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170 SALMON v. CLAGETT.
buying, or receiving as a pledge for money advanced to the exe-
cutor, at the time, any part of the personal assets, whether specifi-
cally given by the will or otherwise; because this sale or pledge is
held to be prima facie, consistent with the duty of an executor.
Generally speaking he does become a party to the breach of trust
by buying or receiving in pledge any part of the personal assets,
not for money advanced at the time; but in satisfaction of his pri-
vate debt; because this sale or pledge is prima facie, inconsistent
with the duty of an executor. (I)
In this case the administratrix has not sold or pledged the assets
of her intestate for money advanced to her by Salmon; but she has
mortgaged them to indemnify Salmon for any loss he may sustain,
in the manner described, from Thomas Clagett. Salmon has
advanced no money to this administratrix which she might, or
might not have applied to the uses, and for the benefit of the estate
of her intestate. On the contrary, this mortgage is, on the part of
the administratrix, a voluntary pledge of the assets of her intestate,
to insure the payment of the debt of another. It is upon the face
of it, and in terms an application of the assets in a manner wholly
inconsistent with her duty as administratrix; and Salmon, as the
grantee, is a party to this breach of trust. This mortgage must,
therefore, be considered, at least prima facie, in equity as a fraudu-
lent application of the assets, as against all those who have a claim
upon them as creditors, or next of kin of the intestate.
But there is here no creditor, nor any one of the next of kin of
the deceased who makes any objection to this mortgage, or who
asks to have it set aside, on the ground of fraud, to let in his
claim. There is no such person now here attempting to follow
these assets for any such purpose. And if there be any one who
has an interest in the personal property so pledged independently
of, and superior to those bound by, or who claim under this deed,
they are not now before this court. And it is very clear, that none
of these defendants can be suffered to impugn their own deed for
the benefit of others not parties to this suit.
Administration was granted to this defendant Elizabeth Clagett,
so long ago as the year 1816, and she executed this mortgage on
the 22d of September, 1827, then having this property in her pos-
session. It is not intimated, that there are any outstanding debts
due from the intestate; and if these his children, who are here as
(l) Keane v., Robarts, 4 Mad. 357; Downes v. Power, 2 Ball & Bea. 491.
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