Fiedler, Jr., et ux. vs. Weinstein et ux. Cancellation Agreement-Real estate-Confidential Relations. Equity will decree the cancellation of an agreement for the sale of real estate and compel an accounting where defendant acting as agent and in a confidential relation to plaintiff, misled plaintiff by misrepresenting the actual facts, and concealing material facts from the principal. A cross-bill in such a case cannot be maintained where plaintiff in the crossbill is himself unable to perform his part of the agreement by having surrendered his option to the real estate involved, and where he has no title to the same. In Equity. No. 356 October Term, 1914. C. P. Allegheny County. Langfitt & McIntosh, for plaintiff. Louis V. Barach, for defendant. EVANS, J., February 9, 1915.-Plaintiffs filed their Bill alleging that the defendant, Isaac Weinstein had procured an agreement for the sale of real estate and had placed that agreement upon record. That it was a cloud upon the plaintiffs' title, and prays for its cancellation. FINDINGS OF FACT First. On the ninth of January, 1914, and for some time before that date, plaintiff, Martin Fiedler, was the owner of the land in dispute in this case situated in the Seventeenth Ward of the City of Pittsburgh, formerly the Thirtieth Ward. Second. On that date the plaintiffs and the defendants entered into the agreement attached to the Bill of Complaint, and marked "Exhibit A," by the terms of which the plaintiffs to this Bill agreed to convey the land situated in the Seventeenth Ward of the City of Pittsburgh, said property being situated at the corner of Carson and South Fifth Streets; and also the goods and chattels in the store on the premises above described; and defendants hereto agreed to convey or cause to be conveyed certain property on South Eleventh and Mary Ann Streets, in the said Seventeenth Ward, of the City of Pittsburgh, described more fully in the said articles of agreement. Third. Some time in the early summer of 1913, the plaintiff, Martin Fiedler, who had long been a neighbor and friend of the defendant, Isaac Weinstein, stated to Weinstein that he desired to dispose of his property and business at the corner of Fifth and Carson Streets, and would like to get a farm, and would be willing to sell or trade his said property with his stock of goods if an opportunity offered. Weinstein suggested that he would probably effect a sale or a trade of the said property for farm property, and it was agreed that if Weinstein succeeded in making a satisfactory sale or trade of the plaintiff's property, he would be paid a reasonable commission Weinstein brought to plaintiff's attention two different farm properties, which were not satisfactory to the plaintiff, and in the early part of December he came to the plaintiff's place of business and stated to him that he knew of a piece of property up on Eleventh Street, about six blocks away from plaintiff's place of business, that he thought the plaintiff could trade his property for, and suggested that they go and look at it. They went and examined the property. Subsequently the defendant, Weinstein stated to the plaintift that the owner of the property would not trade the property, that he required the cash for it, and that it could be bought for Eleven Thousand Dollars; subsequently he informed Fiedler that the owner wanted Eleven Thousand Five Hundred Dollars; that as the owner wanted cash, he, Weinstein, would arrange to pay the owner cash for his property and take Fiedler's property in exchange. Fourth. He stated to the plaintiff, Fiedler, that the property at Eleventh Street rented for Two Hundred Dollars a month; that it was especially fine renting property and never vacant, for the reason that the tenants through Fiedler, Jr., et ux. vs. Weinstein et ux. some arrangement with the Coal Company had free coal. At this time Weinstein was still acting as plaintiff's agent in the disposition of his property. Fifth. The statements of Weinstein to the plaintiff was not the fact. The owner of the Eleventh Street property did not demand Eleven Thouand Five Hundred Dollars for the property; at that time Weinstein had an option on the property for Eight Thousand Dollars; the property did not rent for Two Hundred Dollars a month; the tenants did not have free coal; and the property was not particularly desirable renting property. Sixth. On the execution of the agreement marked “Exhibit A," attached to the Bill of Complaint, Fiedler paid to Weinstein, at Weinstein's request, Two Hundred and Fifty Dollars commissions, the compensation to Weinstein for services to Fiedler in negotiating the transfer of the two properties. Seventh. Weinstein did not disclose to Fiedler the fact that he had an option on the Eleventh Street property for Eight Thousand Dollars. Eighth. On or about the 8th day of June, 1914, Margaret Keeling, the owner of the property at Eleventh and Mary Ann Streets, tendered to Isaac Weinstein a deed for that property. He refused to accept the deed, surrendered his option and all relations between him and Mrs. Keeling in regard to the Eleventh Street property were ended. Ninth. About the time of the execution of the agreement, to-wit, January 9, 1914, the goods, chattels and good-will of the store of the plaintiff Fiedler were sold for One Thousand Dollars, and that Thousand Dollars were paid to the defendant, Weinstein, in conformity of the Article of Agreement executed on January 9th. The rents from the store at the corner of Fifth and Carson Streets by agreement of the parties have been paid to the Potter Title & Trust Company to wait the final determination of this suit. CONCLUSION OF LAW First. Weinstein, being the agent for Fiedler, occupied towards him a confidential relation, and it was his duty to disclose to Fiedler all the information he had in regard to the Keeling property at Eleventh and Mary Ann Streets. Failing to do this, and misrepresenting the actual facts, and procuring the Article of Agreement marked "Exhibit A," attached to the Bill of Complaint, on the strength of the concealment of facts and the fraudulent representation as to the facts, his act was a fraud and the agreement is not binding on Fiedler. Second. The agreement of January 9, 1914, attached as "Exhibit A," to plaintiff's Bill of Complaint is null and void and should be delivered up for cancellation. Third. The One Thousand Dollars received by Weinstein as the proceeds of the sale of Fiedler's store, the Two Hundred and Fifty Dollars paid to Weinstein as commissions, and the rents of the property paid to the Potter Title & Trust Company pending this litigation should be paid to the plaintiff, Martin Fiedler, Jr., and Weinstein should account to Fiedler for all of said money. Fourth. The plaintiff in the cross-bill, Isaac Weinstein, having obtained the agreement of January 9, 1914, by fraud, is not entitled to specific performance of that agreement, nor to damages on account. of the breach of that agreement by Fiedler. Fifth. By reason of the fact that the plaintiff in the coss-bill is himself unable to perform his part of the agreement of January 9, 1914, by reason of the fact that he has surrendered his option and has no title to the Keeling property at Eleventh and Mary Ann Streets, he cannot sustain a bill for specific performance. The cross-bill of Weinstein against Fiedler should be dismissed at the costs of the plaintiff. Pearson's Estate. Wills-Legacy-Payment of interest. A will provided "I give, devise and bequeath to my executors and trustees the sum of five thousand ($5,000) dollars, to be held in trust for my niece, Maud Pearson, said sum to be paid by my executors and trustees at their discretion, and as they may determine to be for her advantage, for her education and maintenance, or to start her in business." The legatee was about five years old at the time of the death of the testator and it is apparent from the wording that he intended to make due provision for her for the essentials of life and that the will should be construed in this light and consequently the legacy should bear interest from the date of the death of the testator. Decedent's estate. No. 137 June Term, 1914. O. C. Allegheny County. James L. Weldon, for accountant. R. T. M. McCready, for Petitioner. F. C. McGirr, for respondent. TRIMBLE, J., April 19, 1915.-The question involved is whether a legacy bears interest, and if so, whether it accrues from the date of the death of the testator, or from one year thereafter. Frank Pearson executed his last will and testament on the 28th of November, 1906, and died October 6th, 1907. The eleventh paragraph of his will is, "I give, devise and bequeath to my executors and trustees the sum of five thousand ($5,000) dollars, to be held in trust for my niece, Maud Pearson, said sum to be paid by my executors and trustees at their discretion, and as they may determine to be for her advantage, for her education and maintenance, or to start her in business." The debts were all paid before the final account was filed, and it shows a balance far in excess of any sum necessary to pay the legacies. Before the audit of the final account the Sewickley Valley Trust Company was appointed guardian of Maud Pearson, who is about twelve years old; but her guardian had no notice of the audit, except the formal advertisement. At the audit the guardian did not appear; but the decedent's widow, who is the residuary legatee, opposed the payment of any interest on the legacy given to the testator's niece. A decree was entered by which the amount of the legacy, without interest and less the collateral inheritance tax, was awarded to the guardian on July 14th, 1914. After making fruitless efforts with the representatives of the estate to adjust the interest, the guardian filed a bill of review on January 22nd, 1915, praying that the decree of July 14th, 1914, be opened and for such other order respecting the trust fund as the minor is entitled to have made, and as to justice and equity appertains. The legacy to Maud Pearson is vested. It is not dependent upon a time and event which controls the payment, and therefore contingent, as illustrated'in Duffy vs. Presbyterian Congregation of Bellefonte, 48 Pa., 46, and since it is not a contingent legacy, interest has accrued on it from the time when the legacy fell due. If the time of payment is not deferred, as in Gunning's Estate, 234 Pa., 148, the interest will be payable either from the date of the testator's death, or one year thereafter, depending upon the relation in which the donor stood, or which he assumed toward the object of his bounty; Jacoby's Estate, 204 Pa., 188. If the legacy is a mere benefaction, uncoupled from an intention to maintain or educate the legatee, the interest will begin to run from one year after the death of the testator; but if the testator assumed to stand in loco parentis to the child, it will accrue from the date of his death. There is no doubt that it is not payable at the convenience of the executors. It is payable absolutely, but at the trustee's discretion, as they may determine to be for the advantage of the legatee, and for her education and maintenance, or to start her in business. The trustees were obliged to pay, and the discretion with which they were invested was legal and not arbitrary. While the Court will not substitute their discretion for that of the trustees, nevertheless it is an imperative power; it is legal and not capricious, and must be Pearson's Estate. honestly and reasonably exercised, and when there is an abuse, the Courts will correct it: See note to Section 511, 2nd Vol. 6th Ed. Perry on Trusts and Trustees; and Gochenauer vs. Froelich, 8 Watts, 19, where in construing a discretionary power the Supreme Court said: "There are cases where a claimant is entitled to the whole of his demand, as much as to any part of it; and there are cases where a part may properly be allowed and not the whole." "A person in loco parentis to a child is a person who means to put himself in the situation of a lawful father of the child with reference to the father's office and duty of making provision for the child"; Robinson's Estate, 35 Sup. Ct., 192. In this case the testator's nephew received a legacy upon which interest was allowed from the testator's death. See also Cooper vs. Scott, 62 Pa., 139; Seibert's Estate, 19 Pa., 49, and Corbin vs. Wilson, 2 Ashmead, 78, where it is said that the intention of the testator to stand in loco parentis must be gathered from the whole will. Maud Pearson was about five years old when her uncle died and left her this legacy. The purpose of the gift, shown by his unequivocal language was inspired by a solicitude for her nothing less than parental. "For her education, maintenance, or to start in business" were his own words in directing how the trustees should spend the legacy. He not only makes the gift, but shows his anxiety for the child's future, by directing its expenditure in the essentials of life; by his own language he places himself in loco parentis to this young girl, and the result is that the legacy given to her will bear interest from the date of his death. It is not tenable to argue that interest is not payable because the estate did not have sufficient funds to pay the same until a long time after the death of the testator, for in Houston's Appeal, 9 Watts, 472, it is said: "Even though a legacy is to come out of a part of the testator's estate which cannot be recovered for a long time after the year, and the testator directs the legacy to be paid when the money which is to constitute it can be recovered, still the payment of interest, if practicable, or at least the computation of it, will commence from the end of the year after the testator's death.". OPINION ON EXCEPTIONS. TRIMBLE, J., for the Court in banc.-The accountant was successful in enhancing the value of the assets which were taken under her control. The decedent was indebted in a large sum which has been paid by the executrix, under her management. For this she was paid. It could not be found as a fact, from the evidence, that the decedent's estate would not have been sufficient to have paid his debts and legacies and interest thereon, because no effort was made to sell his assets, except an offer of some of them to a man in Chicago. Without a diligent effort by advertising and otherwise seeking for purchasers, she cannot set up a want of assets to meet the claims of creditors and legatees. She is the residuary legatee, and after being paid full commissions, (the total amount paid to both the executor and executrix being $10,796.52) and taking credit for $18,492.46 cash and $45,252.20 of stocks taken from the estate for herself, and setting aside $20,650.00 of stocks for the testamentary trusts and legacies and paying the pecuniary legacies, she has left for herself $101,420.00. When a testator by clear language, assumes the duties of a parent, parol evidence to show that the object of his bounty is not in need, is inadmissible. Neither wealth nor poverty can alter the relationship which he himself has established. It was the decedent's express desire to educate and maintain his niece, or to start her in business, and the law clearly fixes the payment of interest on her legacy from the date of his death. This cannot be defeated by the whim of her trustee. Her notion of the discretion with which she was invested, is that she could withhold payment of the principal and interest indefinitely. Her first account shows the payment of almost all of the decedent's debts. She was trustee for the ward who now claims the interest. She should have caused a decree of d:stribution to have been made, but did not, and having held almost all of the Pearson's Estate. assets from September 3rd, 1909, when her first account was filed, until now, when the interest which she gets through the management of herself and husband is worth $146,672.20, according to her own accounts, all of the equities are with her cestui que trust, and she must respond with the payment of principal and interest. Her claim that she borrowed the money to pay the legatees is of no weight, because she used the assets of the estate as security for the loans, in order that she might preserve them for herself, instead of converting them to pay debts and legacies. Morrow vs. Morrow et al. Husband and Wifetify-Divorce. -Alienation of Affections -Conspiracy—Right to Tes It is a question for the jury to say whether there was a conspiracy. It is a question for the court to pass upon the sufficiency of the circumstantial evidence from which the jurors are asked to find a pre-existing conspiracy. A decree in divorce entirely legal and regular upon its face cannot be attacked in a collateral proceeding. The Act of March 27, 1913, Section 4, P. L. 14, does not permit a husband and wife to testify against each other indiscriminately, no matter by or against whom the action may be brought, but only in cases where one sues the other for the protection of his or her separate property. Trespass. No. 58 January Term, 1913. C. P. Allegheny County. Robb & Miller, for plaintiff. M. H. Stevenson, for defendant. OPINION REID, J., February 9, 1915.-Plaintiff, who is the wife of Frederick Mor. row, brought this action of trespass against the defendants to recover damages for an alleged conspiracy entered into between them to cause her husband to desert her, deprive her of his society and support, and to deprive her of certain means of livelihood upon which she had depended for the maintenance of herself and children. After a trial before a jury, a verdict of one thousand dollars was rendered for the plaintiff against the defendants. Thereafter counsel for defendants filed motions for a new trial and for judgment non obstante veredicto, and these motions are now before us for our consideration. Plaintiff's busband did, in fact, desert his wife, or, at any event, left her without her consent on August 18, 1912, and it would appear that she did not again see him until he came into court at the trial of this case to testify on behalf of the defendants. Plaintiff had been the wife of James Cowan, from whom she was divorced for a decree of the Court of Common Pleas of Armstrong County. Before procuring this divorce she, however, lived with Fred Morrow, as his wife in Oklahoma, and upon returning from that state with him was introduced by him to his father, Daniel W. Morrow, one of the defendants, and his father's family as his wife, although they had not then in fact been married. They were not married until sometime later, after plaintiff procured a decree of divorce against James Cowan. After their marriage they moved into a small house in the village of Bakerstown, which was purchased by Fred Morrow, and upon which he gave a mortgage. A small plot of three or four acres not far from his house belonging to Daniel W. Morrow was used by plaintiff and her hus |