Opinion by
Mr. Justice Dean,
William Fink, the testator, died September 12, 1890. He left an estate of over $4,500, which he directed to be divided equally among eight of his children and their descendants, practically excluding from participation a ninth child, Catharine Weaver, this appellee.
.In view of the relations existing between this father and daughter for some years before his death, the reason for thus cutting her off with one dollar and fifty cents is not hard to see. The testator had been in feeble health for some years ; his wife, the mother of these children, had long been dead. It is the not very rare case of an old man, changeable in mind, and very sensitive to real or imaginary neglect or unkindness on part of his children.
The testator, in September, 1884, showed a decided partiality for his daughter Catharine, and from his conduct towards her, and what he said concerning her, one would have been led to infer she would be the favored beneficiary in the distribution of his estate.
But having made his home with this daughter and her husband for a period of four months, by her command he leaves [299]*299her house, and, with expressions of bitter resentment, makes his will and gives her nothing.
The first thought in the minds of those who have no interest in the matter is, that this old man treated his daughter unjustly, and their inclination is to make a will for him which will do justice according to their notions; ignoring or forgetting the fact that the property belonged wholly to the testator to dispose of as suited his inclinations, for there was no question as to his mental capacity, and no allegation of undue influence. So the will must stand. But, smarting under a supposed wrong, it occurs to the disappointed child there is another way of defeating the intention of the testator to exclude her ; if she can show an indebtedness to her on part of the father, equal to about the share she expected, justice will be done. If the law can be invoked to award her the amount of her claim, that will practically reform the will. The difficulty about such a method of equalization, is satisfactory proof of the indebtedness. The auditor finds there was no such indebtedness, the court that there was. What is the proof?
The testator owned a house and lot in Shiremanstown, worth about $700; about the 1st of September, 1884, he made out and acknowledged a deed to Catharine for this property, and there is some evidence that it was delivered to her; she paid nothing for it; it was the understanding of both father and daughter, that he was to have a home with her the remainder of his life, and this was the reason for the conveyance. Very soon after, they thought it desirable to purchase a farm called the Smyser farm in Monroe township ; so the daughter, the father being present and consulting with her, made a written contract with the owner for its purchase at the price of $3,650; the daughter paid in hand only $25.00; the deed was to be made the 1st of April, 1885. It was understood and agreed, between father and daughter, that the Shiremanstown property should now be sold, and the purchase money applied in part payment of the farm; the remainder was to be paid directly by the father. The daughter, on the 29th of November, 1884, did sell the Shiremanstown property to Christian Myers for $700, he paying to her $5.00 of the purchase money, which she handed to her father; afterwards, she surrendered to him the deed which he had before made to her, and which had not been re[300]*300corded. The legal title of record being still in the father, he, on the 1st of April, 1885, conveyed it to Myers, the purchaser, taking from him a mortgage to himself for $650, the unpaid purchase money, which was paid to him as the mortgage matured. On the 10th of January previous, however, the father and daughter quarreled, and, at the request of herself and husband, he left the house not to return. Although there were repeated efforts to that end on part of the father and others-of the family, there was no reconciliation, and the estrangement continued until his death, nearly six years afterwards. Because of inability to do so, the daughter paid no part of the remaining purchase money on the Smyser farm, and absolutely refused to have anything further to do with the transaction. So the father, on the 3d of April, 1885, paid the whole of the-unpaid purchase money himself, and took the deed in his own name. Two years afterwards, he sold and conveyed it to Jacob Renecker, and received the purchase money.
It will be noticed that the father, as to both properties, conveyed the legal title, and received the purchase money.
On these facts, the daughter claimed before the auditor so-much of the purchase money of the Shiremanstown property,, with interest, as was represented by the mortgage. The auditor found: (1) There was no contract, express or implied, between the daughter and father, which would sustain the claim for the purchase money. (2) If there were such contract, the-claim was barred by the statute of limitations.
The learned judge of the orphans’ court, on exceptions, set-aside the report of the auditor, holding: (1) The Shiremanstown property, by the deed from the father, became absolutely the-daughter’s. (2) That she re-delivered the deed to him on the-understanding it should be sold, and the purchase money be paid on the Smyser farm, which was not done; therefore the-father’s estate should be answerable to her for the money. (3) That the statute of limitations was no bar to her claim, for although more than six years had elapsed from the date of the-conveyance of the property to Myers, yet it was less than six years from the dates the installments of the mortgage became payable, and that the statute only commenced to run against her from these dates.
[301]*301The court therefore awarded her the amount of mortgage, ........ $650.00
Interest from April 1st, 1885, to April 1st, 1891, 195.00
Hand money on Smyser farm, . . . 25.00
Interest from April 1st, 1887, to April 1st, 1891, 6.00
Total, $876.00
The legal conclusion of the court is based on the fact, that the Shiremanstown property was absolutely the daughter’s, and, as the father received the price of it, his estate must account for the price as money received to her use. Assuming that the evidence shows the delivery of the deed to her, which was hot recorded, and then returned to the father, with the distinct agreement between them that the property was to be conveyed by the father, as if no conveyance had ever been made by him to her, and that the purchase money was to be applied in part payment of the Smyser farm, then this, as between themselves, was a rescission of the contract of conveyance.
It is not material to inquire whether such a course of conduct is effectual, in general, to work the rescission of a deed as against an objecting grantee. The daughter here affirms the complete rescission of the conveyance by asserting her right to the purchase money. Her claim, then, to the money, in equity, must depend on the nature of the transaction.
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Opinion by
Mr. Justice Dean,
William Fink, the testator, died September 12, 1890. He left an estate of over $4,500, which he directed to be divided equally among eight of his children and their descendants, practically excluding from participation a ninth child, Catharine Weaver, this appellee.
.In view of the relations existing between this father and daughter for some years before his death, the reason for thus cutting her off with one dollar and fifty cents is not hard to see. The testator had been in feeble health for some years ; his wife, the mother of these children, had long been dead. It is the not very rare case of an old man, changeable in mind, and very sensitive to real or imaginary neglect or unkindness on part of his children.
The testator, in September, 1884, showed a decided partiality for his daughter Catharine, and from his conduct towards her, and what he said concerning her, one would have been led to infer she would be the favored beneficiary in the distribution of his estate.
But having made his home with this daughter and her husband for a period of four months, by her command he leaves [299]*299her house, and, with expressions of bitter resentment, makes his will and gives her nothing.
The first thought in the minds of those who have no interest in the matter is, that this old man treated his daughter unjustly, and their inclination is to make a will for him which will do justice according to their notions; ignoring or forgetting the fact that the property belonged wholly to the testator to dispose of as suited his inclinations, for there was no question as to his mental capacity, and no allegation of undue influence. So the will must stand. But, smarting under a supposed wrong, it occurs to the disappointed child there is another way of defeating the intention of the testator to exclude her ; if she can show an indebtedness to her on part of the father, equal to about the share she expected, justice will be done. If the law can be invoked to award her the amount of her claim, that will practically reform the will. The difficulty about such a method of equalization, is satisfactory proof of the indebtedness. The auditor finds there was no such indebtedness, the court that there was. What is the proof?
The testator owned a house and lot in Shiremanstown, worth about $700; about the 1st of September, 1884, he made out and acknowledged a deed to Catharine for this property, and there is some evidence that it was delivered to her; she paid nothing for it; it was the understanding of both father and daughter, that he was to have a home with her the remainder of his life, and this was the reason for the conveyance. Very soon after, they thought it desirable to purchase a farm called the Smyser farm in Monroe township ; so the daughter, the father being present and consulting with her, made a written contract with the owner for its purchase at the price of $3,650; the daughter paid in hand only $25.00; the deed was to be made the 1st of April, 1885. It was understood and agreed, between father and daughter, that the Shiremanstown property should now be sold, and the purchase money applied in part payment of the farm; the remainder was to be paid directly by the father. The daughter, on the 29th of November, 1884, did sell the Shiremanstown property to Christian Myers for $700, he paying to her $5.00 of the purchase money, which she handed to her father; afterwards, she surrendered to him the deed which he had before made to her, and which had not been re[300]*300corded. The legal title of record being still in the father, he, on the 1st of April, 1885, conveyed it to Myers, the purchaser, taking from him a mortgage to himself for $650, the unpaid purchase money, which was paid to him as the mortgage matured. On the 10th of January previous, however, the father and daughter quarreled, and, at the request of herself and husband, he left the house not to return. Although there were repeated efforts to that end on part of the father and others-of the family, there was no reconciliation, and the estrangement continued until his death, nearly six years afterwards. Because of inability to do so, the daughter paid no part of the remaining purchase money on the Smyser farm, and absolutely refused to have anything further to do with the transaction. So the father, on the 3d of April, 1885, paid the whole of the-unpaid purchase money himself, and took the deed in his own name. Two years afterwards, he sold and conveyed it to Jacob Renecker, and received the purchase money.
It will be noticed that the father, as to both properties, conveyed the legal title, and received the purchase money.
On these facts, the daughter claimed before the auditor so-much of the purchase money of the Shiremanstown property,, with interest, as was represented by the mortgage. The auditor found: (1) There was no contract, express or implied, between the daughter and father, which would sustain the claim for the purchase money. (2) If there were such contract, the-claim was barred by the statute of limitations.
The learned judge of the orphans’ court, on exceptions, set-aside the report of the auditor, holding: (1) The Shiremanstown property, by the deed from the father, became absolutely the-daughter’s. (2) That she re-delivered the deed to him on the-understanding it should be sold, and the purchase money be paid on the Smyser farm, which was not done; therefore the-father’s estate should be answerable to her for the money. (3) That the statute of limitations was no bar to her claim, for although more than six years had elapsed from the date of the-conveyance of the property to Myers, yet it was less than six years from the dates the installments of the mortgage became payable, and that the statute only commenced to run against her from these dates.
[301]*301The court therefore awarded her the amount of mortgage, ........ $650.00
Interest from April 1st, 1885, to April 1st, 1891, 195.00
Hand money on Smyser farm, . . . 25.00
Interest from April 1st, 1887, to April 1st, 1891, 6.00
Total, $876.00
The legal conclusion of the court is based on the fact, that the Shiremanstown property was absolutely the daughter’s, and, as the father received the price of it, his estate must account for the price as money received to her use. Assuming that the evidence shows the delivery of the deed to her, which was hot recorded, and then returned to the father, with the distinct agreement between them that the property was to be conveyed by the father, as if no conveyance had ever been made by him to her, and that the purchase money was to be applied in part payment of the Smyser farm, then this, as between themselves, was a rescission of the contract of conveyance.
It is not material to inquire whether such a course of conduct is effectual, in general, to work the rescission of a deed as against an objecting grantee. The daughter here affirms the complete rescission of the conveyance by asserting her right to the purchase money. Her claim, then, to the money, in equity, must depend on the nature of the transaction.
It is admitted she paid nothing for this deed; it was made to her by the father on the agreement or understanding he was to have his home with her the remainder of his life; he lived six years afterwards, but, with the exception of the first four months, did not have his home with her, and this, because she peremptorily dismissed him from it. The fact that, by the agreement of both, it was thought best to purchase the Smyser farm and make that the home, and the purchase money of the Shiremanstown property was to be put into it, was no essential change in purpose of either, and no payment by her of the consideration for the deed. It imposed upon the father the contribution of a much larger amount of money, but that was all; he had appropriated for the understood purpose a property worth $700; now he consents to appropriate for the same purpose one worth $8,600; but as the first, in view of the purpose, could no longer be of service, it was sold to lessen the amount [302]*302of money necessary to be raised by him for the purchase of the second. Before the home was established as contemplated by both on the Smyser farm, the unfortunate quarrel took place. It appeared the father had already loaned his daughter’s husband $1,100, for which he had taken no security, and which the husband was unable to pay; the father complained of this; but it is not important to extend the inquiry into the cause of the estrangement; probably neither side was blameless. The established fact remains, that the daughter wholly failed to perform the service which was the consideration of the deed ; she gave the father no home on the Smyser farm or elsewhere.
As this consideration was not a covenant in the instrument, had she stood on her deed and refused to surrender it, what ever might have been the remedy of the father for her refusal to give him a home, the property would have remained hers absolutely; but, voluntarily, she gave back to the father what she was to get, and never gave him what he was to get, a home in his declining years. Where is the room to recognize in equity or at law any indebtedness on part of the father under such circumstances? Thereafter, both were in precisely the situation as before the deed was made to her. And so she must have understood it; for during the nearly six years of his life, after the sale of the property to Myers, she made no claim for any part of the purchase money. The whole of the testimony, taken in connection with her conduct, conclusively shows that the claim for the purchase money of the Shiremanstown property is an afterthought prompted by disappointment in the distribution made by the father’s will. Having wholly failed to sustain her claim, it cannot be allowed.
As to the $25.00 paid by the daughter on the purchase of the Smyser farm, the payment was made in September, 1884; on the 3d of April, 1885, the father took a conveyance of this land from Mrs. Smyser in his own name; at that date, if not sooner, her right of action for money paid to the father’s use accrued; her claim was presented before the auditor June 22, 1891; the auditor held it was barred by the statute of limitations; under Yorks’s Ap.,110 Pa. 69, and the line of authorities following it, he was clearly right. The court below sustained her claim to this sum on the theory that the money was received by the father to her use, when he conveyed the farm to Renecker in [303]*3031887, and that the daughter had no right of action until then. But this is a mistake; the appropriation of her money to his use, was when, by a distinct unequivocal act of appropriation, he took to himself the title to the land on which it had been paid; he then had possession practically of her money, because he took the exclusive benefit and enjoyment of the farm. From that date there was an implied contract on his part to repay, and a right in her to demand. As this was more than six years before she presented her claim, her right of action is barred.
It follows from what we have said that the learned court erred in setting aside the report of the auditor; therefore, the appeal is sustained; the decree of the orphans’ court is reversed and set aside at costs of appellee; the report of the auditor is confirmed absolutely, and the record is remitted to be proceeded in accordingly.