estate, with a view to a better price, to take the negroes out of the State to a better market. Considerations of this kind might, and in this case, doubtless, did, enter into the mind of the testator, and, therefore, all these things are left to the discretion of his chosen fiduciary agent. It is a personal trust, both the sale and the discretion as to the manner, with which the Court of Ordinary has no right to interfere. Again : if the testator intended his executors to be subject to the ordinary, under the act of 1829, why make any provision at all, as to the sale of his negroes? The power to sell would have existed without any authority under the will. The discretion, therefore, as to the manner, we think, was intentionally devolved, in this case, upon the executors, and the will having thus regulated the manner of the sale, this is not one of the cases contemplated by the act of 1829.
This act, moreover, does not declare that no sale of negroes by an executor shall be made, unless according to its provisions; it is not inhibitory. It makes it lawful for the Court of Ordinary, on the application of the executor, to grant an order for sale, if it is made plainly and fully to appear, that the same will be for the benefit of the heirs and creditors. Upon such application being made, the court may, or may not, take, with the executor, the responsibility of a sale, and extend to him the benefit, legal and moral, of the prima facie protection which its order will afford. If, upon the application being made, the court grants the order, then the statute prescribes the place and manner of the sale. If no application be made, then the executor is left to the rights and responsibilities which appertain to him under the general laws of the land; to these he is amenable, under all circumstances and at all events, for the proper execution of his trust. Bo we, then, by this construction, make void the act of 1829 ? By no means. Its precautionary protection to the rights of minors, legatees and creditors, in all cases to which it applies, as well as its prima facie protection to executors, administrators and guardians, continues. The act of 1764, we think, applies alone to the perishable property of the decedent. “ Goods and chattels ” do not here mean slaves. If they did, this act, so far as slaves are concerned, is repealed by the act of 1829 ; for that relates to slaves, exclusively, and some of its provisions are in conflict with the act of 1764. It was also claimed, in argument, that the act of 1805 applied to this case. We think not: for its provisions embrace administrators only, and cannot, therefore, be extended to executors. Upon the best consideration we have been able to give to this subject, we are constrained to believe that the court below erred in its judgment, in the questions submitted to us, and, therefore, we reverse it.