¶1By acquiescence in the claim that the respondents as administrators of the person from whom the title descended, or for having been the committee of the estate of such person at the time of his death, held a relation of trust to his heirs in respect of the real estate which descended from him to them, and therefore could not lawfully purchase such real estate for themselves at the partition sale thereof, and putting our decision on the ground that they purchased in their individual and not in their trust capacity, we would be apparently admitting that such trust relation existed, and that they could get around it by the subterfuge of purchasing, or saying they purchased, in their individual capacity, thereby establishing an apparent precedent which would be often cited hereafter. Administrators have no trust relation to the heirs in respect of an intestate’s real estate; and whatever authority these respondents had over the intestate’s real estate as committee in his lifetime ceased at his death. And where the trust relation exists the trustees are not permitted to purchase the property in their individual capacity. That is just what the rule prevents, and that they may be defendants in their individual capacity as well as in their trust capacity can make no difference in that respect. Dor do I wish to concur in the apparent view that a purchase by a trustee of the trust property at his own or at a judicial sale is not voidable at the mere election of the beneficiaries, instead of only by a judgment (Davoue v. Fanning, 2 Johns. Ch. 252 ; Anderson v. Fry, 123 App. Div. 46).
¶2Judgment affirmed, with costs.