Opinion,
Me. Justice Steeeett :
The sole question for our consideration is whether the evidence was sufficient to have warranted the jury in finding that [416]*416the release, interposed as a bar to plaintiff’s claim, was fraudulently procured and therefore void. If it was wholly insufficient to justify such a finding, there was no error in withdrawing it from the consideration of the jury and directing a verdict for defendant.
The claim against the corporation defendant appears to have originated as follows: Plaintiff’s father, by the second codicil to his will, executed eight days before his decease, bequeathed his residuary estate, amounting nominally to nearly $20,000, to the defendant, in trust for charitable purposes. It is conceded that under our statute the bequest, thus made less than one calendar month before testator’s death, was absolutely void, and plaintiff as one of his lieirs-at-law was legally entitled to one third of said residuary estate. In due course of administration it would have been converted into money and she would have received her share of the proceeds; but, about three weeks after her father’s death she was induced to execute a paper releasing all claim thereto,, and requesting the executor “ to pay over to the several legatees named in the will the legacies therein devised, according to the terms therein expressed, and especially any balance that may be devised to the First Presbyterian Church and Congregation of Meadville, Pa.,” the defendant in this suit. In less than six months thereafter the executor assigned and transferred to defendant the residuary estate, nominally amounting to $19,257, consisting of mortgages, judgments, and other evidences of indebtedness, the real value of which is said to be about $13,000. Afterwards plaintiff discovered, as she alleges, that the release had been fraudulently procured from her by Mr. White, who was an officer and agent of the corporation defendant, and thereupon she determined to insist on claiming her interest in the residuary estate. The release, being regular on its face, was of course a sufficient warrant to the executor for disposing of the residuary estate as he did, and hence plaintiff had no recourse to him. She then brought this suit to recover the value of her interest in the residuary estate, which came into defendant’s possession by virtue of the release and assignment aforesaid.
Evidence was introduced for the purpose of showing the invalidity of the release, but the learned judge who presided at [417]*417the trial was of opinion that it was insufficient to justify a verdict in favor of plaintiff, and he accordingly directed the jury to find for defendant.
It is not our purpose to refer in detail to the evidence relied on by plaintiff, but a careful consideration of it as a whole has led us to a different conclusion. Dr. A. McLean White, through whose active agency the release was procured, was a. trustee of the corporation defendant and secretary of the board of trustees. As the confidential friend of the testator he wrote and witnessed the will, and, as appears by printed exhibit contained in defendant’s paper book, he was present when the will was read, on the day after the funeral, and heard Mr. Bole, who had been general counsel for testator, announce that the second codicil, containing the residuary bequest to defendant, was void for want of time between the date thereof and the death of testator. A few days thereafter, with full knowledge of that fact, and, as he himself declares, knowing everything about testator’s property and how he disposed of it, Mr. White addressed a letter to plaintiff, in which he volunteered to furnish her “all the details frankly and carefully,” in relation to her father’s death and the disposition he made of his property. He also suggested that there was some interest coming to her on a certain note, which he would endeavor to secure for her, etc. The letter in full is as follows:—
“Meadville, Pa., May 80,1881.
“ Mrs. A. M. Brooks, Atlanta, Ga.
“Dear Madam: As an intimate and confidential friend of your father, having written his will and knowing everything about his property and how it was disposed of by him, I write to say to you that if you desire to communicate with me in order that you may be fully informed in regard to the particulars of his death and his will, you can do so with the assurance that I will take great pleasure, out of regard to his memory, to furnish all the details frankly and carefully.
“ The letter you wrote to him on the 16th instant did not get into his hands, which I am sorry for. It is now before me, and its contents does honor to you, which I know would have given him unspeakable pleasure had he been permitted to see or hear it read. He spoke of you often to me, and his heart went out towards you with due paternal affection. Mrs. Big[418]*418elow did not get here until after he died. She is now ill at the old home, but expects to leave for the East to-morrow or the day after.
“Although your father had himself settled his bequest to you and had your receipt in full for your interest to his estate, yet, I think there is some interest coming to you on that §1,000 note, which • I think the executors would pay you by my request. If such is the case and you will inform me, I will use my influence to secure what balance of interest may be yours, if you feel satisfied that you should have it. This will be without any expense to you. What I will do will be out of a deep regard for the sense of justice that your father desired to maintain, and which for his sake I will aid to carry out.”
After receiving her prompt reply, he again wrote June T, 1881, giving a detailed account of her father’s last illness and death, etc., and then referred to the residuary bequest to the church, thus:
“He was deeply interested in establishing a fund for the poor of his church. That troubled him for a long time how to do it. He thought at first of making Mr. Northam the trustee, but when he remembered that the church was incorporated and perpetual in its duration, he made it his trustee. As he had many bad debts, some outlawed, it is hard to tell what the remainder may be. Everything else must be paid—his legacies, debts, a law suit, just begun against him by the Whit-mans, must be fought again, lawyers’ fees; but if we could get the estate settled without delay, and thus save executors’ and court fees, it would prove much more than if prolonged, and that brings me to the business and conclusion of this long letter.
“ In conclusion, let me say in regard to the claims you present ..... The executor, Mr. Northam, is perfectly willing to pay over to you everything that the board of trustees of the First Presbyterian Church instructs him to pay, which, of course, must be deducted from what your father left tbe poor of the church. Without the consent of the board, however, he cannot pay anything to you legally. I have no doubt as to either of your claims in equity; most probably under the will neither of them could be enforced, but I have this assurance from a part of the board of trustees, the secretary of which I [419]
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Opinion,
Me. Justice Steeeett :
The sole question for our consideration is whether the evidence was sufficient to have warranted the jury in finding that [416]*416the release, interposed as a bar to plaintiff’s claim, was fraudulently procured and therefore void. If it was wholly insufficient to justify such a finding, there was no error in withdrawing it from the consideration of the jury and directing a verdict for defendant.
The claim against the corporation defendant appears to have originated as follows: Plaintiff’s father, by the second codicil to his will, executed eight days before his decease, bequeathed his residuary estate, amounting nominally to nearly $20,000, to the defendant, in trust for charitable purposes. It is conceded that under our statute the bequest, thus made less than one calendar month before testator’s death, was absolutely void, and plaintiff as one of his lieirs-at-law was legally entitled to one third of said residuary estate. In due course of administration it would have been converted into money and she would have received her share of the proceeds; but, about three weeks after her father’s death she was induced to execute a paper releasing all claim thereto,, and requesting the executor “ to pay over to the several legatees named in the will the legacies therein devised, according to the terms therein expressed, and especially any balance that may be devised to the First Presbyterian Church and Congregation of Meadville, Pa.,” the defendant in this suit. In less than six months thereafter the executor assigned and transferred to defendant the residuary estate, nominally amounting to $19,257, consisting of mortgages, judgments, and other evidences of indebtedness, the real value of which is said to be about $13,000. Afterwards plaintiff discovered, as she alleges, that the release had been fraudulently procured from her by Mr. White, who was an officer and agent of the corporation defendant, and thereupon she determined to insist on claiming her interest in the residuary estate. The release, being regular on its face, was of course a sufficient warrant to the executor for disposing of the residuary estate as he did, and hence plaintiff had no recourse to him. She then brought this suit to recover the value of her interest in the residuary estate, which came into defendant’s possession by virtue of the release and assignment aforesaid.
Evidence was introduced for the purpose of showing the invalidity of the release, but the learned judge who presided at [417]*417the trial was of opinion that it was insufficient to justify a verdict in favor of plaintiff, and he accordingly directed the jury to find for defendant.
It is not our purpose to refer in detail to the evidence relied on by plaintiff, but a careful consideration of it as a whole has led us to a different conclusion. Dr. A. McLean White, through whose active agency the release was procured, was a. trustee of the corporation defendant and secretary of the board of trustees. As the confidential friend of the testator he wrote and witnessed the will, and, as appears by printed exhibit contained in defendant’s paper book, he was present when the will was read, on the day after the funeral, and heard Mr. Bole, who had been general counsel for testator, announce that the second codicil, containing the residuary bequest to defendant, was void for want of time between the date thereof and the death of testator. A few days thereafter, with full knowledge of that fact, and, as he himself declares, knowing everything about testator’s property and how he disposed of it, Mr. White addressed a letter to plaintiff, in which he volunteered to furnish her “all the details frankly and carefully,” in relation to her father’s death and the disposition he made of his property. He also suggested that there was some interest coming to her on a certain note, which he would endeavor to secure for her, etc. The letter in full is as follows:—
“Meadville, Pa., May 80,1881.
“ Mrs. A. M. Brooks, Atlanta, Ga.
“Dear Madam: As an intimate and confidential friend of your father, having written his will and knowing everything about his property and how it was disposed of by him, I write to say to you that if you desire to communicate with me in order that you may be fully informed in regard to the particulars of his death and his will, you can do so with the assurance that I will take great pleasure, out of regard to his memory, to furnish all the details frankly and carefully.
“ The letter you wrote to him on the 16th instant did not get into his hands, which I am sorry for. It is now before me, and its contents does honor to you, which I know would have given him unspeakable pleasure had he been permitted to see or hear it read. He spoke of you often to me, and his heart went out towards you with due paternal affection. Mrs. Big[418]*418elow did not get here until after he died. She is now ill at the old home, but expects to leave for the East to-morrow or the day after.
“Although your father had himself settled his bequest to you and had your receipt in full for your interest to his estate, yet, I think there is some interest coming to you on that §1,000 note, which • I think the executors would pay you by my request. If such is the case and you will inform me, I will use my influence to secure what balance of interest may be yours, if you feel satisfied that you should have it. This will be without any expense to you. What I will do will be out of a deep regard for the sense of justice that your father desired to maintain, and which for his sake I will aid to carry out.”
After receiving her prompt reply, he again wrote June T, 1881, giving a detailed account of her father’s last illness and death, etc., and then referred to the residuary bequest to the church, thus:
“He was deeply interested in establishing a fund for the poor of his church. That troubled him for a long time how to do it. He thought at first of making Mr. Northam the trustee, but when he remembered that the church was incorporated and perpetual in its duration, he made it his trustee. As he had many bad debts, some outlawed, it is hard to tell what the remainder may be. Everything else must be paid—his legacies, debts, a law suit, just begun against him by the Whit-mans, must be fought again, lawyers’ fees; but if we could get the estate settled without delay, and thus save executors’ and court fees, it would prove much more than if prolonged, and that brings me to the business and conclusion of this long letter.
“ In conclusion, let me say in regard to the claims you present ..... The executor, Mr. Northam, is perfectly willing to pay over to you everything that the board of trustees of the First Presbyterian Church instructs him to pay, which, of course, must be deducted from what your father left tbe poor of the church. Without the consent of the board, however, he cannot pay anything to you legally. I have no doubt as to either of your claims in equity; most probably under the will neither of them could be enforced, but I have this assurance from a part of the board of trustees, the secretary of which I [419]*419have been for quite a number of years, that having written your father’s will, and being fully conversant with his desires, that if I fully concur in recommendation to the board that this amount shall be given to you out of the fund entrusted to the church, and present a paper from you that will be satisfactory to the board, and also to the executor, as his voucher to be passed upon by the court when he closes his account, then I can get a resolution passed by the board to pay the $150 over to you, or rather have Mr. Northam do so, for he has one year to settle his matters, and I think I can get this from him at once and without delay.
“I have, therefore, prepared a paper about like that the other heirs signed, which was done to cheapen and expedite the settlement of the estate, so that it might be saved and not be unnecessarily wasted. Upon the return of that paper to me, I think that within two weeks at farthest I will be able to send you a draft for the whole amount, or will instruct the .executor to do so.
“ I know there will be no exception taken to your claim for interest, and I will urge the other to be paid. I have not the least doubt you will get both, but should anything occur to prevent it (not probable), I will return you the paper at once and also your receipt. Let me add in confidence this: This is because I honored your father and desire to act justly towards all his children. I will write Lucy’s will soon. She has so requested me. I feel that it is her duty to make her sisters her residuary legatees. T shall use all my influence in that direction, for I believe your father would desire it, and it is just in every respect. I shall be the friend of yourself and Mrs. Bigelow, and anything you desire to know I will cheerfully communicate it. The paper inclosed after being dated and signed must be acknowledged before a notary public, not an alderman or justice. Please sign the receipt also.”
It is impossible to read the letters above quoted from, and consider them in the light of the evidence, without coming to the conclusion that the main, if not the sole object of the writer thereof, in opening the correspondence with plaintiff, was not to “frankly and carefully” furnish her with such information in regard to the situation of her father’s affairs as she was most interested in knowing, or to assist her in obtain[420]*420ing from his estate what she was justly and legally entitled to, but to conceal from her the fact that the residuary bequest was null and void, and to induce her to act upon the belief that she had no claim whatever on her father’s estate (except, perhaps, the pittance of $150, balance of interest, etc., above referred to), and thus by misrepresentation of facts and suppression of the truth obtain from her, without consideration, the release of her vested interest in the residuary estate. These, of course, were questions of fact for the jury, and should have been submitted to them under proper instructions.
The evidence tends to show that by strong professions of friendship, and expressions of desire to gratuitously render her all the assistance in his power, even to the extent of persuading her sister Lucy to make her one of her legatees, etc., he invited and succeeded in establishing, between himself and plaintiff, a ■ relation of trust and confidence which he was not at liberty to abuse, to her prejudice, by misrepresentation of facts or suppression of the truth in relation to her interest in the estate. His assertion, that without the assent of the corporation defendant, the executor could not legally pay her anything, not even the $150 that she claimed her father owed her, was not only untrue, but it was tantamount to a declaration that the residuary bequest to defendant was valid and binding. It is difficult to understand how he could have supposed there was’ any truth in either. But, whether he so believed or not, the evidence tends to show that plaintiff was misled as to the true situation of her father’s estate, and thereby induced to execute the release in question.
The defendant corporation is a mere volunteer. It gave no consideration for plaintiff’s share of the residuary estate. The release, it is true, recites a pecuniary consideration of $150, but that represents the two items claimed by plaintiff as due from her father. On the trial she offered to prove in surrebuttal that $50 thereof was interest due on the $1,000 note, and the remaining $100 was money her father owed her on another matter. Defendant’s counsel waived the proof by admitting the facts as stated in the offer. Plaintiff is thus made to occupy the somewhat anomalous position of having provided the'pecuniary consideration for her own release. In point of fact, the defendant gave no consideration for the interest it [421]*421claims to withhold from plaintiff by virtue of her release. It is a mere volunteer and cannot claim exemption from the legal consequences of its agent’s acts.
Without further comment on the evidence, we are of opinion that it was proper for the consideration of the jury, and should have been submitted to them.
Judgment reversed, and venire facias de novó awarded.