Mr. Justice Paxson
delivered the opinion of the court, April 14, 1884.
The first five assignments of error are to the findings of fact by the master. It is unnecessary to discuss these assignments in detail for the reason that no clear error in the master’s findings has been pointed out; on the contrary the evidence more than sustains his conclusions. Its careful examination tends strongly to show that Mrs. Peiffer signed the deed of trust in ignorance of its legal effect; that she had no intention of depriving herself of all control of her property in the future; and that the brother in whom she confided misled and deceived her. The idea of placing her entire propert}' beyond her control never occurred to her mind, so far as the evidence shows until it was suggested to her by others. Her only object was to have Mr. Burkholder removed as trustee. Burkholder was trustee of a mortgage, the interest of which was payable to her. For some reason she did not wish him to receive the interest. The appellant spoke to her upon the subject. This is what [534]*534occurred according to his own statement: “Mrs. Peiffer wanted Burkholder put out of the trusteeship; he had been trustee in the mortgage. I told her that I did not know; she did not want him to have any of her money in hand, to'collect her interest. I told her that I could not tell, that I was not versed in such matters. I told her if it was her desire I would see counsel, and would see what was best to be done in the matter. She told me to do so. I called on Mr. Green,” &c.
It will thus be seen that Mrs. Peiffer authorized the appellant to consult Mr. Green only about having Mr. Burkholder removed as trustee of the mortgage. What he did is best told by Mr. Green, whom the appellant called as a witness. He said: “Sometime in March 1878, John S. Rick called in reference to making a declaration of trust of his sister Mrs. Magdalena Peiffer, who was at the time living in Stouchsburg. He was living in Port Clinton, and had just been up to see Mrs. Peiffer. He said that Mrs. Peiffer wanted to fix her property some way that she would not be subject to annoyance on the part of persons who might desire to borrow money of her. I told him that I knew of no other way of doing this except by a declaration of trust;” &c.
The appellant does not appear upon his own showing to have said a word to his counsel upon the subject as to which he was authorized to consult him. Instead of doing so he introduces an entirely different matter, and informs counsel that Mrs. Peiffer wanted “ to fix her property some way that she would not be subject to annoyance on the part of persons who might desire to borrow money of her.” • It is not too much to say in view of this that the idea of this trust deed originated in the brain of the appellant, and that the burden of proof is upon him to show that it was the free and uncontrolled act of Mrs. Peiffer and made with a full knowledge on her part of its force and effect.
With such a beginning it is not difficult to see the end. Mrs. Peiffer was taken to Mr. Green’s office and executed the deed in question. She says, in which she is corroborated by her sister, that she was told the deed could be changed, that is, “she could take it back at any time.” The appellant and Mr. Green testified they told her that if she made a trust it would be irrevocable, and could not be changed like a will. If Mrs. Peiffer signed the deed under the representation that it could be revoked, then a fraud was practiced upon her ; if under the advice that she could not insert a power of revocation, she was wrongly advised; she acted under a mistake, partly of law and partly of fact; she was misled by those whose duty it.was tofinform her, and upon whom she had a right to rely with confidence. It is true the deed was read [535]*535over to her, and if the rights of third parties had intervened she might perhaps have been bound. But no third parties are interested in this case. The deed was purely voluntary; no present interest passed to any one. It is not difficult to understand that the reading of the paper would afford her but little light. She was an ignorant old woman, and the technical phraseology of a deed could well be misunderstood by such a person.
Not only was this deed irrevocable in its terms, but it was improvident. Judging from the amount of the estate the income could not much exceed three hundred dollars. While this sum might be ample during health, sickness or other causes might render it wholly inadequate. Circumstances might arise where it would require the whole income to pay the wages of an attendant. Yet under the deed there is no power to provide for any extraordinary expenditure, however essential to her life, comfort or health.
The sixth assignment alleges that “the court erred in confirming the master’s report on the ground that the instrument is revocable under the ruling in Frederick’s Appeal.”
The case in hand is upon all fours with Frederick’s Appeal (2 P. F. S., 338), and if that case is still law, the court below committed no error. It was held that the instrument was in effect a mere power of attorney; an instrument of agency and revocable at pleasure; that the deed was made for the grantor’s own personal convenience; that the trustees were to account to him for all they did under the powers vested in them, and that no beneficial interest was to vest in his children till after his death. A disposition of property to take effect after the grantor’s death, is testamentary, and therefore revocable. The decision in Frederick’s Appeal did not rest upon the form of the instrument merely. It was decided distinctly upon the ground that the conveyance was without consideration; that it was purely voluntary, to promote the convenience and protect the interests of the grantor; that it passed no present interest, and as to those who were to be benefited after his death, “it was a mere covenant for posthumous gifts, and as such nudum pactum.”
It is said, however, in the case in hand, a present interest passed to the appellant. This scarcely rises to the dignity of an argument. The interest is only to take effect after the death of Mrs. Peiffer. His possession is that of a trustee merely, not that of a beneficiary under the deed. For his lawful services as trustee, and for money properly expended, he is entitled to be reimbursed out of the trust estate.
We are unable to see that Frederick’s Appeal is in conflict with the earlier cases of Dennison v. Goehring, 7 Barr., 175, [536]*536and Greenfield’s Estate, 2 Harris, 489. The first case was distinguished by the learned judge who delivered the opinion in Frederick’s Appeal, and we may say in addition that in Dennison v. Goehring a present interest passed under the deed to some of the beneficiaries, while in Frederick’s Appeal, as before stated, no such interest passed, but on the contrary the deed was only for the convenience of the grantor. Greenfield's estate was not referred to in the opinion in Frederick’s Appeal, although cited by the appellees in that case. It is to be observed, however, that no attempt appears to have been made by Mrs. Greenfield in her lifetime to revoke the trust, nor did her will in terms revoke it, so far as I can gather from the report of the case. Had the deed contained an express power of revocation, her executor after her death would have no standing to enforce such clause unless Mrs. Greenfield had done so by a deed in her lifetime, or by her will to take effect after her death.
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Mr. Justice Paxson
delivered the opinion of the court, April 14, 1884.
The first five assignments of error are to the findings of fact by the master. It is unnecessary to discuss these assignments in detail for the reason that no clear error in the master’s findings has been pointed out; on the contrary the evidence more than sustains his conclusions. Its careful examination tends strongly to show that Mrs. Peiffer signed the deed of trust in ignorance of its legal effect; that she had no intention of depriving herself of all control of her property in the future; and that the brother in whom she confided misled and deceived her. The idea of placing her entire propert}' beyond her control never occurred to her mind, so far as the evidence shows until it was suggested to her by others. Her only object was to have Mr. Burkholder removed as trustee. Burkholder was trustee of a mortgage, the interest of which was payable to her. For some reason she did not wish him to receive the interest. The appellant spoke to her upon the subject. This is what [534]*534occurred according to his own statement: “Mrs. Peiffer wanted Burkholder put out of the trusteeship; he had been trustee in the mortgage. I told her that I did not know; she did not want him to have any of her money in hand, to'collect her interest. I told her that I could not tell, that I was not versed in such matters. I told her if it was her desire I would see counsel, and would see what was best to be done in the matter. She told me to do so. I called on Mr. Green,” &c.
It will thus be seen that Mrs. Peiffer authorized the appellant to consult Mr. Green only about having Mr. Burkholder removed as trustee of the mortgage. What he did is best told by Mr. Green, whom the appellant called as a witness. He said: “Sometime in March 1878, John S. Rick called in reference to making a declaration of trust of his sister Mrs. Magdalena Peiffer, who was at the time living in Stouchsburg. He was living in Port Clinton, and had just been up to see Mrs. Peiffer. He said that Mrs. Peiffer wanted to fix her property some way that she would not be subject to annoyance on the part of persons who might desire to borrow money of her. I told him that I knew of no other way of doing this except by a declaration of trust;” &c.
The appellant does not appear upon his own showing to have said a word to his counsel upon the subject as to which he was authorized to consult him. Instead of doing so he introduces an entirely different matter, and informs counsel that Mrs. Peiffer wanted “ to fix her property some way that she would not be subject to annoyance on the part of persons who might desire to borrow money of her.” • It is not too much to say in view of this that the idea of this trust deed originated in the brain of the appellant, and that the burden of proof is upon him to show that it was the free and uncontrolled act of Mrs. Peiffer and made with a full knowledge on her part of its force and effect.
With such a beginning it is not difficult to see the end. Mrs. Peiffer was taken to Mr. Green’s office and executed the deed in question. She says, in which she is corroborated by her sister, that she was told the deed could be changed, that is, “she could take it back at any time.” The appellant and Mr. Green testified they told her that if she made a trust it would be irrevocable, and could not be changed like a will. If Mrs. Peiffer signed the deed under the representation that it could be revoked, then a fraud was practiced upon her ; if under the advice that she could not insert a power of revocation, she was wrongly advised; she acted under a mistake, partly of law and partly of fact; she was misled by those whose duty it.was tofinform her, and upon whom she had a right to rely with confidence. It is true the deed was read [535]*535over to her, and if the rights of third parties had intervened she might perhaps have been bound. But no third parties are interested in this case. The deed was purely voluntary; no present interest passed to any one. It is not difficult to understand that the reading of the paper would afford her but little light. She was an ignorant old woman, and the technical phraseology of a deed could well be misunderstood by such a person.
Not only was this deed irrevocable in its terms, but it was improvident. Judging from the amount of the estate the income could not much exceed three hundred dollars. While this sum might be ample during health, sickness or other causes might render it wholly inadequate. Circumstances might arise where it would require the whole income to pay the wages of an attendant. Yet under the deed there is no power to provide for any extraordinary expenditure, however essential to her life, comfort or health.
The sixth assignment alleges that “the court erred in confirming the master’s report on the ground that the instrument is revocable under the ruling in Frederick’s Appeal.”
The case in hand is upon all fours with Frederick’s Appeal (2 P. F. S., 338), and if that case is still law, the court below committed no error. It was held that the instrument was in effect a mere power of attorney; an instrument of agency and revocable at pleasure; that the deed was made for the grantor’s own personal convenience; that the trustees were to account to him for all they did under the powers vested in them, and that no beneficial interest was to vest in his children till after his death. A disposition of property to take effect after the grantor’s death, is testamentary, and therefore revocable. The decision in Frederick’s Appeal did not rest upon the form of the instrument merely. It was decided distinctly upon the ground that the conveyance was without consideration; that it was purely voluntary, to promote the convenience and protect the interests of the grantor; that it passed no present interest, and as to those who were to be benefited after his death, “it was a mere covenant for posthumous gifts, and as such nudum pactum.”
It is said, however, in the case in hand, a present interest passed to the appellant. This scarcely rises to the dignity of an argument. The interest is only to take effect after the death of Mrs. Peiffer. His possession is that of a trustee merely, not that of a beneficiary under the deed. For his lawful services as trustee, and for money properly expended, he is entitled to be reimbursed out of the trust estate.
We are unable to see that Frederick’s Appeal is in conflict with the earlier cases of Dennison v. Goehring, 7 Barr., 175, [536]*536and Greenfield’s Estate, 2 Harris, 489. The first case was distinguished by the learned judge who delivered the opinion in Frederick’s Appeal, and we may say in addition that in Dennison v. Goehring a present interest passed under the deed to some of the beneficiaries, while in Frederick’s Appeal, as before stated, no such interest passed, but on the contrary the deed was only for the convenience of the grantor. Greenfield's estate was not referred to in the opinion in Frederick’s Appeal, although cited by the appellees in that case. It is to be observed, however, that no attempt appears to have been made by Mrs. Greenfield in her lifetime to revoke the trust, nor did her will in terms revoke it, so far as I can gather from the report of the case. Had the deed contained an express power of revocation, her executor after her death would have no standing to enforce such clause unless Mrs. Greenfield had done so by a deed in her lifetime, or by her will to take effect after her death. Be that as it may, it is certain that Frederick’s Appeal was-intended to create an exception to the general rule that an instrument which conveys an estate in presentí to a trustee, and is intended to take effect upon its deliver}”, even though the grantor is the only beneficiary during his life, cannot be considered testamentary or revocable. The later decisions carefully distinguish those cases where a present beneficial interest is given to third persons. Thus, in' Ritter’s Appeal, 9 P. F. S., 9, Frederick’s Appeal was held not to apply for the reason that a present interest was vested in the wife. The same distinction was observed in Fellows’ Appeal, 12 Norris, 470. In neither of them is there an intimation that Frederick’s. Appeal is not still law.
As I have before said the circumstances of this case point clearly to the fact that this deed was not executed understandingly. To this must be added the fact that the deed was not only irrevocable, but was also improvident. There is a line of English cases which hold that in the absence of any motive for an irrevocable gift, .it is unreasonable that a voluntary conveyance should be without a power of revocation : Naldred v. Gilham, 1 P. Wms., 577; Huguenin v. Basely, 14 Vesey, 273; Coutts v. Acworth, L. R., 8 Eq., 558; Hall v. Hall, L. R. 8 Chan. Ap., 430. In the last case the rule was laid down as follows: “ The absence of a power of revocation in a voluntary deed, not impeached by any undue influence, is of course material where it appears that the seller did not intend to make an irrevocable settlement, or where the settlement is of such a nature, or was made under such circumstances as to be unreasonable and improvident, unless guarded by a power of revocation.” Our own well considered case of Russell’s Appeal, 25 P. F. S., 269, sustains the same view. It [537]*537was there said that “ the absence of the power of revocation in the deed, and failure of counsel to advise it,'arc circumstances with others to show that the act was not done with deliberate will.”
It would be unwise in us to hold that a person may not make an irrevocable gift, nor would the authorities sustain it. There may be instances in which it is to the highest interest of a man to place his estate beyond his control irrevocably. Ho may do so to protect himself against his own infirmities. But the exercise of such a power should be closely guarded, particularly when exercised by ignorant people without any necessity or especial motive for denuding themselves of their property. The intent to make the gift irrevocable should be clear. As was said in Russell’s Appeal: “In the absence of a certain intent to make the gift irrevocable, the omission of a power to revoke is prima facie evidence of a mistake, and casts the burthen of supporting the settlement upon him who, without a consideration or a motive to benefit him or protect the donor, claims a mere gratuity against one who is sui juris, and capable of taking care of his own estate.”
If Mi's. Peilfer intended to make a settlement of her property, which is more than doubtful, slic ought at least to have been advised that it was lawful to insert a clause of revocation in the deed. On the contrary slie was advised that it could not be done, according to the appellant’s own version of the affair. It is evident she executed tlie paper under a mistake of both law and fact, which is the most charitable view we can take of the case. That equity will relieve under such circumstances is settled by Wheelen’s Appeal, 20 P. E. S., 410.
The decree is affirmed, and the appeal dismissed at the costs of the appellant.