Appeal of Coxe
13 A. 727
Pa.
1888
Check Treatment

Opinion,

Mr. Justice Clark :

Thе conveyance of 28th June, 18G9, from Maria L. Fleming to Samuel R. Colwell, was in the form of an absolute deed; the consideration, which was fixed at $8,571, was estimated upon the annuity tables as the value of the annual instalments of interest payable to her during life, on the assumed basis that the net one fourth of the estate in the hands of the trustee would amount to $12,500. By the agreement, which accomрanied the conveyance, however, it was agreed, that if on the settlement of the trustee’s account and the disposition of the estate in his hands, the net one fourth part of the estate should amount to more or less than $12,500 with the interest thereon, then the consideration of $8,571 should be increased or diminished in the ratio of such increase or diminution. The transaction appеared 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 counsеl, 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 pаrty 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 *106сorrespondence, 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 intеrest 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 interest under the terms of the will, was $88,665.96, 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 covеnant.

A question of fact was thus raised as to the actual relation of the parties, which question the master and the court, upon a full consideration of the evidence, have determinеd in favor of the appellees, and we are of opinion that in this they were right. It has not been either the policy or the practice of this court, to reverse the findings of a master on the facts, when approved by the 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 *107of 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 Cоlwell, 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 into his hands. His account would seem to have been completed, ‍‌​‌​‌‌‌​‌​​​‌​​‌‌​​​​‌​‌​​​​‌​‌‌​‌​‌​‌‌​‌​​​‌‌​‌‍subjеct to certain modifications, on the 16th May, 1873, when, prior to his departure for Europe, he furnished to her a full statement of the Atsion estate, exhibiting a balance of $83,665.96, upon which he was to pay interest. In this letter he says: “ As you will see by reference to the account, one fourth of the interest due on the first day of next July will be $382.18. The principal, on which I have to pay interest from July 1st, is shown to be $83,665.96, and one fourth of the annual interest on that $1,254.98, 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. Col-well, under an agreement with him, of a yearly sum from July 1, amounting to $1,254.98, and has also a life interest in the estate of Mrs. Ann R. 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: — “Semiannual sum payable to Mrs. Mariа 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 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.”

Cоlwell paid one instalment at the rate indicated in the fore*108going statements, and died in August, 1878; his brother, as the executor of his last will and testament, continued to pay the same amount annually until 1876, when hе 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. There is perhaps no direct or positive evidence to be found in the correspondence, of any agreement of Colwell to pay Mrs. Fleming upon thе footing of a fixed annuity, but the accounts and dealings between the parties, and Colwell’s statements, 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 the fund was not еar-marked in any way; there was no account kept by which it could ‍‌​‌​‌‌‌​‌​​​‌​​‌‌​​​​‌​‌​​​​‌​‌‌​‌​‌​‌‌​‌​​​‌‌​‌‍be distinguished from the residue of the fund. There is no ground, therefore, for supposing that the $27,600, which were lost with the Plymouth Iron Company, was that portion of the fund in which Mrs. Fleming was particularly interested. In view of these facts, which seem to be of the most convincing character, we cannot see how the master could have аvoided the conclusion to which he came. That this was without doubt the understanding of Mrs. Coxe herself, and of those having charge of the settlement of Colwell’s estate, is manifested in the method which wаs 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 he made, certain securities were set apart for the 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 certificаte 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 *109fully paid, with tbe 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 аppears 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 legаtee.”

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 both executrix and residuary legatee, she cannot elect to disregard her duty in onе capacity in order to avail herself of her rights in the other. The court had undoubted jurisdiction of the funds in her hands as executrix, and the decree was rightly entered.

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