Harrison, et al. v. Foster, et al. tected. Lord Eldon says, "The estate is given as all his personal estate, and the mode in which he (the testator) says it is to be enjoyed, is to one for life, and to the others afterwards; and unless the testator directs the mode, so that the perishable part shall continue as it was, the Court understands that it shall be put in such a state that the others may enjoy it after the decease of the first." The principle thus stated, is clear and obvious to every one-a bequest of perishable chattels to one for life, with remainder to another, without some direction as to the mode of enjoyment, shews the intention of the testator that each taker shall have the same mode of enjoyment, and this can only be by a sale of the chattel, or by charging the first taker with the value. This, in effect, is the general rule, stated in Porter v. Tourney, 3 Vesey, 311, and Randall v. Russell, 3 Merrivale, 190; though the qualification of the rule by the intention of the testator is not stated, nor was it necessary to be stated, as in neither case was the point presented for decision. The case of Madder v. Madder, (2 Leigh, 277,) is one where the general rule was governed by the intention as gathered from the whole will; and Smith v. Barham (2 Devereux Eq. 420,) is a will where there was no apparent intention to control the general bequest. The decision in Robinson v. Collier, (1 Hill's Eq. 370,) certainly seems irreconcileable with the principle as stated by Lerd Eldon; for, in our judgment, the testator there seems to have disregarded the manner in which the estate for life should be enjoyed; but the decision turns upon the supposed distinction between a specific bequest, and the bequest of a general estate, or a general residuum. This distinction seems to rest on the obiter dicta of Lord Alvanley and Sir William Grant, in the cases of Porter v. Tournay, and Randall v. Russell, previously cited; but it is denied in Madder v. Madder, before cited, and Evans v. Inglehart, (8 G. & J. 171.) For ourselves, we are entirely satisfied the true principle is stated by Lord Eldon in Howe v. Dartmouth, previously quoted, and that when the intention is otherwise clear, it makes no difference whether the bequest is specific, or general, or of a residuum. It comes then to an enquiry as to the intention of the testator, and when the will in this case is thus tested, there can be but one opinion. He evidently intended only so much of his stock, or loose property to be sold, Creagh & Forwood v. Savage. as would pay his debts; the remainder was given to his wife for life or widowhood, to use in any necessary or lawful way— to dispose of it for her convenience or for her necessary use. She was even authorized to sell it for a valuation, and the meaning of this term is sufficiently explained by a subsequent clause, when he provides, if his wife should marry, she might be at liberty to take any choice slaves at a valuation. It is clear, we think, the testator intended his wife should have the entire use of all his chattels, and that this use was to be in accordance with the custom of the country. It would seem to follow, that every thing of the original stock remaining in specie at the death of Mrs. Foster, was distributable between her personal representatives and the legatees under the will of her husband, and that her executors are not chargeable with the perishable articles, except so far as they come to their hands, or so far as sold by her, not for her convenience or pecessary use. The decree being inconsistent with this view of the law, must be reversed, and a new account taken or the one confirmed, reformed so as to carry out this opinion. Decree reversed and remanded. CREAGH & FORWOOD v. SAVAGE. 1. An objection to the introduction of certain written instruments in evidence, because the party objecting had no knowledge of them, is in effect an admission, that in all other respects they were competent testimony. 2. A purchase by a sheriff at his own sale, is not void, but voidable merely. It seems that the court, on motion of either of the parties, would set aside such a sale, and that creditors could have relief in equity. ERROR to the Circuit Court of Clarke. Trial of right of property, in which the defendant in error was claimant, and the plaintiffs in error plaintiffs, in an execution against one Robert B. Patterson. Creagh & Forwood v. Savage. Upon the trial it appeared that the claimant, as coroner, and in virtue of executions in his hands, at a sale of Patterson's property to satisfy such executions, purchased himself the property in dispute, and that the property remained in the possession of Patterson down to the levy of the plaintiff's executions.— That Patterson exercised all acts of ownership over it, hired an overseer for the plantation, used the corn, &c. The claimant offered in evidence a certain agreement between him and Savage, and a note, by which the latter was to pay him $580 for the rent of the plantation and the fixtures, and the hire of certain slaves. There was no evidence that the plaintiff's had any knowledge of the agreement or note, and they objected to the same being read to the jury; which objection was overruled. There was evidence that the plaintiffs were creditors of Patterson at the time of the sale and purchase by the claimant. The Court charged the jury, that if the sheriff or coroner purchase at his own sale, the purchase may be set aside by the creditor in a reasonable time, that such purchase was not absolutely void, but voidable merely; to which the plaintiff excepted. These matters are now assigned as error. HOPKINS, for the plaintiff in error, made thefollowing points : 1, The agreement and note offered in evidence were incompetent, as their execution was not proved. [4 Porter, 330.] 2. The coroner, in the sale of the slaves in virtue of the execution against Patterson, was the agent of the creditors as well as of the parties to the execution, and was incapable of purchasing the property which he himself sold. [Miles v, Goodsell, 5 Conn. 475; Ormond v. Faircloth, 2 Hayw. 336; Lazarus v. Bryson, 3 Binney, 58; Carter v. Harris, 4 Rand. 204; Saltmarsh, v. Beene, 6 Ala. 20; McGehee v. Lindsay, 8th Ala. ; Davine v. Fanning, 2 J. Chan. 259; Story on Agency, sec. 200 to 232; Br. Bank v. Collins, 7 Ala. 102; Dixon v. Sharp, 1 Marsh. 211; Stapp v. Toler, 3 Bibb,450.] He contended that the sale was absolutely void; and that no other decision could protect the rights of creditors. That it was conceded the purchase by the coroner was unlawful, and could not be enforced by him, and that such was his attitude here, as the trial of right of property was a mere substitute for the action of trespass. Creagh & Forwood v. Savage. HENLEY and PECK, contra.-1. A purchase by a trustee, or by one standing in a fiduciary character as an agent, &c. at his own sale, is not absolutely void, but voidable merely. [McLane v. Spence, 6 Ala. 897; Saltmarsh v. Beene, 4 Porter, 283; 1 Story's Eq. 317; Davone v. Fanning, 2 J. C. R. 252; Wormly v. Wormly, 8 Wheaton, 421; Hawley v. Cramer, 4 Cow. 718; Gallatin v. Cunningham, 8 Cow. 361; Hunter v. Atkins, 1 Coop. S. C.464; Prevost v. Gratz, Pet. C. C. R. 364.] 2. That such a purchase must be avoided by the cestui que trust, or if by creditors or other person, must be in a direct proceeding, having that for its object. [Long on Sales, 435, and cases above cited,] and until thus set aside, is good both at law and in equity. 3. That these rules apply fully to the executive officers of thelaw, and sustained by precisely the same reasoning as shown. by the cases cited. 4. In causes like the present, an adequate remedy may be had in the Circuit Court, from which the execution issued, by motion to set aside the sale. [Mobile Cotton Press v. Magee, 9 Porter, 692.] 5. Although a Court might not entertain a suit by a sheriff to recover property bought at his own sale, which is the predicament of the cases relied on by the opposite side, the rule is entirely different when he is in possession, and his title is consummated. ORMOND, J.-The first point made by the counsel for the plaintiff in error, is not, in our opinion, presented upon the record. It has been repeatedly held, that a party complaining of error in the judgment of the primary Court must present it distinctly upon the record, and that in doubtful cases every reasonable presumption and intendment will be made in favor of the judgment of the Court. This is a salutary and just rule, imposing no hardship whatever on the party supposing himself aggrieved, whilst the contrary doctrine would be productive of great mischiefs and would constantly lead to the reversal of judgments for supposed errors, which had not in fact been committed. If the objection here was that there was no proof of the execution of these instruments, the point should have been distinctly made in the Court below. But in addition to the want of a specific objection, such as is raised here, the record itself shows Creagh & Forwood v. Savage. what the true point intended to be raised was. The plaintiff had proved the possession by the defendant in execution of the property levied on, after the purchase by the claimant, down to the time of the levy by the plaintiffs To repel the presumption which the law makes in such a case, the note and agreement were offered by the claimant, to the introduction of which the plaintiffs objected, because they had no knowledge of them. This then is the precise point raised in the Court below, and is in effect an admission that in other respects these instruments were competent as testimony. We are clear in the opinion that the objection now made is not presented upon the record. It is conceded by the counsel for the defendant in error, that a sheriff cannot make a valid purchase at a sale made by himself, and the only question for our decision is what is the effect of such a purchase; is it an absolute nullity so that no title passes to the purchaser, and the property may be again levied on and sold as the property of the defendant in execution, or is it voidable merely, at the election of the cestui que trust or other interested party? The rule that a sheriff or other executive officer of the law appointed to fulfil its mandate shall not purchase at his own sale, is founded on the well known rule of law, prohibiting trustees and all others standing in that relation from purchasing at their own sale. The rule has been explained at length by this Court in Saltmarsh v. Beene, 4 Porter, 283; and we therefore content ourselves with merely stating it. The reason of the rule, is, not that such a purchase is necessarily fraudulent; it may be indeed beneficial to the cestui que trust at the time it is made, but it is a rule of policy, resting for support on enlarged views of the incompatibility, of one occupying at the same time, the inconsistent relations of seller, and purchaser; and the impossibility of showing in most cases the circumstances of fraud, or imposition, if they really existed, and thus to cut off all temptation to impropriety of conduct. For these reasons such sales, are set aside as a matter of course, upon a seasonable application to a Court of Equity, and a re-sale ordered. [Davoue v. Fanning, 2 Johns. C, 252; Ex parte Lacy, 6 Vesey, 626; Ex parte Hughes, id. 618, Ex parte Bennet, 10 Vesey, 385; Gallatian v. Cunningham, 8 Cow. 361.] This rule has been held applicable to purchases made by sheriffs at their own sales, and is assigned as the reason for the judg |