
    Nagle’s Appeal. [Nagle’s Estate.]
    Where a husband, in consideration of a fixed sum, executed an assignment of his interest in his wife’s estate, to the executor named in the will of his wife made before her marriage and not republished, in trust for the purposes designated in the will and in a proposed codicil which was not executed, the relation between the husband and the executor, at the date of the assignment, was not that of cestui que trust and trustee. The assignment was an absolute conveyance, in trust, and was irrevocable.
    Feb. 21, 1889.
    Appeal, No. 213, Jan. T. 1888, from a decree of O. C. Lebanon Co., dismissing exceptions of J. A. M. Nagle to an auditor’s report on the account of Henry E. Fisher, administrator of Clementina L. Nagle, deceased, who was the wife of exceptant. Sterrett and Mitchell, JJ., absent.
    The following facts were found by the auditor, Howard C. Shirk, Esq.:
    Clementina L. Nagle died on Feb. 18, 1880, without leaving issue to survive her, but leaving her husband John A. M. Nagle to survive her. On Sept. 18, 1878, being then a single woman, she made her will, leaving most of her property for a charitable object. On Nov. 6, 1879, she married Nagle. There was no proof of a republication of her will subsequent to her marriage.
    On the day of her death, her husband, Mr. Nagle, called on Mr. Boyer, an attorney at law, at her instance, and requested him to come to Annville to write a codicil to her will. Mr. Boyer went to her house for that purpose, but shortly after his arrival, and before he was able to prepare the paper, she died.
    Shortly after Mrs. Nagle’s death, the foregoing will was offered for probate. Mr. Nagle sought the advice of Josiah Funck, Esq., an attorney at law, who advised him that the will could not stand and that he was entitled to her entire estate. Under the advice of counsel, he then filed a caveat against the probate of the will, and it seems some proceedings were then had before the register of wills, the exact nature of which the auditor reported he could not ascertain, as the record of the proceedings could not be found and were therefore not produced in evidence. Mr. Nagle was represented in these proceedings by Mr. Funck, and Mr. Fisher was represented by Mr. Boyer. From the evidence, it appears that Mr. Funck claimed for his client the entire estate, and that, in the papers filed, Mr. Nagle protested against and alleged that the will was invalid by reason of the marriage of Clementina subsequently to its execution. Mr. Boyer contended that the will had been republished by directions given after her marriage for the preparation of a codicil.
    During the pendency of these proceedings several discussions were had between Mr. Nagle and Mr. Fisher, and the matters were adjusted and settled between them, and, on March 19, 1880, Mr. Nagle executed, acknowledged and delivered to Mr. Fisher the following instrument in writing.
    “ Whereas, Clementina Ulrich, afterward intermarried with John A. M. Nagle, before her marriage made her last will and testament, bearing date tbe 18th day of September, 1878, wherein and whereby she made certain bequests, and whereas afterward, to wit, on the 18th day of February, A. D. 1880, the said dementa L. Nagle, among other things, gave directions, for a codicil to her said last will and testament, which directions (the memoranda thereof) are in the possession of Mrs. Lizzie M. George. And, whereas, it is the desire of the said Nagle and the friends of the said Clemmie L. Nagle that her will and desire, as contained in the said will and the codicil thereto — in memorandum — should be fully carried out. Now, know all men by these presents, that I, John A. M. Nagle, in consideration of the premises, and in consideration of a promise in writing to me delivered at the execution hereof for the payment to me of a specific sum out of the estate of the said Clemmie L. Nagle, and the further consideration of one dollar to me in hand paid by Henry E. Fisher at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, do hereby agree to and by these presents, do withdraw the caveat by myself entered against the probate of the will of the said Clemmie L. Ulrich; and do also agree that letters of administration on the estate of the said Clemmie L. Nagle shall be issued by the Kegister of Wills of Lebanon county to Henry E. Fisher, as I do hereby renounce my right to administration thereon, and agree and direct that the said Henry E.. Fisher, as such administrator, shall distribute and pay out the surplus remaining of the said estate, after the payment of debts, funeral expenses and the amount as above mentioned to be paid to me, in accordance with the directions contained in the said will and codicil in memorandum of the said Clemmie L. Nagle, late Ulrich, the amount to be paid to me, to be in lieu of the amount bequeathed to me, or intended to be bequeathed to me, in the said codicil, as also of the gold watch and chain, if no provision is made therefor in the written promise hereinbefore mentioned. And for the purpose of carrying into effect the said agreement and understanding herein-before contained, I do hereby assign, transfer and set over to the said Henry E. Fisher, in trust and for the purposes' aforesaid, all my property, estate, right, title and interest in and to the entire estate of the said Clementina L. Nagle, after, at and before the time of her death, and vest in him, in trust and for the purposes aforesaid, any and rights which I may, might, could or would have, in the whole or any portion of the estate aforesaid, subject, however, to the amount to be paid to me in consideration hereof as aforesaid. Witness my hand and seal, at Annville, Pa., this 19th day of March, A. D. 1880.”
    On April 18, 1880, the inventory and appraisement of the estate of the decedent, which was composed wholly of personalty, was filed in the register’s office, amounting to $5,713.56. The estate was mainly made up of a judgment of $3,481.30, reduced by a credit of $681.30, which had not been allowed in inventory, to $2,800, of the decedent’s interest in a dower not due at decedent’s death, appraised at $1,146.76, and of a life insurance policy of $3,000, appraised at $1,000, upon the life of Rebecca Ulrich, who was living at the decedent’s death and who died a number of years thereafter.
    On May 20, 1880, Nagle executed, acknowledged and delivered'to Fisher a release, in which he acknowledged the receipt of $800 and a gold watch and chain as a consideration for his interest in his wife’s estate.
    The auditor further reported :
    “ Tour auditor begs leave to report that counsel for Mr. Nagle requested your auditor to find as facts:
    “ 1. That Nagle was never informed of the value of the estate of his wife by Fisher, and that there is no evidence to show that he knew it.
    “ 2. That Nagle executed the papers dated March 19, 1880, and May 20, 1880, respectively, while believing that the codicil had been duly executed by his wife, which belief was based upon the statement made by Fisher to him.
    “As to the first proposition, your auditor finds that there is no evidence to show that Fisher ever informed Nagle of the value of his wife’s estate, and that there is no evidence to show that either Nagle or Fisher knew or did not know the value of the estate at the time of the execution of the writing of March 19, 1880.
    “As to the second proposition, your auditor cannot find as requested. From the evidence of Mr. Fisher, the recitals contained in the writings of March 19, 1880, and May 20, 1880, which were read and explained to Nagle, and, from all the evidence in the ease, your auditor is of the opinion, and therefore finds as a fact, that Nagle knew, at the time he executed these writings, that the codicil had not been executed.
    “ The controversy, in your auditor’s opinion, must mainly turn upon the character and effect of these two writings of March 19, 1880, and May 20, 1880, respectively.
    “It is contended by counsel for Mr. Nagle:
    “ 1. That the relation between Fisher and Nagle was that of trustee and cestue que trust respectively, by reason of which relation the burden of proof was upon Fisher to show the bona fides of the transaction, and that he made the fullest disclosures of the subject matter to Nagle, and that the papers, not being supported by such proof, must fall.
    “ 2. That the consideration having been payable, and paid out of the estate of the decedent, the whole of which belonged to him, is not such an one as will support the papers, and that they must therefore fall.
    “ 3. That the papers must fall because Nagle was induced to sign them while believing that the codicil had been duly executed by his wife, which belief was based upon statements made by Fisher to him.
    “ 4. That, in any event, Nagle can now reclaim the estate before it has been paid over to the beneficiaries.
    
      “ Tbe relation existing between Fisher and Nagle, at the time of the execution of the instrument of writing of March 19, 1880, was not that of trustee and cestue que trust, respectively; the will of the testatrix had been revoked, and made inoperative by her marriage subsequently to its execution; this relation was first created by this instrument of writing.
    “ This view naturally simplifies the matters to be considered. This is not the case of a purchase by a trustee from his cestue que trust, nor of a settlement between trustee and cestue que trust.
    “ The circumstances surrounding the execution of this writing are not suspicious; its execution was not influenced by a person standing in a fiduciary relation; Nagle did not depend on Fisher’s advice, but had sought and obtained the advice of eminent counsel who had advised him of his legal rights; the transactions had between them were as between strangers; and the inducements for the execution of this writing was the desire of Nagle to carry out the wishes of his deceased wife as expressed in the foregoing will and ‘ codicil in memorandum.’
    “It is presumed that Nagle was acquainted with the contents of this writing, and, as a matter of fact, it was read and explained to him before its execution, when he stated that he understood it.
    “ It must, for the reasons above given, therefore, stand, unless impeached on the ground of fraud, circumvention or mistake, none of which have been established. By its terms, he parted with the entire estate of his deceased wife, with the exception of eight hundred dollars (the specific sum therein mentioned), and the price of a gold watch and chain, and conveyed the same, by words in presentí, to Fisher in trust for the beneficiaries therein mentioned, thus putting the same beyond his control or recall. It is not merely a simple direction to a trustee to pay to beneficiaries at a future time, but is a solemn transfer which took effect immediately, and its terms must control the distribution of this estate. Greenfield’s Est., 14 Pa. 489 ; Oressman’s Ap., 42 Pa. 141; Painter’s Est., 42 Pa. 156.
    “It cannot be pretended that any fraud was practiced upon Nagle by Fisher, after the execution of the paper of March 19,1880. All duties which the latter owed the former by the terms of this paper were honestly performed. He paid to him the specific sum provided to be paid, to wit: the sum of eight hundred dollars, for which Nagle executed and delivered the above-mentioned instrument of writing of May 20, 1880, and thereby released any and all right to any portion of this estate, except the price of the gold watch and chain, which was afterward agreed upon and paid.
    “ The estate in the hands of the accountant will therefore have to be distributed without regard to the claim of Mr. Nagle.”
    O. H. Henry was called to prove the signature of Nagle to the release. He was then asked on cross-examination, and testified, as to the inducements to signing the release, as stated by Nagle, which were false representations by Fisher. The auditor afterwards held the testimony incompetent, because, 1, not proper cross-examination, and, 2, it was hearsay.
    
      Nagle filed exceptions alleging, inter alia, that the auditor erred, 1, in not distributing to nim the whole of the fund [5] j 5, in finding that the relation between Fisher and Nagle, at the time of the execution of the instrument of March 19, 1880, ‘was not that of trustee and cestue que trust respectively ’ [1]; 6, in finding that the transactions had between- Fisher and Nagle ‘were as between strangers ’ [2] ; 8, in finding that the execution of this instrument ‘was not influenced by a person standing in a fiduciary relation ’ [2]; 10, in excluding the testimony of O. H. Henry adduced upon cross-examination [4]; 11, in finding ‘that Nagle did not depend on Fisher’s advice’ [2].
    The court dismissed the exceptions in the following opinion, by McPherson, J.:
    “ When Nagle executed the assignment of March 19, Fisher was not his trustee, and owed him none of the duties which spring-from that relation. The facts are, that Nagle then knew of his wife’s will made before her marriage, of her wish to make the ‘ codicil ’ just before she .died, of her failure to execute it, some part at least of its intended provisions, of his own legal right to the whole estate if the will had not been republished after marriage, and that this matter of republication was in dispute. Whether he also knew how much the estate was worth does not appear, but he could easily have learned ; Fisher was not bound to inform him, even if at that time Fisher knew' it himself. [Without being tricked or misled so far as the evidence shows, but acting freely and declaring a desire to carry out his wife’s wishes although they were not legally binding, Nagle agreed to take only a part of that which appeared to-be wholly his, and thereupon assigned all the rest to Fisher in trust for the uses appearing in his wife’s will and proposed codicil.]
    “ This assignment is not a mere promise to convey hereafter, but, in express terms, an actual, present conveyance. Nothing remains to be done to pass the title. The assignment was executed and delivered to the trustee, who, in a short time, came into possession of the property specified. Nagle received all he asked, ratified the conveyance two months afterward, when the inventory of the estate had been on file for a month, and only now denies that he is bound by what he has done, or that he has finally given up his right to have the whole of the property. We cannot sustain this position; Acting voluntarily, with full knowledge or means of knowledge of the facts, and without being misled by fraud, he created a trust in personal property by fitting, presently operating, written words which passed away his title. We think it is now beyond his reach, and that he has no longer any interest in his wife’s estate.
    “This is, in substance, a mere restatement of the auditor’s view, and we will add nothing more than our entire concurrence in his findings of fact and clearly-stated conclusions of law.
    “ Exceptions dismissed, report confirmed and distribution decreed in accordance therewith.”
    
      The assignments of error specified, 1, 2, 4, 5, the action of the court in not sustaining the above exceptions, quoting them; 3, the portion of the opinion enclosed within brackets, quoting it; and, 6, the action of the court in confirming the auditor’s report.
    
      George B. Shock, with him Thos. H. Capp, for appellant.
    If, at the time of the filing of the will, March 3,1880, Fisher acted as the representative of the estate, knowing he was without lawful authority, he became an executor de son tort, at least. And then, on March 19, 1880, the date of the agreement, he was in truth and in fact a trustee for Nagle, and the relation of trustee and cestue que trust existed. He was for all purposes a trustee, for a protest served upon him prior to the grant of letters would have been a proper service and sufficient to charge the estate. Shoenberger, Exr., v. Lancaster Savings Institution, 28 Pa. 459. And, being a trustee, he could not have held the estate for any but the legal heir. In a suit against him for the assets of the estate, he would be entitled to all proper payments made by him out of such assets. Saam v. Saam, 4 Watts, 432. Yery slight circumstances of intermeddling with the goods of a decedent will constitute a person executor de son tort. 1 Wms. Exr., page 297.
    He is estopped from denying his former executorship. Walker v. May, 2 Hill, Ch. R. 22; 1 Wms. Exr., 6th ed., bottom page 273, note (P). Fisher assumed to act in behalf of the estate of the deceased in, dealing with the only heir, and negotiating to secure from him a release of his right to the estate, and he is now bound by his acts to the same extent as if he had received his appointment as administrator immediately after the death of the deceased. Alvord v. Marsh, 12 Allen, 603; Priest v. Watkins, 2 Hill, N. Y. 225, note (ii.); 2 Saunders, 265.
    He should therefore be required to show that he dealt fairly with the cestue que trust; that he made the fullest disclosures as to the nature and character of his rights; that no fraud was practised upon him and no facts misrepresented, misstated or concealed, nor inducements held out to him to execute these papers ? He should be required to show that the consideration paid was fair and adequate; that the releasor was of an age and business capacity properly to understand the nature and result of his act; and that he was not driven to execute these releases by his necessities. Schoch’s Ap., 33 Pa. 351; Shartel’s Ap., 64 Pa. 25; Spencer v. Newbold, 80 Pa. 332; Wistar’s Ap., 54 Pa. 62; Greenfield’s Est., 14 Pa. 502; Parshall’s Ap., 65 Pa. 224; Worrall’s Ap., 1 Cent. R. 201; Diller v. Brubaker, 52 Pa. 505; Miskey’s Ap., 3 Penny. 408; 1 Wharton on Contracts, § 254.
    The use made of the alleged memorandum, under the circumstances, for it was never shown to Nagle, but carefully kept concealed, was an actual fraud. 1 Perry on Trust, § 169 ; 1 Wharton’s Contracts, § 232, et seq; 2 Story’s Eq., § 187.
    Henry’s testimony was part of the res gestae. Wharton’s Ev., §§ 258,. 262; Greenleaf’s Ev., §§ 108-114; Rees v. Livingston, 41 Pa. 113.
    
      "Will the court hold that Nagle’s owu money can form the consideration to support this transaction? These papers stand for nothing save as a receipt for the money actually paid under them. Dunn v. Building Asso., 2 Penny. 109.
    Taking the facts of this case, as shown by the testimony of Nagle, Fisher and Henry, in connection with the codicil, the suspicious recitals and the price paid, the evidences of fraud become so overwhelming as to compel a reversal of the court below. Wills’s Ap., 22 Pa. 333; Witman’s Ap., 28 Pa. 315; 2 Wharton’s Contracts, § 518.
    
      Frank E. Meily, for appellee.
    The principles which govern this ease are clearly stated in the authorities cited by the auditor, and from which we quote.
    Nagle is estopped by the admissions contained in the assignment of March 19, 1880. Penrose v. Griffith, 4 Binn. 231; Garwood v. Dennis, 4 Binn. 313; Carver v. Jackson, 4 Peters, 1; Bigelow on Estoppel, Chap. 10.
    Feb. 21, 1889.
   Per Curiam,

Decree affirmed.  