adopt that course. A number of letters passed having no interest and no liability himself, exbefore the papers were signed, in some of which cept for the simple receipt and disbursement of there were expressions which seem to show that moneys. It is an administration account, to if the covenant was executed, Mrs. Fleming the extent of showing collections and disbursewould simply commit to him the management of ments, in the original settlement of the estate, so her share of the estate. It was, however, at last far as that settlement had then progressed; the signed; whereupon, Mr. Colwell having become accountant thereby showed how much of the the purchaser of the two outstanding life interests estate he had then received; he charges himself of one-fourth each, he and Mrs. Colwell filed with interest as a personal obligation, on all his their bill in equity in the Court of Chancery of receipts, and takes credit for interest on his disNew Jersey, in which they averred that by bursements. In other words, it is more like a virtue of the premises' (the conveyances by Mrs. mercantile account, where the merchant is handRichards and Mrs. Fleming respectively) S. ling money of his own on the account of another. R. Colwell and Anna M., his wife, owned abso- He was the owner of the money, and handled lutely the whole estate.' An answer was filed by and used it for his own purposes, simply accountMr. and Mrs. Fleming admitting the facts, and ing for it, in order to ascertain the principal of disclaiming any further interest in the estate, the estate which he received and which regulated and an answer was also filed by Mr. Irick. A de- the amount of interest which he was personally cree was accordingly made directing a convey- bound to pay to Mrs. Fleming, crediting her ance by Irick, which was made. with such interest. Deducting interests on payments from interest on receipts, leaves a balance of interest on receipts of $1816.13, one-fourth of which he credits to Mrs. Fleming, viz: $454.03. Attention is again called to the fact that this is not interest collected on investments, but a charge against testator personally, as the recipient of the money. Of this he says in his letter: Please examine it and inform me whether you are entirely satisfied; in which case I will put the $453.03 to your credit and will continue to keep the account in the same way, paying you one-quarter interest annually.' To this letter Mrs. Fleming replied, under date of 6th February, 1871 (March, 1871), in which she says that the letter and account are satisfactory, and I have no suggestions to make.' Another similar account for 1872 is stated to be under an agreement between Mrs. M. L. Fleming and S. R. Colwell,' etc., showing a balance of interest to the credit of Mrs. Fleming of $425.86. This was followed by an account as agent or attorney in which he credits her with this balance, as from him, stating again that it is under agreement with S. R. C.'

"In view of these proceedings, it is impossible to say that the testator, S. R. Colwell, has no interest in the property, and merely managed it as petitioner's agent. He might perhaps have held it as her trustee, yet as to this it is well to bear in mind his statement that he had been advised by Mr. Browning-most able counsel that a conveyance to him as trustee would not answer the purpose of divesting the title from Irick,' and in view of the allegation of absolute ownership, and Mrs. Fleming's disclaimer of any further interest, the Examiner is not disposed to so hold. Such a secret trust would closely approach a fraud on the Court, who decreed a conveyance on the basis of an absolute interest, equitable as well as legal.

66

"Even conceding such a private trust, which perhaps ought to appear by writing (and the Examiner cannot find any writing which to his mind satisfactorily shows it) there would still remain the question whether some other arrangement was not subsequently made; whether the trust was not abandoned, the parties standing on their rights under the conveyance, and merely making other arrangements respecting the payment of The effect of these charges and credits for the consideration. Both in this aspect and as interest better appears by comparing the accounts bearing on the original understanding, the con- with those in which testator acts as attorney in duct of Mr. Colwell in accounting to Mrs. Flem-fact. Several of these are in evidence, and they ing is conclusive. He was, as already stated, contain no such entries. They do, however, attorney for Mrs. Fleming in her other American show purchases of bonds and other investments, interests, and as such rendered many accounts; and they also show in detail all receipts and exbut he never included among them the proceeds of the Richards estate. When he had administered a considerable part of that estate, he sent an account inclosed in a letter, dated February 10, 1871. In comparing the letter with the account, the rule which was adopted plainly appears. The account is not in the least analogous to one prepared by a trustee or agent,

penses, including the source of each item of in-
come, including interest from the estate of Wil-
liam H. Richards, one entry of which has already
been pointed out: another is transferred from the
account of the Richards property, where it is said
to be paid by a credit . on her general ac-
count with S. R. Colwell.'
"The bulk of the Richards estate having been

liability is restricted or removed is another sub-express purpose of meeting this payment, and sequent, independent, and distinct fact,' respect- this by her written assent and the decree of the ing which the answer is not evidence. (Eaton's Court thereon. This has a double bearing: 1st. Appeal, 16 P. F. Smith, 483, 490.) A common On the correctness of the answer; 2d. On the illustration, of which many instances are cited facts generally and her present liability as exin the case just mentioned, is the defence of pay-ecutor. ment made as part of the transaction in which it is sought to charge the defendant, is sufficiently proved by the answer; a subsequent payment is

not.

Mr. Colwell, in August, 1876, transferred to his sister-in-law, the respondent, all the papers and property in his hands, either as her agent or as executor. It includes, among other things, the Cam"Moreover, the circumstances are entirely in- den and Atlantic bonds reserved in the settlement consistent with such an arrangement. The bonds of the estate for the two annuities. It is contended were purchased and issued in the name of Mr. that she received these as legatee and distributee. Colwell individually, and do not agree in amount She had no right to them in that capacity. They with the share of the Richards estate in which had been reserved by order of Court in the hands the petitioner is interested. The entire balance, of the executors, and as one of the executors she as we have seen, was $83,665.96, one-fourth of might properly receive them. In the absence of which is $20,916.49, while the bonds produced anything definite in her receipt, and of any other amount to $27,500. They produced interest at evidence, the Examiner rules that they were rethe rate of eight per cent., while she was paid at ceived by her in the only capacity in which she the rate of six per cent. only. If the discrep-could lawfully take them; and it appearing that ancy in the amount is explained by a purchase they have since been sold, she ought to account under par, this only increases the discrepancy in for her investment of the proceeds. the amount of interest collected and paid. The "To sum up: The Examiner finds that the bonds bear date March 1, 1873, while the settle- testator in his lifetime bound himself to pay to ments with Mrs. Fleming were made to a later Mrs. Fleming, the petitioner, the annual sum of date and her investments were deposited for her $1254.98 in semi-annual payments, unless inin the Pennsylvania Company. Default was creased or reduced; that there is no evidence of made in the payment of interest on the bonds in expenses which would reduce it; that this was a 1874, while the payments to Mrs. Fleming were personal obligation on his part, binding him durmade for ten years afterwards. Mrs. Colwell ing his lifetime and his estate after his death (Mrs. Coxe), in her letter as late as 1878, during the life of Mrs. Fleming; that this oblispeaks of her interest and asks to be relieved gation was not released or extinguished, and that temporarily from its payment by a loan of the in the settlement of the first account of the actamount, and appeals for this on the ground that ing executor, bonds ample in amount to secure she had made a heavy loss by the failure of the most abundantly the two outstanding obligations Iron Works, in which Mrs. Fleming might re- of the testator were set aside for the purpose of member that the money from the sale of her meeting them, which bonds came to the hands of (Mrs. C.'s) New Jersey tract had been invested. the respondent, Anna R. Coxe, one of the exeThe whole tone of this letter is incompatible with cutors of the testator, and they or their proceeds the idea that Mrs. Fleming's money had been in- are now, in contemplation of law, in her hands vested and lost in those works. After their fail-for that purpose. The annuity is in arrear from ure, Mrs. Coxe dealt with the bonds as her own, January 1, 1884. Mrs. Coxe should pay it from going into a new venture with them. The record that date. of this Court on the first account of Charles R. Colwell is also conclusively against the claim. It contains an entry of the payment of a half-statement that the obligation accrued since the year's annuity to Mrs. Fleming at the rate now claimed by her, and so far from asking that the bonds of the Iron Co. be set aside to Mrs. Fleming during her life, or be retained to pay her annuity, although the default in the payment of their bonds had not yet been made, other bonds were set aside to meet this very annuity. It will not do to say that this was not Mrs. Colwell's account; she was one of the executors and assented in writing to its correctness, and it was passed on the faith of her assent. It thus passed into decree, and it is too late to attack it. The bonds were retained by her co-executor for the

"It is contended that this Court has no jurisdiction of the subject. One reason given is the

death of the testator. This statement is incorrect; the obligation is that of the testator, although the instalments of money now demanded became payable afterwards. They are in the same position as a promissory note or bond made by him in his lifetime, but maturing afterwards. It is exactly parallel with Hunt's Appeal (14 WEEKLY NOTES, 377), which was substantially an annuity. The other reasons given are inapplicable to the facts as above found.

"The petitioner has asked for a decree requiring Mrs. Coxe to give security under the Acts of March 29, 1832, § 25, and April 25,

1850, § 1, Pur. Dig., pp. 559, 560, pl. 252 and 256; also to require her to file an account. The latter seems to be a needless expense; there is no suspicion that there are other claims outstanding, and the Examiner has found that the bonds set apart for the purpose were ample to secure both of the annuities. As the bonds were set aside for this specific purpose, there is no reason why the Court should not at once order the executrix who received them to so apply the money from them. The terms of the Acts seem to be mandatory in requiring security from an executrix marrying. The Examiner, therefore, submits a decree for the payment of the sum of $3764.94, being the annuity due since January 1, 1884, and requiring the entry of security. She should also pay the costs of this proceeding, including the Examiner's fee of three hundred dollars."

Exceptions filed to this report were dismissed in an opinion by ASHMAN, J., and a decree was entered, as reported by the Master. Whereupon Anna R. Coxe took this appeal, assigning for error the decree of the Court.

William W. Wiltbank, for appellant.
Frank P. Prichard, for appellee.

ence, was that Colwell acted as the agent of Mrs. Fleming, holding her estate in trust for investment to her use that he was simply the custodian of her title, and acted as her attorney in fact; that in good faith, with ordinary prudence, and with her consent, he invested her funds in the bonds and mortgage of the Plymouth Iron Co., an enterprise which ended in a total loss, and that his estate is not responsible to her therefor.

On the other hand, it is contended, on the part of the appellee, that from the manner in which the investments were made, the accounts kept, and the business transacted, it is manifest that Colwell regarded himself as a purchaser and owner of Mrs. Fleming's interest in the estate, for the actual amount realized; that he held himself liable to her for one-fourth of the interest on the entire fund coming into his hands, giving to her the advantage of the actual instead of the estimated value, and that this was the nature of the arrangement alluded to in the correspondence between them; that when the Atsion estate was disposed of, and all matters relating thereto were adjusted and settled, it was ascertained that the principal on which Colwell was held for payment of in

and that one-fourth of this sum was agreed upon as the fund upon which Mrs. Fleming was entitled to draw interest annually, under the terms and conditions of the covenant.

April 23, 1888. THE COURT. The convey-terest under the term of the will, was $83,665.96, ance of 28th June, 1869, from Maria L. Fleming to Samuel R. Colwell, was in the form of an absolute deed; the consideration, which was fixed at $8571, was estimated upon the annuity tables as the value of the annual instalments of inter- A question of fact was thus raised as to the est payable to her during life, on the assumed actual relation of the parties, which question the basis that the net one-fourth of the estate in the Master and the Court, upon a full consideration hands of the trustee would amount to $12,500. of the evidence, have determined in favor of the By the agreement, which accompanied the con- appellees, and we are of opinion that in this they veyance, however, it was agreed, that if on the were right. It has not been either the policy or settlement of the trustee's account, and the dis- the practice of this Court, to reverse the findings position of the estate in his hands, the net one-of a Master on the facts, when approved by the fourth part of the estate should amount to more or less than $12,500 with the interest thereon, then the consideration of $8571 should be increased or diminished in the ratio of such increase or diminution. The transaction appeared thus to be founded upon a movable consideration, no part of which was paid. It seems, however, to be conceded that the deed was used, under the advice of counsel, to unite the interests of all in one, in order to take the estate out of the hands of Irick, the trustee, whose methods were not satisfactory to the parties. It is not pretended by either party that the deed and covenant represented the transaction precisely as it was; indeed it seems clear that, at the time these writings were executed, no definite understanding existed between the parties.

The contention of the appellant's counsel is, that whilst the conveyance from Mrs. Fleming to Colwell is absolute, yet the understanding of the parties, as shown by their subsequent correspond

Court, except in cases where the error is flagrant, and we discover no such error in this case. Indeed upon a careful examination of the whole case, the findings of the Master would seem to be fully justified by the evidence; the investment of the fund upon which Mrs. Fleming was entitled to interest, does not appear to have been in any way distinguished from the residue, of which Colwell was himself the owner; the statements rendered from time to time were of the entire fund, in such form as to exhibit the interest product of the whole; Mrs. Fleming does not appear to have been consulted as to the mode or form of investment, or as to the rate of interest, nor does she appear at any time to have assumed any right to control Colwell, or to question his conduct or management of the fund. The result of the negotiations between the parties is shown in the letter of 10th February, 1871, in which Colwell develops the arrangement existing between them, and undertakes to pay to her the interest on one

fourth of the entire net balance which may come the fund was not ear-marked in any way; there into his hands. His account would seem to have was no account kept by which it could be disbeen completed, subject to certain modifications, tinguished from the residue of the fund. There on the 16th May, 1873, when, prior to his de- is no ground, therefore, for supposing that the parture for Europe, he furnished to her a full $27,500, which were lost with the Plymouth statement of the Atsion estate, exhibiting a bal- Iron Company, was that portion of the fund in ance of $83,665.96, upon which he was to pay which Mrs. Fleming was particularly interested. interest. In this letter he says: "As you will In view of these facts, which seem to be of the see by reference to the account, one-fourth of the most convincing character, we cannot see how interest due on the first day of next July will be the Master could have avoided the conclusion to $382.18. The principal, on which I have to pay which he came. That this was without doubt interest from July 1, is shown to be $83,665.96, and one-fourth of the annual interest on that $1254.98, making the semi-annual payments to you $627.49."

The statement which he furnished to the Pennsylvania Company on the 18th April, 1873, a copy of which he forwarded to Mrs. Fleming, was to the same effect. In that he says: "Mrs. Fleming is entitled to a payment from S. R. Colwell, under an agreement with him, of a yearly sum from July 1 amounting to $1254.98, and has also a life interest in the estate of Mrs. Ann M. Richards."

About the time of his departure for Europe, he placed in the hands of his brother a memorandum headed, "Liabilities of S. R. Colwell," which contained the following: :

"Semi-annual sum payable to Mrs. Maria L. Fleming, during her life, as follows: July 1, 1873, $382.16, and thereafter until Atsion account is modified by further receipts and expenditures, on the first day of each January and July $627.49.

"This is to be paid to the Pennsylvania Company for Insurances on Lives and Granting Annuities, from whom receipts are to be taken as amounts due by S. R. C. to Maria L. Fleming, as per agreement, in relation to Atsion estate of W. H. Richards, deceased."

Colwell paid one instalment at the rate indicated in, the foregoing statements, and died in August, 1873; his brother, as the executor of his last will and testament, continued to pay the same amount annually until 1876, when he placed the securities, which by the order of the Court had been reserved for the payment of this annuity, in the hands of Mrs. Colwell, now Mrs. Coxe, the appellant, who continued to pay at the same rate until the year 1884.

the understanding of Mrs. Coxe herself, and of those having charge of the settlement of Colwell's estate, is manifested in the method which was adopted to make provision for this claim. At the settlement of the executor's account, in order that a proper distribution of his estate might be made, certain securities were set apart for payment of the annuity of Mrs. Fleming. Mrs. Coxe, who was co-executor with Charles R. Colwell prior to the confirmation of his final account, appended to it a certificate in the following form:

"I hereby acknowledge that I have received the several sums and securities credited as paid to me in the foregoing account of Charles R. Colwell, acting executor of S. Richards Colwell, deceased, and I declare that I have examined the said account and it is correct; and I hereby agree that the same may be absolutely confirmed by the Court, without reference to an auditor, and respectfully request the honorable Court to confirm the same, without audit, all debts of the said estate having been fully paid, with the exception of two bonds given by the testator to secure the payment of two annuities, amounting together to two thousand and five dollars per annum, for which securities have been reserved, as appears by the account, the principal of the bonds falling into the estate on the death of the annuitants, and payment of the annuities having also been assured by myself, the residuary legatee."

In this form the account was ultimately confirmed, and the securities which were thus reserved, together with all the others belonging to the estate, were subsequently passed into her hands. She was the residuary legatee, but she was also the executrix, and as executrix she is bound to answer Mrs. Fleming's demand. Being There is perhaps no direct or positive evidence both executrix and residuary legatee, she cannot to be found in the correspondence of any agree- elect to disregard her duty in one capacity in ment of Colwell to pay Mrs. Fleming upon the order to avail herself of her rights in the other. footing of a fixed annuity, but the accounts and The Court had undoubted jurisdiction of the dealings between the parties, and Colwell's state-funds in her hands as executrix, and the decree ments, clearly indicate that this was the method adopted. The correspondence, which has been much relied on by the appellant's counsel, does not appear to be greatly inconsistent with this view of the case.

Moreover, Mrs. Fleming's one-fourth part of

was rightly entered.

The decree of the Orphans' Court is affirmed, and the appeal dismissed at the cost of the appellant.

Opinion by CLARK, J.
TRUNKEY, J., absent.

L. L., Jr.