
    [Philadelphia,
    April 4th, 1836.]
    DELAMATER’S ESTATE.
    APPEAL.
    1. A testator after several legacies of bank stock and other stock and money, concluded his will as follows : “ The remainder of my worldly substance, consisting of furniture, bedding, carpets, china, kitchen furniture,looking glasses,and crockery, &c. &c. I give to my two daughters to be divided between them, part of which they are at liberty to sell, if they shall not need them. These with allmoney of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give'to my two daughters, hoping that they may live to enjoy much contentment and happiness.” • The testator, bad several shares of bank stock and other stock, not specifically bequeathed : Held, that they did not pass under the above bequest.
    2. A testator having two daughters, A. and B..and no other children; and having certain shares of bank stock, bequeathed one-half of the number of shares to his daughter A. who was at that time unmarried; but said nothing respecting the remaining shares. He gave several legacies of other stocks and effects to A. and B., and appointed his nephew C.,' his son-in-law’ D« (husband of B.) and his two daughters A. and B. to be executors. About á month after the probate of the will, A. by ah instrument (not actually sealed) reciting that the omitted shares were believed to have been intended by her father for ner sister B., granted, assigned, &c. the said shares to B. for her sole and absolute property, and requested the executors of her father to transfer them to her. The shares were accordingly transferred by the executors to B.; and in the settlement of their accounts, they'claimed credit for such transfer: Held, on exception to such credit, that in the absence of evidence of mistake or direct fraud or imposition, there was nothing in the relation in which C., the executor, or his wife B. stood towards A., to require the Court to rescind the assignment and transfer.
    This was an appeal from a decree of the Orphans’ Court for the County of Philadelphia, in the matter of the accounts of M. W. Pike and Jacob Dunton, executors of the will of John Delamater, deceased.
    , The circumstances which gave rise to the only question in controversy in this case, are as follows:—
    John Delamater of the City of Philadelphia, died about the 10th of December, 1829, leaving two children only, viz. Ann, and Caroline, the wife of Jacob Dunton; and leaving also a will dated the 25th of July, 1829, which it is deemed necessary to insert entire, as follows: — ■
    “ The last Will and Testament of John Delamater, taken by himself, viz:
    In the name of Cod, amen. I, John Delamater, formerly of the City of New York, now of the City of Philadelphia, in the State ot Pennsylvania, being in good health and sound disposing memory and certainty of death, Do make and publish my last Will and Testament in manner and form following, to say,
    
      First. I do order that all my just debts and funeral charges be paid.
    Item. My will is that my small farm at White Plains, West Chester County, in the state of New York, if not sold during my life, shall be sold soon after my death by my executors hereinafter named, for the greatest and best price that can or may reasonably be had or gotten for the same; and they my said executors, to the purchaser or purchasers thereof, his, her or their heirs and assigns forever, a good and sufficient deed or deeds of conveyance in fee simple, deducting the cost and expenses attending the said sale, and sign the said deed or deeds, if required, (free from every incumbrance.)
    Item. I give to my niece, widow Nancy Purdy, the amount of one-third of the whole amount of the sales of the White Plains farm, be it more or less, viz: One-third of the whole amount of sales to my niece Jennett Pike, be it more or less; and one-third of the whole amount of the sales of the White Plains farm to my nephew, Marinus W. Pike, be the same more or less.
    And in addition to the aforesaid legacies, I give and bequeath to my niece, widow Nancy Purdy, four shares of the capital stock in the Manhattan Bank, New York, with their advances and dividends due thereon at the time of my death; the subscription to this Bank is fifty dollars per share.
    And to my niece, Jennett Pike, in addition to her former legacy, one share in the capital stock of the Bank of New York, subscription five hundred dollars per share, with its advances and dividends that may be due thereon.
    And to my nephew, Marinus W. Pike, in addition to his former legacy, four shares in the capital stock of the Manhattan Bank, New York, subscription fifty dollars per share, with their advances and dividends.
    The stock on the farm at White Plains is to be considered as the property of Jennett Pike, with every other article of mine at the Plains, is to be considered as her property.
    If the White Plains property is sold previous to my death, it Is my intention of making the same distribution of the amount of sales that will be done if sold after my death: and if either of my nieces should die previous to my death, my will is that their proportion shall be equally divided among their children or their nearest kindred. I trust that my executors will aid and assist my two nieces in putting out their little money that it may prove productive.
    Item. I give to James S. Caldwell, in trust for my grandson, Lewis John Caldwell, four shares in the capital stock of the New York Manhattan Bank, with their advances and dividends. If Lewis should die in a state of infancy, then those four bank shares are to become the property of his sister, Eliza G. Caldwell.
    Item. I give to my son-in-law, Jacob Dunton, in trust for my grandson, Edward T. Dunton, four shares in the New York Man hatlan Bank, with their advances and dividends; and if the aforesaid Edward T. Dunton should die in a state of infancy, then the four bank shares is to be considered ,the property of his brother Albert Dunton.
    Item. I give to my kinswoman, Mrs. Mary Wood, the sum of fifty dollars, if she should be living at my death.
    Item. I give to my hired woman Nancy McNeil, the sum of fifty dollars, if she should be living in my family at the time of my death. These legacies are to be paid soon after my death out of any loose money of mine that may remain in bank, or may come in after my death. , ' •
    Item. I give and bequeath to my dear daughter Ann Delámater, ner heirs, administrators, or assigns and executors, my house and lot on the west side of Delaware Eighth Street, Philadelphia, situate between Mulberry and Cherry Streets, free of every incumbrance; (she has continued with me until the present time and shared with me in my many -troubles) — taxes to be paid by her.
    Item. I give to my aforesaid daughter, Ann Delamater, one equal moiety of my house and lot in Fulton Street, New York, (free from every incumbrance,) the other moiety is to be considered as the property of her sister, Caroline Dunton, their respective heirs, administrators and assigns, (share and share alike,) as tenants in common, and not as joint tenants.
    Item. I give and bequeath to my daughter, Ann Delamáter, one ■ Springsbury lot of ground, and to her heirs, executors, administrators and assigns, situate corner of Schuylkill Third and Hamilton Streets, (directly opposite James Caldwell’s house,) one hundred and twenty-five feet in Hamilton Street, .along Third Street to the Canal, 125 feet on the rear.
    Item. I give to my daughter Ann Delamater, forty shares in the Bank of the United States, with their advances and dividends, (sub- ‘ scription to this bank one hundred dollars per share;) likewise three shares in the capital stock of the Bank of Pennsylvania, with their advances and dividends — subscription to this stock four hundred dollars per share.
    Item. I further' give to 'my aforesaid daughter Ann ten shares in the Germantown and Perkiomen Turnpike Co. — subscription to this stock one hundred dollars per share — (it is now under par.) Likewise thirty-five shares in the Market Street Permanent Bridge Co. —subscription to this stock is ten dollars per share: whole'amount of subscription three hundred and fifty dollars. ^My wish is that none of the above mentioned stock should be parted with, but content with the dividends as they may grow due.)
    To my daughter, Ann Delamater,.! give my 'large folio family Bible, my own portrait, and all other pictures in the back parlour, and all my plate and plated ware, of too insignificant value to be divided, (with every other article she may claim as her property.)
    
      Item. I give and bequeath to my dear daughter Caroline Dunton, wife of Jacob Dunton, Jr. her heirs, executors and assigns for ever,one moiety of my house and lot of ground in Fulton Street, New York, with her. sister, Ann Delamater, share and share alike, free from every incumbrance, as tenants in common, and not as joint tenants. (This property is under rent to Nathaniel Bunce at 600 dollars per annum.) The taxes must be paid regular.
    Item. I likewise give to my aforesaid daughter, Caroline Dunton, one certificate of the debt of the United States, amount one thousand dollars, interest 4| per cent, paid quarterly- at the United States Bank-^the principal of this debt will be paid off'in a few years.
    To my aforesaid daughter, her he'irs, executors and assigns, one Springsbury lot of ground, situate corner of Schuylkill Fourth Street and Hamilton Street, 125 feet on Hamilton Street, and runs down Fourth Street midway, and back on James Caldwell’s lot' of the same width. Taxes must be paid annually on this lot.. This lot will be valuable in time.
    I give to my daughter, Caroline Dunton, sixteen shares in the Frankford and Bristol Turnpike Co. — cost of subscription one hundred dollars per share. This stock is under par. Dividend declared early in May and November.
    Item. I give to my daughter, Caroline Dunton, in trust for her son Edward T. Dunton, my gold watch, &c. &c. to be given to him when he Is of age to take care of it. If he. should die in infancy, it is to be the property of his brother, Albert Dunton.
    Item. I give to my daughter, Caroline Dunton, all my wearing apparel of every description, both linen and woollen, &c. &c. (I Should wish of my clothing sold they may be of service to her children.) I likewise give her my second size family Bible, it contains the family register. I likewise give her the large portrait of Gen. Washington, with all the pictures belonging to me in the back par-lour', the old family clock, of but little value but as an ornament.
    Item. I give to my daughters, Ann and Caroline, my family pew in the south gallery of the Second Presbyterian Church, Arch Street; this pew cost 110 dollars; the pew rent paid half yearly, at sixteen dollars per annum..
    Item. My will is that my executors hereafter named, pay or cause'to be paid to each of my nieces, widow Nancy Purdy and Jennett Pike, soon after my death, out of any money of mine that may be in bank, to each the sum of twenty-five dollars, taking a receipt for the same.
    The remainder of my worldly substance, consisting of furniture, bedding, carpet, china, kitchen furniture, looking-glasses, and crockery, &c. &c. I give to my two daughters, Ann Delamater and Caroline Dunton, to be divided between them, part of which they are at liberty to sell if they should not-need them. These with all moneys of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give to my two daughters, Ann arid Caroline, hoping that they may live to enjoy much contentment and happiness.
    . The property bequeathed to my heirs is, to them, their heirs, executors, administrators, or assigns forever, free of all incumbrances.
    And lastly,Y do nominate and appoint my nephew, Marinus W. Pike, my son-in-law, Jacob Dunton, Jr. to be executors, and my two daughters, Ann Delamater and Caroline Dunton, executrixes of this my last will and testament, hereby revoking all others by me at any time heretofore made. I do declare this only to contain my last will and testament.”
    The will was proved on the 14th of December, 1829, and letters testamentary were granted on the same day to the two executors, Dunton and Pike.
    At the date of this will and at the period of the death of the testator, he was possessed of the following stock, which was not'mentioned in the will, viz.
    40 Shares in the Bank of the United States.
    3 Shares in the Bank of Pennsylvania.
    '22 Shares in the Manhattan Bank of New York;
    with respect to which, he of course died intestate, unless they are to be considered as passing under the residuary clause of the will.
    On the 18th of January, 1830., Ann Delamater, executed the following instrument:
    “ Know all men by these Presents, That I, Ann Delamater, of the City of Philadelphia, one of the daughters of John Delamater, deceased, have granted, assigned, bargained and sold, and hereby do grant, assign, bargain and sell unto my sister Caroline Dunton, all my right, title, interest and claim of, in and to forty shares in the capital stock of the Bank of the United States, with their advances and dividends — and three shares in the capital stock of the Bank of Pennsylvania, with their advances and dividends — which forty-three shares are not mentioned in the last will and testament of the said John Delamater, but are believed by me to have been intended by bim for my said sister Caroline Dunton, inasmuch as he bequeaths a similar number of shares in each of those banks to me, and takes no ‘notice of the other half of them which belonged to him. • And, I do request that the executors of my said father, will transfer the said forty shares of the Bank of the United States, and three shares of Bank of Pennsylvania stock to my said sister, or to any person for her use whom she may designate, as and for her sole and absolute property, as if the same had been specifically bequeathed to her and not omitted in the said will. Witness my hand and seal this eighteenth day of January one thousand eight hundred and thirty.
    Ann Delamater.”
    Signed, sealed and delivered in the presence of us,
    Wm. Stevenson, Jr.
    John A. Elkinton.”)
    
    In compliance with the directions of this instrument, the two acting executors, Mr. Pike and Mr. Dunton, transferred the 43 shares on the 21st of January, 1830, to Caroline Dunton.
    On the 29th of December, 1830, Dunton the executor, settled an account in the Register’s office, in which among other matters he claimed credit for the 43 shares transferred to his wife. This account was headed with the names of both executors, but -it was sworn to by Dunton alone.
    In the Orphans’ Court, exception was taken to this credit by John A. Elkinton, who had married Ann Delamater; and the case was referred to an auditor, who, after hearing the evidence, and the arguments of counsel, reported that the transfer of the stock was made under sufficient authority, and that the account as settled was correct. Exceptions were made to the report, which however, was confirmed by the Orphans’ Court after argument on the 27th of October, 1835 ; whereupon an appeal was taken to this Court.
    It was agreed by the counsel that the auditor’s notes of the testimony should be received, in lieu of taking depositions de novo, and they were accordingly annexed to the record.
    Mr. Pike, the co-executor, testified as follows:
    “ I was present when Miss Delamater signed the instrument respecting stock. ■ To the best of my recollection, the company consisted of Dr. Elkinton. First time I saw him. Mr. Stevenson. The other company I can’t recollect. Think Mr. Dunton was present and Ann Delamater. I think Mr. Dunton had the paper in his possession down stairs. It was signed up stairs in the back parlour. Dr. Elkinton, Mr. Stevenson and three or four friends from Princeton- were present. I can’t particularly mention the conversation. It was down in the kitchen that I first saw them. As respects any particular conversation I can’t speak positively. Previous to the paper being signed the circumstances were not very agreeable. I can’t say particularly what the circumstances were. There was no threatening language. He told Mrs. Dunton something like he did not think it right the house should be kept open, though the house was her own. He signified about paying attention to company, when she should be attending to the business he came after. I can’t say particularly whether he read the paper to her. He did not tell her she must sign it. I did not see the paper before it was brought that night. I don’t think I did. If I recollect right I went past my house to Ann’s with Mr. and Mrs. Dunton. .A little misunderstanding took place. I wmn’t say for certain if Mr. Dunton read the paper that night. Unpleasant situation. Two children disputing. I viewed the visit of Mr. and Mrs. Dunton to be for the transfer of stock. I went down with Mr. Dunton to Mr. IngersoII, as respects a correct way of doing business according to the will. ' I don’t know 'who drew up the instrument. A few weeks ago I called on Mr. Dunton; he said he could prove by Mr. IngersoII that I knew all about it, when I was at her house. Then he said they were pumping me. If I-was ever consulted about the paper it must have been through the influence of Mr. IngersoII, as connected with other business. It may have been. I stood as it were a thorn between the two. I riever approved of the paper before or since. Always thought what was left out of the will was to be equally divided between the children. I see plainly as circumstances have occurred, how things stand. It was thought after the transfer took place they would be a harmonious family. Instead of that, they are not friends, and I among the rest of them as I find. It was about light in the evening when we first went there. They went in the down door stairs. She came down. A little argument arose, unpleasantly for me. I can’t say what was first said. The conversation was on the transfer of the stock. Mrs. Dunton reflected on Mr. Dunton, that it was not executed down stairs. She said she would not put her foot in the house again. At that moment Ann D. came out and said she would sign it I asked Ann D. Mr. Elkinton not present previous to her signing it. This question was down in the kitchen. I stand here disinterested, with á clear conscience. There was a little broiling down stairs. I told Ann this. I said I had one question. Well, said she, Marinus, what is it. Said I, if you sign that instrument, you will never reflect on me. No, says she, ■ I never will. These are the words to the best of my recollection, for I was always opposed to it. This was down below. She signed it up stairs in-the back room. If she had staid a moment longer it would not have been signed, for they were going away. Mrs. Dunton said she would never enter, the house again. Mrs. Dunton blamed Mr. Dunton for not having it signed down stairs. Dr. Elkinton and Mr. Stevenson were not below. None below but the family. They went up from the kitchen to go away. Ann came out. I can’t say if she had a pen in her hand. The gentlemen witnessed it. .A short time afterwards Mr. and Mrs. D. went away. The contents of the paper were not communicated to the gentlemen who signed. I don’t think it was. It was done in a moment. I know they did not read it. I suppose she was move than 21. She was more than 25. Ann is the oldest sister; I called upon you (Mr. IngersoII) once or twice with Mr. Dunton as executor; I remember coming to consult you about, transfer of stocks; Mr. Dunton came; I cüd not recollect your drawing the paper; I recollect him coming in harmony and good will to me, and your drawing the instrument; I don’t recollect that I intimated any objection to your drawing this instrument; at the time it was executed I did not state my objections to Miss Delamater; I don’t know that I told her any thing more than what I said before as to the question. I told her about .not reflecting upon me; I don’t know if it was the same evening I was at your office. In conversation with Ann, I have stated my objections to the instrument; she was an orphan; no stock in New York that I know of, was undisposed of by will; Mr. Dunton asked Mr. Ingersoll as to all proper proceedings under the will; I recollect Mr. Dunton haying this instrument at my'house. There was some argument down stairs. She partially opposed signing it on account of the dispute. The will was the subject of conversation; I heard her say that she thought her papa meant that Caroline should have an equal proportion of the estate with her; she spoke of her father having more stock than in the will; she viewed it in that way, that her father meant an equal division between them. There was jangling about the instrument; then she made up her mind about the paper. It was a family quarrel among them; I can’t say she did positively object to signing the paper down stairs. Mrs. Dunton said that in case the transfer was made, and it was not right, it should be amicably settled between them; I supposed she meant she would give back half of it. The marriage took place ten months afterwards. Nothing was said about a seal to the paper.”
    Ann Kremer testified as follows:—
    
      “ I heard a conversation last Tuesday week at Mr. Elkinton’s^ between those persons. I went there with Mr. Dunton with a view of questioning Mrs. Elkinton on account of the money signed over. She said she believed it to be an act of justice at the time. Dr. Elkinton was present. She said there was no force used when she signed the paper. She said she went to a grocery store opposite for a pen and ink. Dr. Elkinton said that as far as he knew, there was no force used. She said she knew perfectly well the contents of-the paper when she signed it. Don’t remember any thing else that he said. Don’t recollect Mrs. E. saying that she signed on condition that it (the property) should be returned to her if she objected to it. Mrs. Dunton said she would be willing to restore it to Ann Delamater, not as Mrs. Elkinton. The conversation was long, and there was a great deal that I could not recollect. Mrs. Elkinton said something, I do not recollect, (about a condition to the paper.) I do not recollect if she said any thing about a condition. I think Mrs. E. said something about signing on condition'to restore it, and Mrs. Dunton said in answer that she would be willing to restore to her as Ann Delamater, and not as Mrs. Elkinton. I recollect hearing something of the kind about Mr. Dunton insulting her, but not as to that being her motive for signing it. Don’t recollect at what time she said Mr. Dunton insulted her. Can’t say whether Dr. E. or Mrs. E. made the remark about the condition. No one said there was a condition at the time it was signed, that it should be returned if objected to. I understood it was said in conversation between themselves. I think before the paper was signed. They did hot say that she even had demanded it again. I live with Mr. Dunton’s father. ■ Do not pay board there. I make my home there. I am from Wilmington, Delaware; I was born there 20 years next August. I am a niece of Mr. Dunton, Sen. Nothing particular talked over with Mr. and Mrs. Dunton. Mr. Dunton, Jr. was at the house when we went there. The object of our visit was not talked of before him. Mr. Dunton was sick when we went there. It was for the purpose of knowing whether she signed it as an act of justice. She said she signed it believing it at the time to be an.act of justice. No one else present.”
    Nancy McNeil testified as follows:—
    I lived in the family of old Mr. Delamater nearly twelve years. Immediately before and up to his death. Staid there four or five weeks after his death. Up to the time Miss Delamater gave up house-keeping. I lived there at the time Mrs. Dunton was married. He always seemed to be very attentive to his business. I have frequently seen him writing. He had a very good memory. Always seemed as if he had a most excellent memory. Always kept his faculties to the very last. I have heard him say, after JMrs. Dunton was married and settled, that he had provided well for her, and got her many good things. I have often heard him say, he would take good care of Ann. That she was not as well protected as Caroline. She had not a husband then. Caroline got bureau, carpets, &c. She had a house furnished by Mr. Delamater. It was a three story brick house. Never saw Dr. Elkinton. Believe it w’as after Mr. Delamater died. He came there to visit a lady from New York. About three weeks after D.’s death. It was in January. He died 7th of December. Had some furniture. There were some w'ords between Mr. Dunton and Mr. Delamater. Mr. Dunton had not been to the house, for some time, and Mrs. Dunton too. 11 think nearly a year that they abstained from coming. Mr. Delamater had a spell of sickness, and she came to see him. Mr. Dunton and Caroline were married in private, i. e. unknown to the family. The familyand all of them did not, like it, but they did not seem to be dissatisfied. Never saw Dr. Elkinton but once at the house. He had been there but one evening, and I was not at home. It was in the early part of January that he was there. I attended to the household concerns there. Kitchen below.. House in Eighth street above Arch. Cellar kitchen. My general place ini the house was in the kitchen. This dispute between ,Mr. Delamater and Mr. Dunton took place several years ago. The brother and Mr. Dunton had the dispute at first. The brother was Mr. Caldwell. Mrs. Dunton took part with her husband against Mr. Caldwell, who lived there then. I can’t say what he had been writing, when I sawhim. It was said Dr. E. came there to see a lady from New York. I live at corner of Second and Mary streets. I keep house. Am not married. Keep store there. I left there on the 11th of January, 1830. Ann Delamater kept house for her father, after her mother’s death, which was about seven years.”
    Ellen Pike testified.
    “ I was on a visit to Miss Delamater at the time this paper was signed. Mr. and Mrs. Dunton entered the room. Mr. Dunton laid the paper on a stand. I think it was Mr. Dunton. Ann signed it. Previously to the gentlemen witnessing the paper, she asked iíit was necessary the paper should be read, and Mr. Dunton said, oh no. Mr. Stevenson and Dr. Elkinton witnessed it. This was after she signed it, but before the gentlemen witnessed it. I did not see the contents of the paper. Only saw it lying on the table. Dr. Elkinton was in the'house about half an hour before the paper was signed. I was intimate with Miss Delamater. The acquaintance between her and Dr. Elkinton commenced either the 4th or 5th of January. I think the 8th. He met her at Dr. Burr’s on the 8th January. Called one morning afterwards, and then was there that evening, which made the third time he had seen her. I don’t think he had any knowledge of the contents of the paper when he signed it. I have every reason to believe he had not. He was in the room with me all that half hour. There was not any engagement between them of marriage at that time, I thjnk. About three or four minutes after the paper was signed Mr. Dunton retired. He put it in his pocket directly after it was witnessed. My father, Mr. and Mrs. Dunton and Ann came into the room at the same time. The paper was signed by the door. I did not see her read it. I don’t think she did read it in the room. They were down stairs together- She did not say any thing about the contents of the paper. She was out of the room when I came in, and was out until she came in in search of an inkstand. ’It was about half an hour after I came, that she canae in for the inkstand. She was in and out at the time. The inkstand was got in the neighbourhood somewhere. I think Mr. Dunton called on the gentlemen to witness her signature.”
    Dr. Burr proved that the acquaintance of Dr. Elkinton with Miss Delamater, commenced on the 9th of January, 1830.
    Mr. F. W. Hubbell, for the appellant:— ■
    The release or assignment of the 43 shares of stock was obtained under circumstances which authorize and'require the Court, sitting as a Court of equity, to set it aside, and disregard all proceedings which have been had under it.
    
      1. The recitals are erroneous. Mr. Delamater is not to be considered as having died intestate with regard to this stock, since the words in the residuary clause are broad enough to carry it. But if it were otherwise, it would by no means follow that it was an accidental omission, and that he intended to place both sisters on the same footing. The will shows that he entertained a preference for his unmarried daughter, and if he gives her a greater proportion of his property, it will be seen that he has provided liberally for Mrs. Dunton’s children. It appears that besides the 40 shares in the Bank of the United States, and 3 shares in the Bank of Pennsylvania, omitted in the will, he owned 22 shares in the Manhattan Bank of New York, and 6 shares of turnpike stock, which are not mentioned. This fact was not communicated to Miss D. at the time she was required to sign the paper.
    2. As between these parties the release was void. Miss D. stood in the relation of cestui que trust to Mr. Dunton ; and the policy of the law wisely forbids all dealings between persons so circumstanced, whether they be in the nature of sales or gift. It is only after the parties, being sui juris, have deliberately dissolved the relation of trustee and cestui que trust, that the law permits them to enter into contracts with each other. It is true that the gift in this case is to the wife of the trustée, but the objections are as strong, and the rule equally applicable, as if the gift were diréctly to the husband. It is true, that Miss D. was appointed a co-executor by the will, but she never received letters testamentary, and was ignorant of her rights and powers. She was a young woman, dependent upon her sister’s husband for information and counsel. The evidence shows that the paper was signed under circumstances calculated to alarm her, and to deprive her of suitable deliberation. The paper was drawn by the professional adviser of Mr. Dunton, and it does not appear that it was ever read over to her. The authorities show that it lies upon the party setting up a.paper like this, to prove that the party executing it was made acquainted with all material facts and conusant of his rights. Mr. Hubbell cited the following cases: Davoue v. Fanning, (2 Johns. C. R. 252.) Fox v. Machreth, (2 Br. C. C. 400.) Osmond v. Fiizroy, (3 P. Wms. 131.) Walmsley v. Book, (2 Athyns, 25.) Wood v. Domes, (Í8 Ves. 119.) 13 Ves. 136. Webb v. Rourke, (2 Sch. dj- Lef. 661.) Exparte James, (8 Ves. 452.) Gibson v. Jayer, (6 Ves. 276.) Coles v. Trecothick, (9 Ves. 296.) Exparte Bennet, (10 Ves. 381.) Exparte Lacy, (6 Ves. 627.) Moi'se v. Royal, (12 Ves. 372.) Lowtherx. Lowther, (12 Ves. 95.) Lazarus x. Bryson, (3 Binn. 54.) Moody x. Vandyke', (4 Binn. 43.) Say x. Barnes, (4 Serg. Sf R. 112.) Bixler x. Kunkle, (17 Serg. ép R. 298.) Jeremy’s Equity,- 394. Shelford on Lunatics, dpc, 318,
    
      Mr. C. Ingersoll and Mr. Chauncey, for the appellees:—
    ’Thereis nothing in the circumstances of this transaction, calling upon the Court to interfere. Miss Delamater was 29 years old, a co-executor, conversant with the situation and amount of her father’s property, and better acquainted than any one else, with his intentions as to the disposition of it. The evidence taken by the auditor, shows that no improper influence was exercised. She had full time for deliberation, since the paper was not signed until more than a month after her father’s will was proved. The recital of the intestacy of Mr. D. in respect to the 43 shares, is certainly correct. To argue that bank stock will pass under a clause like that in the will, is to go further'than any case has yet done. The words, “ the remainder of my worldly substance,” are explained and controlled by what follows, viz. “consisting of furniture, bedding,” &c. enumerating them; and the words, ‘“claims and demands,” obviously refer to debts due to him by individuals. Then if the transaction be such that it would be supported in an ordinary case, is there any thing in the relative situation of the parties to invalidate it. There is no such rule as that a trustee cannot, under any ,circumstances, deal with the cestui que trust. It is true that contracts between them are looked upon with suspicion; but if it be shown that the parties dealt as strangers, that no undue influence was exerted, and no important information withheld, there is no reason why such contracts should not stand. Morse v. Royal, (12 Ves. 272, 3.) Gibson v. Jayer, (6 Ves. 277.) Exparte Lacy, (6- Ves. 627.) 1 Cruise Dig. 538, 9, tit, 12, c. 4, § 57. Campbell v. Walker, (5 Ves. 673, 13 Ves. 60.) Harris x. Tremenheere, (13 Ves. 136.) At all events contracts between trustee and cestui que trust are not void, but voidable at the election of the latter, who will be taken to have confirmed the transaction, if he suffer any considerable time to elapse. S/iohvell-v. Murray, (l Johns. C. R. 516.) Prevost v, Gratz, (1 Peters’ C. C. R. 364.) Bruch x. Lantz, (2 Raicle, 416, 418.) Lister x. Lister, (6 Ves. 231.) Here there was an ácquieseence of 10 months and more. But in truth the parties did not at any time stand towards each other in the position of trustee and cestui que trust. Miss D. was sui juris, under no restraints, and possessed equal knowledge and power with Mr. Dunton. She might have taken letters testamentary at any time, and have prevented the transfer of the stock. In this case, there are none of the features which have induced the Courts to set aside conveyances or gifts. The legatee here, never was in the power or under the influence of the executor. Mr. Pike, the co-executor, joined in the transfer, and was competent and willing to protect her interests if they required it. Besides this was the case of an agreement between members of the same family for the quieting of controversies. And in such cases, Lord Elden said, in Stochley x. Stockley, (1 Ves. dp Beames, 30,) “ the Court administers an equity which is not applied to agreements generally.” Stapylton v. Stapylton', (1 Atkyns, 2.) (1 Ves. 19.) Cary v. Cary,
    
   The opinion of the Court was delivered by—

Gibson, C.'J.

We are called upon, not to withhold our assistance from the execution of an agreement, but to cancel a contract executed; and it is to be noticed that there is a material difference between circumstances which require a chancellor to forbear, and those which require him to act. On a question of specific performance he may "choose to be silent; and his action, being of grace and not of right, is to be directed by a sound though legal discretion. But circumstances proper for rescisión, involving, as they do, the control of a legal right, are necessarily of a more positive and definite cast. The consequence of the distinction is, that though equity will refuse to interfere for purposes of execu tion wherever it would revoke, it may refuse to revoke where it would decline to execute. A chancellor lends not assistance to an unconscionable bargain, accompanied with circumstances of suspicion though not positively unfair, as in Campbel v. Spencer, (2 Binney, 129); but hardship or suspicion of unfairness is certainly not ground of recision. Had the title been conveyed in the case quoted, no interference of the jury or the court would have prevented a recovery. These are elementary principles about ' which there is no dispute. Now the grounds on which equity interferes for rescisión, are distinctly marked, and every case proper for this branch of its jurisdiction, is reducible to a particular head. They are principally fraud, mistake, turpitude of consideration, and circumstances entitling to relief on the principle of quia timet. The case at bar, cannot, consistently with its nature, be brought under either of the two last; and as there is small allegation of mistake, and still less proof of it, the contract can be successfully assailed, if at all, but for fraud proved or inferrible from want of consideration and the relation in which the parlies stood.

I have searched the proofs, without success, for anything like a suggestion of falsehood or suppression of truth. Miss Dela mater had long attained the age of discretion, was conscious that the title was vested in her, and was aware that she could not be divested of it without her consent. In executing the act of transfer, she thought she was but carrying out the plan of her father; and there is nothing to show that her belief, whether well or ill founded, was generated by the arguments or suggestions of the donees.; neither was she moved towards the consummation of her purpose by threats or intimidation. Mrs. Dunton had declared that she would not again enter the house if her expectations were disappointed ; but, surely such a declaration is not an engine of duress, proper for the consideration of a chancellor. It is certainly not a proof of legal duress; and it has been determined in Stouffer v. Latshaw, (2 Watts, 165,) that there is no such thing as equitable duress. The only inducement to the act not made good to the letter, is Mrs. Dunton’s promise to have the matter amicably arranged, if found not to be right. Mr. Pike supposes this to have been an engagement to restore, and Ann Kremer, the other witness, speaks of it very indistinctly. It seems to have meant no more than the parties were expected to deal with each other on honour; and that is certainly not a cause for relief. In dealing with a person of weak intellects, such a promise might be a circumstantial proof of imposition ; but Miss Delamater, is not alleged to have been such. We discern nothing in her conduct evincive of it.' She appears to have acted on a settled conviction that her father’s partial intestacy was the effect of accident, and that she was required by duty to repair it.

If her belief in this particular were correct, and it has not been shown that it was not, the moral obligation cast upon her by the discovery of her father’s intent, would be a consideration to support even an executory agreement. But to a contract executed and requiring not the interposition of a chancellor, a consideration is unnecessary. A gift cahnot be retracted; and even a voluntary specialty may be enforced at law without hindrance from equity, which does not recognise the want of an actual consideration as a ground of injunction. But, without even' the pretence of a consideration, the executed transfer was an irrevocable gift of the stock, though the donor may have been mistaken in the existence of some fact which was the collateral inducement to the act.

Did the parties stand in a relation to forbid the transaction? The residuary bequest of “ furniture, bedding, carpets, china, kitchen furniture, looking-glasses, crockery, &c.,” certainly did not carry the stock; nor was it embraced by the supplementary description of “ money in bank,” or “ all claims and demands of whatever nature.” These, as justly remarked by the auditor, are not such as, in the ordinary sense of t he words, denote bank stock. The subject of the contest., then, did not pass by the will, and the parties stood, as regards it, in no fiduciary relation whatever. What then was there to prevent them from dealing for it on a footing of ordinary equality? A trustee has been suffered to acquire even the trust fund, the cestui que. trust acting with full knowledge of the circumstances and having the management of the sale. The rule was perhaps never carried so far as to prevent the parties from dealing with each other in the attitude of stfangers, and at arms length; and it seems to be mitigated by recent decisions. In the English chancery it seems to be no more than this. Where the parties stood in a very confidential relation, •such as guardian and ward, attorney and client, or cestui que trust and trustee, the party seeking to set aside the deed shall not be called on to show direct fraud; yet the burthen of proving that advantage was taken of the confidence incident to the relation will nevertheless rest on him, subject, however, to rebuttal by proof from the other side, that the dealing was, in fact, guarded as between strangers, and without advantage taken of influence or superior knowledge. The subject is, to say the least, eloquently discussed in Hunter v. Atkins, (1 Cooper's Rep. of Ld. Brougham’s Decisions, 464,) to which those who choose to pursue it further, are referred. But it is proper to remark that the relation of trustee, including that of guardian and executor, is the one in respect to which the Court is the least vigilant, being most especially awake to the transactions of an attorney with his client. Now in reference tó the transaction here, the relation could not be put off, for it never existed; nor did the parties treat under an impression that the stock was involved in it. Miss Delamater knew that it was not peculiarly in the control of Mr. Dunton and his wife, and that, as to ownership and every thing besides, she was on a footing with them. She was in her thirtieth year, and she seems to have been every way competent to deal with them in this or any other transaction. But what was her relation to them even in respect to the trusts in the will? She was joined with them in the execution of it; and though she had not acted, yet being officially and intellectually competent, she was their equal and at liberty to assume the active duties of the office when she might please to do so. She was exactly informed of her position; no circumvention was practised on her, and though she was strongly — perhaps indelicately — pressed by considerations that might operate on the sensibilities of a sister, these are referrible to the relation of blood and not of office. Even as a relative she was put on her guard by her kinsman, Mr. Pike; and the act of transfer thus performed under a sense of moral obligation — possibly a mistaken one — by a person not disqualified by imposition or any particular relation, is conclusive.

Report and decree affirmed.  