
    MILLIKEN’S APPEAL.
    .A. Court of Equity cannot appoint a receiver for a trust estate and direct the property to be delivered to him upon a preliminary hearing.
    Appeal from Common Pleas of Centre County. In Equity. No. 416, January Term, 1882.
    The opinion of the Court granting the injunction was as follows, per:
    Mayer, P. J.
    Clara V. Milliken, the plaintiff, was the owner of a large amount of real and personal estate, and on the 23d of April, 1881, executed and delivered to James Milliken, the defendant, a deed of trust, granting and conveying to him all of said real estate and personal property. By the provisions of said deed she divested herself of her entire estate, both real and personal, upon the trust set forth therein; that is to say, that the said trustee shall permit and suffer the said cestui que trust to have, hold, use and enjoy the said real estate, or any part thereof, during her natural lifetime, but in case she shall not choose to occupy the same, then the said trustee is to let the said real estate, and to manage, invest and keep invested the moneys and personal estate, rents and income, in mortgages, public stocks or loans, or in the purchase of real estate as the said trustee may deem prudent, but without the said trustee being liable personally or in his private estate for any loss which may happen to accrue for or by reason of any such investment, and to pay over to such cestui que trust, from time to time, the clear yearly income should the same be demanded.
    It is further provided, that in case the said Clara V. Milliken should at any time marry, and die leaving any child or children, or the issue of a child, surviving her, then and in that case that the said trustee shall and will grant and convey the said estate, both real and personal, to and for the use of such child or children of the said Clara as shall then have attained or shall thereafter attain the age of twenty-one years. And in case of the decease of the said Clara V. Milliken, unmarried, or married without leaving any lawful child or children, or lawful issue of such child or children as may be dead, thenee the said trustee shall and will grant and convey all the real estate inherited from her mother to the brothers' and sisters of her said mother, their heirs and assigns, and the remainder of said estate, both real and personal, shall be conveyed to the brothers and sisters of her father, their heirs and assigns — being Samuel Milliken, James Milliken, the defendant, and Marion L. Milliken.
    The deed further provides, that the said trustee, by and with the consent and approval of the said cestui que trust, may sell and dispose of said real estate, and the proceeds of such sale to be reinvested by said trustee and held upon the same trusts and for the same uses and purposes as are declared and expressed in said deed. And it provides, also, that the said deed may be revoked, altered and changed by the said cestui que trust by and with the consent of the said trustee.
    The plaintiff has filed her bill against the defendants, Jamés. Milliken and Robert Valentine, in which she prays that the said James Milliken be restrained by special injunction now, and perpetual hereafter, from selling, assigning, and transferring any of the securities, investments, or other personal property now in his possession or under his control, by virtue of said deed of trust, or in any manner meddling therewith. That Robert Valentine be restrained by special injunction from paying a note of six thousand dollars due to James Milliken, Feb. 4, 1882, being part of said personal estate. That a Receiver be appointed to receive and take possession of all the securities, moneys, and personal property now in the possession- and under the control of said James Milliken, under and by virtue of said deed of trust, and that he, the said James Milliken, be enjoined to deliver and pay over to the said Receiver all such securities, moneys, and personal property ; and that the Court decree a cancellation of said deed of - trust.
    The bill of the plaintiff-avers :
    “First. — That she is a citizen of the Commonwealth - of 'Pennsylvania ; that she was born in the borough of Belleforite on the 11th day of April, A. D., 1860 ; that her mother, who :Was a daughter of the late George Valentine, died on .or about the 12th day of June, 1855, when your oratrix was a little over five years and two months old.
    “Second. — That her father, the late M. T. Miliken, died on or about the 6th day of September, 1871, when this complainant was of the age of eleven years, four months and twenty-five days.
    “Third. — That her father had duly made and published his last will and testament, bearing date of the 21st day of the 9th month, A. D., 1870,' which was, after his death, duly probated on the 16th- day of September, 1871, and entered of record in Centre County, in will-book ‘C,’ page 466, etc, whereof he appointed her uncles, Samuel Milliken and Reuben B. Valentine, executors, and wherein he also appointed her said uncles guardians of your oratrix ; which said last will and testament is herewith printed in Appendix, marked Exhibit ‘A,’ to which she begs leave to refer and have taken as part of this bill.
    “Fourth. — That her said uncle, Reuben B. Valentine, died on or about the 20th day of November, 1871, two months and nineteen days after the death of her 'father, leaving the said Samuel Milliken sole surviving executor of her father’s will, and sole surviving -testamentary guardian of your oratrix.
    “Fifth. — That after her mother’s death, on the 12th day of June, 1865, she lived with her father during his lifetime, whose family was composed of his mother, Nancy M. Reed,-his sister, Marion L. Milliken, himself and your oratrix.
    “Sixth. — That after ' her father’s death she continued 'to have her home with her grandmother, the said Nancy ■ ‘M. Reed, and her aunt, the said Marion L. Milliken,■ until'-she arrived at the age of majority, and until her grandmother’s death in October. 1881, except only when she'w'as 'absent attending.school and some six months during the Sümhn'er of 1881, when on a tour through Europe.
    “Seventh. — That during the time she had her hbme with her said grandmother and aunt, her uncle, James' 'Milliken, and one of the said defendants, spent a considerable part1 of the time there as an inmate and mémber of'the family.
    
      “Eighth. — That during her minority her testamentary guardian, the said Samuel Milliken, her uncle, had sole charge and control other estate, and also superintended and directed her education in connection with her uncle, the said James Milliken.
    “Ninth — That during her minority she had personally very little knowledge or information as to the nature, kind and amount of her estate, nor of the provisions of her father’s will, the same never having been shown to her, nor the contents thereof made known to her by either of her said uncles, or any one else, and that she never until recently saw either the will or a copy thereof.
    “Tenth. — That a short time before, or about the time she •arrived at the age of twenty-one years, on the 11th day of April, 1881, her guardian and uncle, the said Samuel Milliken, informed her that he was unwilling to continue in the charge •and care of her property and estate, and advised her to get her uncle, James Milliken, to take the care and management thereof.”
    These averments are substantially admitted by defendant in his answer.
    The bill further charges that after she had been advised by her uncle, Samuel Milliken, to get her uncle, James Milliken, to take the care and management of her estate, she did request James Milliken to take the care and management of it as her agent; that at the solicitation and through the importunity of her uncle, James Milliken, she made a voyage to Europe, and shortly before starting on said voyage, and twelve days after she reached her majority, the said James Milliken employed counsel and had the deed of trust prepared ; that when the said deed of trust was prepared and ready for execution, he brought it to her and read it over once, and undertook to •explain its provisions ; that he stated that such a paper was necessary to provide for any contingency that might happen during her voyage to Europe and return, and that if she got back safely she could change, alter, or revoke it at pleasure ; that she did not understand the nature and effect of the deed lrom his reading and explanation of it, and that if she had understood it, she would not have executed it; that she believed what defendant had told her, that she was simply ■constituting him her agent, and that she was disposing of her property by will, providing for the contingency of her death before her return from Europe ; that she was not advised by •counsel, and only had the advice of her uncle, the said James Milliken; that before and after the execution of said deed, the .said trustee said she could revoke it any time, and was willing she should do so, until recently, when he refused to assent to its cancellation ; that the said deed was not recorded for more than eight months after its execution, and not until after she had made a demand for it, or a copy thereof; that she has never been shown a full statement of her personal estate, nor does she know of what it consists ; that the trustee has declined to answer her inquiries on the subject.
    These averments are verified by the affidavit of the plaintiff, and as to her averment that she did not understand the nature and effect of the paper she had executed, she is corroborated by the affidavit of her aunt, Mary B. J. Valentine.
    These latter averments of the bill are in the main denied by the defendant in his answer, which on this hearing is to be considered as an affidavit; Warren and Franklin Railroad Co., vs. Clarion Land and Improvement Co., 54 Pa. St., 28.
    The following averments'of the bill are established by the affidavits:
    That after her father’s death, and during her minority, the plaintiff lived with her grandmother, the mother of defendant, her aunt, a sister, and the defendant; that one of her uncles, the brother of defendant, was her testamentary guardian, who had charge of her estate, and that he, in connection with James Milliken, the defendant, superintended and directed her education ; that her estate was taken- charge of by her uncle as guardian, and that she had little knowledge of its character and amount; that the deed of trust was executed twelve days after attaining her majority, and just prior to. her starting for a voyage to Europe in company with James Milliken, the defendant; that the execution of the deed was procured by the advice of Samuel Milliken and the said James Milliken, the defendant, both uncles and beneficiaries under the deed ; that she did not have the. advice and assistance of legal counsel in regard to the provisions of said deed, but whatever explanations and advice she received were given by the trustee, James Milliken; and that on the happening of a certain contingency —the death of the plaintiff without issue — her uncles, Samuel Milliken and James Milliken, the trustee, would be large beneficiaries under said deed.
    The other material allegation that, by the execution of the deed, plaintiff believed she was constituting James Milliken her agent, and that she could revoke or alter at any time said deed, is denied in the affidavit of defendant.
    Is there sufficient in the allegations of the bill and the affidavits to justify the Court in granting present relief to the plaintiff? Ir may be conceded that the defendant sustained such a relation to the plaintiff that he could exert an influence over her. She had lived in his. mother’s family, of which defendant was an inmate, from infancy. Her mother had died when she was very young, and her father died when she was but eleven years old. Her estate and her education were under the charge and control of her uncle and guardian, Samuel Milliken, and the defendant; so that, to some extent, 'the defendant stood in loco parentis to the plaintiff. Under these circumstances, the principles upon -which a .court in equity acts are well stated in the case of Archer vs. Hudson, 7 Beaven, 451. A niece, two months after she came of age, and after her guardian had fully accounted to her, entered into a voluntary security for her uncle, by whom she had been brought up, and who was considered by the Court as standing ' in loco parentis. Lord Langdale, in delivering the opinion of ■ the Court, observed : “Nobody has ever asserted that there cannot be a pecuniary transaction between a parent and a child, the child being of age; but everybody will affirm in this Court, 'that if there be a pecuniary transaction between a parent and child just after the child attains the age of twenty-one years'and prior to what may be called a complete cmancipation, without any benefit moving to the child, the presumption is that an undue influence has been exercised ; and - that it is the duty and the business of the party who endeavors to maintain such transaction to show that that presumption is adequately rebutted.
    The same principal is stated by Justice Trunkey in Darling-ton’s Appeal, 5 Norris, 518. “Owing to the near connection between the parties in many relations, the transaction in itself. is considered so suspicious as to cast the burden of proof upon , the person who seeks to support it, to show that he has taken no advantage of his influence or knowledge, and that the arrangement'is fair and conscientious.”
    To the same effect is the case of Greenfield’s Estate 2, Harris, 506, in which Justice Bell, who delivered the opinion of the. Court, says, in speaking of transactions between persons standing in the situation of quasi guardians or confidential advisers “Other authorities, where the transaction is one of contract and sale, conceding that it may not be absolutely void, ipso facto, throw upon the agent the burden of establishing its perfect fairness and adequacy, and that it was the deliberate act of the confiding party, after being fully informed of his rights, interests, and duties, and put upon his guard against even, the suggestions of his own inclinations.”
    We cite these cases to show that the burden of proof is thrown upon the defendant of sustaining the validity of this deed. This case can only be determined on a final hearing before the Master, when all the evidence has been submitted. We will not undertake in this preliminary hearing to pass upon the validity of this deed of trust. That will have to be determined when the case is heard before a Master, and comes into court for a final decree. We only decide now that, under the affidavits presented, we think it is a case calling for our interposition until the rights of the parties can be finally settled.
    And now, March, 14th, 1882, this cause came on to be heard and was argued by counsel, and thereupon, upon consideration. thereof it is ordered-, adjudged and decreed that the injunction heretofore granted be continued.
    
      And it is further ordered, adjudged and decreed that John P. Harris, of Bellefonté, Pa., be appointed Receiver, with full power and authority to receive and take possession of all the securities, moneys, and personal properties now in the possession and under the control of the said defendant, James Milliken, under and by virtue of said deed of trust, and to take possession; care, control, and management of said real estate, conveyed to said James Milliken, by said deed of trust, until final hearing. The said Receiver before entering upon the duties of his appointment to give a bond in the sum of eighty thousand dollars, with two sufficient sureties, to be approved by one of the law Judges of the Court, conditioned for the faithful care and management and accounting of said moneys, securities, and personal property, and rents and income of said real estate. Said bond to be filed' with the Clerk of the Court.
    And it is further ordered that the said James Milliken deliver and pay over to such Receiver all securities, moneys, and personal property which he holds and has in his possession, or under his control, under and by virtue of said deed of trust.
    James Milliken then appealed, assigning three errors : 1st, in continuing the injunction; 2nd, in appointing a Receiver; 3rd, in ordering James Milliken to transfer the trust property to the receiver.
    Messrs. F. C. Brewster, S. Linn, Beaver & Gepiiart, A. O. Furst and D. W. Woods, for plaintiff in error,
    argued that the Court below had no right to make a mandatory order in this stage of the proceeding; Audenreid vs. Phila. & R. R. R. Co., 68 Pa. 370; R. R. Co. vs. Reno, 53 Pa. 224; Coal Co.’s Appeal. 54 Pa. 183; Brown’s Appeal, 62 Pa. 17; Coal Co. vs. Northern Central R. R. Co., 4 Brewster 158; Schlecht’s Appeal, 60 Pa. 172; Chicago Oil Co. vs. Petreleum Co., 57 Pa. 83.
    Messrs. Hoy and Blanchard, contra,
    cited, Grey vs. Ohio- & Pa. R. R. Co., 1 Gr. 412; Roberts vs. Anderson, 2 Johns., Ch. 202; Schlecht’s Appeal, 60 Pa. 173.
   The Supreme Court reversed the decree of the Common Pleas on April 10th, 1882 in the following opinion:

Per Curiam :

This being an appeal from a preliminary injunction.

Decree reversed, and Injunction dissolved at the costs of the appellee.  