The letter to Mr. Bartlett was a valid offer; and being accepted and acted upon by the parties, it constituted a contract by which either a trust or a partnership was created. And whether a trust or a partnership, Lobdell became accountable for the proceeds of the sales, and this liability devolved upon his administrators.

If the property has been alienated, it having been done ir pursuance of the arrangements between the parties, the title was vested in the purchasers, discharged of the trust; and therefore, if all the property has been alienated, no specific performance. in the way of a transfer of real estate can be decreed.

If the property bought and held under the agreement has been sold, and mortgages taken back by Lobdell to secure the *612whole or part of the purchase money, such mortgages constitute a part of the trust or partnership fund, and must be deemed a part of the trust property in which the plaintiff has a right and interest, the extent of which is to be determined by taking an account.

The case must be referred. to a master to state an account. Lobdell’s estate is to be allowed interest on the half of the purchase money advanced by him for William H. Montague, and is to be allowed for all other moneys advanced and for expenses.

Whether the plaintiff can have a preference over other creditors depends on the question whether the specific trust property or mortgages taken to secure the purchase money on sales thereof remain, or whether the balance, if any, due the plaintiff results only in a sum which is a debt due from Lobdell’s estate. This question will properly arise when the master reports; all other questions to be reserved till the coming in of the report. -

Ordered accordingly.