" Collins et al. v. Hope et al. a lapse of time, the clearest case of fraud should be made out to allow parol proof to overcome a written will. The written will was not procured by the wife, nor did she prevent any intended will. In making the devise, the testator trusted to the discretion of his wife. To create a trust there must be fraud. A knowledge of the testator's intentions, and a refusal to carry them out, is not fraud. Fraud is not established by proof of the declared intentions of the testator, and the promise to fulfill them by his wife-not fraud in that sense of the term which will justify the introduction of parol proof to change, much less to contradict, a written instrument. There must be fraud in procuring the will, as by the false reading of it, the false suggestion, or concealment of material facts, etc. MCCLINTICK, EWING & HUNTER, in reply, The objections urged against complainant's claim are: 1. That a trust in reference to real estate can not be shown by parol. The English and American cases establish the contrary. 2. That the parol proof is inadmissible by reason of our statute of wills, which requires wills to be in writing. We answer, the complainants do not seek to disturb the will, but in a manner claim under it. This same objection has been made and overruled in England, Maryland, Tennessee, and Pennsylvania, and yet in those states, as in Ohio, wills are required to be in writing. 3. That there is no proof of fraud on the part of Mrs. Reeves. The proof settles that. Her refusal to perform a prior promise, relates back to the inception of the transaction, and taints it with fraud in the eye of the law, as in Podmore v. Gunning, cited above. 500] *Finally, the lapse of time is set up. Complainants could not know that Mrs. Reeves would refuse to execute her promise, until she died, and the bill was filed within four years after the probate of her will. A portion of the complainants had, until recently, been minors, and one was a minor when the bill was filed. SPALDING, J. If ever a will was made in so plain, direct, and simple language as to be "its own best interpreter," it would seem to me, that the last will and testament of Nathan Reeves is such an instrument. In the first paragraph, the testator gives all his estate, real and Collins et al. v. Hope et al. personal, to his wife Nancy, and "to her heirs and assigns forever." This is a devise in fee. It was claimed that a life estate was intended, and that the devisee was to dispose of the remainder according to the well-known and expressed wishes of the testator. The next following sentence is an ample refutation of any such claim: To be disposed of in such manner as she may judge best." And as if to make "assurance doubly sure," the testator then proceeds to reiterate his devise in fee simple." My meaning herein is, that the residue of my estate, after payment of all debts due by me at the time of my decease, shall belong to my said wife, her heirs and assigns forever." It is not seriously contended by counsel for complainants, that parol evidence can be introduced in this case for the purpose of contradicting, adding to, or explaining the will of Nathan Reeves. That." the judgment of a court in expounding a will should be simply declaratory of what is in the instrument," seems to be conceded. Otherwise, as has often been remarked with great pertinency, courts would permit the witness to make the will instead of the testator. Parol evidence is admissible, however, for the purpose of counteracting fraud, as "to show that one paper was obtruded on the testator for another, which he intended to execute." 8 Durn. & East, 147. *So "if a father devises to the youngest son, who prom- [501 ises that if the estate is devised to him, he will pay £10,000 to the eldest son. Equity would compel the former to discover whether that passed in parol; and if he acknowledged it, even praying the benefit of the statute, he would be a trustee to the value of £10,000." And it is said to be clear, that in such a case, if the trust were denied by the heir or devisee, it might be proved aliunde. 1 Jarman on Wills, 357. But in all such cases courts will move with the utmost caution. If parol evidence of the actual intention of a testator is inadmissible for the purpose of controlling or influencing the construction of the written will, when the attempt is made directly to overturn its provisions, how extremely guarded should courts of justice be, when the same end is sought to be attained, through an indirect and covert attack, by means of the same instrumentality. In the case at bar, the parol testimony introduced by the complainants, falls far short of satisfying this court that the testator Collins et al. v. Hope et al. intended that his wife should take, by his will, anything short of an absolute estate in the premises devised. The principal witness, who was the draughtsman of the will-himself a profound lawyer-does not venture to say that any alteration was made in the will of Nathan Reeves at the instance of his wife, who was made his only devisee. On the contrary, Judge Scott says expressly, that he himself suggested to the testator the propriety of devising the whole property to his wife, "if he had confidence in her that she would dispose of it in such manner as he had before indicated." In this he is contradicted by Mr. Collins, who evidently is not an unbiased witness, and his testimony will receive no further comment. The testator declared he had that confidence in his wife; and the will was executed accordingly. Mrs. Reeves declared that she understood her husband's wishes in that respect, and would act accordingly. Has she done so? No mortal can tell. The will was executed some six weeks after the conversation between Judge Scott and Nathan Reeves, touching 502] an equal distribution of the property among the children. We do not know how often he changed his mind after that, nor what new rule of distribution he may have imparted to his wife. She said, in the presence and hearing of the witness, that she fully understood her husband's wishes in regard to the property. As she was the mother of the children of whom he was the father, it is by no means surprising that he placed his whole property within her unlimited control. She had the same interest with himself in making provision for the wants of their children. She had the same parental feelings to gratify, in contributing to their comfort and happiness. She has dealt out to these children, from the abundance left her by her husband, most profusely; perhaps not in exactly equal proportions, but of this she was made the judge, by the express language of the will. We can see nothing in the conduct of this devisee, either before or after the decease of the testator, that can be tortured into a fraud upon the rights of the complainants. She did not, as we believe, solicit her husband to alter his intended bequests to his children; and consequently, his absolute devise to her can not be burdened with a trust created by proof aliunde. The bill will stand dismissed, with costs. 426 Glass et al. v. Greathouse. *DAVID GLASS ET AL. v. ISAAC AND THOMAS GREATHOUSE. [503 In a case in chancery where there are two defendants, and the bill is dismissed as to one and a decree against the other, an appeal by the latter does not vacate the decree as to the former; more especially where there is not that necessary connection between the defendants but that the rights of one can be determined without affecting the rights of the other. In such case, if the complainants are not satisfied with the decree dismissing the bill as to one of the defendants, it is incumbent on them to appeal. An appeal by the other defendant against whom a decree is rendered, does not appeal the case as to the defendant as to whom the decree dismisses the bill, nor is such latter defendant a party on appeal in the court above, so that his right may be passed upon. If an administrator purchase land at his own public sale, he will be held to have purchased in trust for the heirs, and upon being refunded the amount by him paid, will be decreed to convey to the heirs. If he has sold the land to a third person, he (the vendor) will be held to account to the heirs for its value at the time of its original purchase or otherwise, as the case may be, with interest, first deducting the amount by him paid. Such is the rule, whether the administrator purchase directly or through another person for his benefit. BILL in chancery, reserved in Highland county. The complainants are the heirs at law and legal representatives of Robert Glass, late of Highland county, deceased. It is stated in the bill that said Robert Glass died in 1828, leaving personal property, and also seized of 220 acres of land in Highland county, which is particularly described in the bill, and which is the principal subject of controversy in this case. At the time of his death he left a widow, who is still surviving. It is further stated, that at the July term of the court of common pleas of Highland county, 1828, letters of administration were granted to the defendant, Isaac Greathouse, who accepted the trust, and at the April term of the same court, 1831, filed a settlement account with the court, showing that there then appeared in his hands $350.66, to be distributed among the widow and heirs. It is charged that this balance has never been accounted for, and the defendant, Isaac, is now called upon to account for it. *It is further charged, that at the same term of the court, [504 to wit, the April term, 1831, one Jonathan Allison, of the State of Glass et al. v. Greathouse. Virginia, commenced a suit at law against Greathouse, as administrator, for the recovery of a certain debt against the estate, which pretended debt was known by the said administrator to have been paid, and that the administrator collusively procured said suit to be commenced against him, with design to defraud the estate, and that at the October term of the court, 1832, although he knew there was a good defense in the case, suffered judgment to be rendered against him for the sum of $279, with costs. It is further stated, that at the April term of the same court, 1833, Greathouse presented a petition, praying for an order to sell the real estate before named, to satisfy said judgment, falsely representing that the aforesaid balance of $350.66, in his hands at the time of the settlement aforesaid, had been principally distributed to the widow and heirs, and that nothing remained in his hands to discharge the payment except the sum of $60.87. Such proceedings were had, that at the October term of the court, 1833, an order of sale was made, said real estate having been previously appraised at $150, exclusive of or subject to the widow's dower. The first order was that the land should be sold for cash in hand at not less than two-thirds of the appraised value. At the March term, 1834, the administrator reported that he had twice offered the land for sale, and that it remained unsold, for want of bidders. The court then ordered the land to be sold at not less than $260. At the June term of the court, 1834, the administrator again reported that the land had been offered, and not sold for want of bidders. Another order was then made by the court, that the land should be sold for not less than one-half the appraised value. In pursuance of this latter order, the land was again offered for sale at public auction, and struck off to Lewis Lewis, who bid for the 505] same $235, which was the highest and best bid, and more than one-half the appraised value. This sale was on August 2, 1834. The sale was confirmed at the October term of the court of the same year; and on the 17th day of October, after the confirmation, Isaac Greathouse, as administrator, conveyed the land to Lewis, and Lewis on the next day, to wit, on the 18th day of October, reconveyed the same land to Greathouse, whereby the title. became vested in him. It is further charged in the bill, that from the inception of the proceedings on the petition to sell land, down to the time of actual sale, the conduct of the said administrator was fraudulent through |