Simon's Estate

20 Pa. Super. 450, 1902 Pa. Super. LEXIS 264

• Court: Superior Court of Pennsylvania
• Decided: July 10, 1902
• Docket: Appeal, No. 27
• Status: Published

Opinion

Opinion by

Rice, P. J.,

By tbe will of John Simon, deceased, there became vested in his son, John F. Simon, subject to the gift of the whole estate to the testator’s widow for life or widqwhood, one full seventh part and one sixth of two thirds of another seventh part of the entire estate, real and personal. Another one seventh became vested in Rebecca Slack, a daughter of the testator. The disposition of the other shares of one seventh each need not be referred to. By codicil the testator provided that if his son John should die seized of the whole or any part of his share, said share should go to his son’s children and issue per stirpes, and in default of issue, to his executors in trust to pay the net income of said share to his son’s wife for life, and the principal at her death to testator’s grandchildren then living, but with full power to his son to alien the whole or any portion of his share or interest in the estate, if he should see fit to do so. The testator empowered his executors to sell all or any part of his real estate, but provided: “ This power of sale, however, is not to be construed to work an equitable conversion, or change the nature of any property.”

At tbe audit of the final account of the administrator d. b. n. c. t. a. of the estate of the testator, involving the distribution of a fund derived from sales of real estate, the share, to which, under the will, John F. Simon would have been entitled, was claimed by Madge Kessler, this appellant. John F. Simon also claimed it notwithstanding his deed conveying his interest in tbe real estate, to which we shall presently refer. At the same audit, Julia A. Britton claimed by deed from Rebecca Slack the share to which, under the will, the latter would have been entitled. Rebecca Slack also claimed it notwithstanding her deed. Although the proceedings were necessarily informal, there being no pleadings, yet in the presentation of the evidence relative to each of these shares substantially the same course was pursued, as if a formal issue had been made up between Madge Kessler and John F. Simon and a similar issue between Julia A. Britton and Rebecca Slack, and the proceeding in each case had been in form, as it was in effect, a proceeding to determine the ownership of each of these shares. In view of the mode of procedure followed at the hearing of the two claims in the court below, as shown by the transcript of the evidence filed by the auditing judge, we feel warranted in confining our attention to the evidence adduced on the hearing of the appellant’s claim to the share of the testator’s real estate devised to John F. Simon. Moreover, although her title was derived through Julia A. Britton, we cannot see that her rights can be affected by the fraud, if there was a fraud, by means of which Mrs. Britton obtained Mrs. Slack’s share.

The appellant’s title to the share is derived through the following conveyances: October 24, 1888, deed, John Simon and wife to Julia H. Britton for his share of the testator’s real estate, recorded on October 30, of the same year ; November 24, 1896, deed, Julia A. Britton to Edward Kessler for the same premises; April 15, 1897, deed, Edward Kessler and Madge, his wife, to Nicholas J. Fitzgerald; same date, deed, Nicholas J. Fitzgerald to Madge Kessler. The auditing judge concluded from the evidence, that the first mentioned deed was fraudulently procured by Mrs. Britton, and that there was a resulting trust in favor of the grantor; also, that neither Edward Kessler, nor Madge, his wife, was a bona fide purchaser for value without notice. The court dismissed the exceptions filed by Madge Kessler and confirmed the adjudication, made after a rehearing, awarding the share of the fund in dispute to John Simon. The principal propositions, to which the argument of the appellant’s counsel was addressed, are, that the circumstances of the execution of the deed from Simon to Mrs. Britton show that there was an absolute sale to her free from any trust; that tbe evidence against the deed was insufficient in law, because it was not clear, precise and indubitable, because it rested on tbe uncorroborated testimony of the grantor, and because it showed no fraud on the part of the grantee ; that even if the testimony of Simon be credited, he cannot recover, because, according to his own story, he made the deed to defraud his creditors; and that his claim is barred by his delay in seeking relief. It seems to us appropriate, before entering upon a discussion of these objections to the adjudication, to determine whether Madge Kessler is in a position which gives her a right to raise them.

It appears, that at the date of her deed to Edward Kessler, Julia A. Britton was a married woman; and as her husband did not join in the deed, it was prima facie void, not merely voidable at his election. The Act of June 8, 1893, P. L. 344, did not change the law in this respect, but expressly provided that a married woman “may not mortgage or convey her real property unless her husband join in the convej-anee.” But it further appears that on February 11,1899, the court of common pleas made a decree declaring Julia A. Britton entitled to all the rights and privileges of a feme sole trader. Such decree and the certificate issued pursuant thereto are conclusive evidence that on the day it was entered, and from that day until revoked by the court, the feme covert was entitled to all the privileges of a feme sole trader conferred by the acts of 1718 and 1855 ; but we cannot adopt the suggestion of appellant’s counsel as to its relation back to the date of the separation of the parties. We cannot see that it has any effect, either as evidence or otherwise, upon the question of Mrs. Britton's status at the date of her deed to Kessler. True, a decree is not indispensable to the enjoyment of the privileges conferred by the feme sole trader statutes; all that is necessary is proof of the facts which would entitle her to such decree: Black v. Tricker, 59 Pa. 13 ; Elsey v. McDaniel, 95 Pa. 472; Orrell v. Van Gorder, 96 Pa. 180. But there is no finding by the auditing judge that at the date of the deed in question the facts existed which entitled her to the privileges; and if her husband testified to the truth in stating the cause of his separation from her, we are not prepared to say that there was such neglect or desertion on his part as is contemplated by the act of 1855. In King v. Thompson, 87 Pa. 365, Mr. Justice Paxson said: “ There must be desertion or a neglect or. a refusal on the part of the husband — something that involves the wilful nonperformance of a duty on his part.” It seems unnecessary, however, to .further consider the evidence bearing upon the question of his desertion; for it is well settled by the decisions that one who has been decreed a feme sole trader has power to convoy her real estate without her husband joining in the deed: Wilson v. Coursin, 72 Pa. 306; Foreman v. Hosier, 94 Pa. 418; Moninger v. Ritner, 14 W. N. C. 99. See further, 8 P. & L. Dig. of Dec. col. 13910. So that, whatever may have been the status of Mrs. Britton at the date of the delivery of her deed to Edward Kessler, it is clear that at the date of this distribution she had the same power to convey the share in question or to ratify the conveyance she had previously made, as if she had become discovert. The cases which decide that a married woman’s deed, being absolutely void, cannot be ratified by any subsequent act short of a new deed subsequently acknowledged in the form required by the statute, have reference to acts done while the disability of coverture remains. After the disability has been removed, ratification may be implied from acts less solemn, as was clearly shown by Judge Barker in his review of the cases in Jourdan v. Dean, 175 Pa. 599. Mrs. Britton appeared as a witness in support of Mrs. Kessler’s title to the share devised to John Simon and of her claim to the share of the fund for distribution represented thereby. She was not only a witness but was also a party to the proceeding, claiming another portion of the fund. If she desired to repudiate the deed she had given and claim the John Simon share of the fund also, then was the time for her to speak; but she could not be compelled to take that position against her will: Meade v. Clarke, 159 Pa. 159. She unequivocally elected not to do so, but to affirm her sale, so far, at least, as this particular fund is concerned. She is bound by her decision, and no one else has any standing to complain. We conclude, therefore, that Madge Kessler has a right to be heard in opposition to the decree awarding the share in question to John Simon. She was entitled to it, if he was not.

It will be appropriate, also, to dispose of the question raised by the thirteenth assignment of error, before entering upon a discussion of the merits of the case as disclosed by the oral testimony.. It appears that in 1893 a bill in equity for the partition of a piece of land held by John Simon, Sr., and William Simon as tenants in common was filed in the court of common pleas. Julia Britton and others were plaintiffs and William Simon and others, including John Simon, this appellee, were defendants. The bill averred the tenancy in common; the death of John Simon, Sr., seized of an undivided one-half part; the devises of his will including the devise to John Simon as hereinbefore set forth; that all the parties named in the said will were then living; that a small portion of the land had been sold; that no partition or division of the remaining portion had been made between the parties interested; and prayed that a partition of the same “be made between the estate of John Simon, deceased, and the said William Simon.” It is stated in the appellee’s paper-book that answers admitting the facts were put in by the defendants ; but these are not printed. It appears, however, that a master was appointed, who, after hearing, reported, inter alia, as follows: “John Simon’s one-half interest is vested in the parties to this suit under the provisions of his will .... All the parties interested desire that the partition be made in conformity with said prayer, and for that purpose said real estate should be divided into two purparts of equal value, one of which should be allotted to the parties interested under the will of John Simon, deceased, and the other to the said William Simon.” Accordingly he divided the land into two purparts, each of which was of the value of $25,000, and allotted purpart number one to Sarah Simon for life or widowhood, “ and at her death or marriage said purpart is awarded to the parties in remainder, as fully appears by and under the terms and conditions of the will of the said John Simon, deceased.” He concluded his report by saying, “ and as the parlies interested in the estate of the said John Simon, deceased, take the land by and under the provisions of his will, the master is of the opinion and therefore reports that no assurances or conveyances are necessary for carrying iuto full effect the decree of the court confirming the awards and allotments herein made.” The parties accepted service of notice of the filing of the report in writing, wherein they stated that they did not desire to file any exception thereto, but approved the same. Accordingly the court confirmed and approved the report and decreed that the “partition remain firm and stable in vesting the title to the purparts in severalty in and to the several and respective parties to whom and in and by the said report the said purparts have been awarded and allotted.” The learned auditing judge in his final adjudication held that this record was in absolute harmony with the claim of John Simon, that he had never sold his interest, and was a distinct confession by Mrs. Britton that she had never bought it, and was in the nature of a complete estoppel which concluded the case.

We express no opinion as to the correctness of the foregoing conclusion, so far as it relates to the land awarded to the parties interested under the will of John Simon. But we fail to see how, by any proper application of the rule as to res judicata, the decree can be held to be a conclusive adjudication as to the validity of a deed not before the court and as to land not embraced in the partition. The fact, if it be a fact, that Mrs. Britton saw fit not to set up her title to the John Simon share of the land which was the subject of that suit cannot, of itself, estop her to set up her title to the John Simon share of other lands: Ihmsen v. Ormsby, 32 Pa. 198; Kapp v. Shields, 17 Pa. Superior Ct. 524, and cases there cited. If she had set up her title under the deed from him and the decision had been against her or if it appeared that the fund for distribution consisted wholly or in part of the proceeds of the sale of the purpart awarded to the parties in interest under the will of John Simon, a different question would be presented. After a careful examination of the evidence and the record, we fail to find either of these facts. To make a matter res judicata there must be, amongst other things, identity of subject-matter, and this appears to be lacking, or at least is not shown here. We therefore sustain this assignment of error.

In the view we take of the case it is unnecessary to recite at length the testimony upon which the appellant relies to sustain the deed from John Simon to Julia Britton. But we are clearly warranted in saying that if the testimony of Mrs. Britton, A. J. Dickinson, A. J. Maloney and T. Fernley Brooks (they were the only persons present besides John Simon) as to what occurred on the day the deed was executed is to be believed there was an absolute sale for a valuable consideration, and tbe transaction was free from fraud or trust. In refusing to adopt this conclusion, the learned auditing judge was apparently very much influenced, amongst other things, by the supposed discrepancy between the value of the property and the consideration expressed in the deed. True, it was admitted at the audit “ that the estate consists of about $60,000 of real estate and $10,000 of personalty,” according to which estimate John Simon’s share of the entire estate was worth then in the neighborhood of $11,000. But it is objected that there is no evidence as to the value of his share of the real estate at the date of the deed, or as to the knowledge or belief of thet parties upon that subject; and it is to be borne in mind that this was nearly ten years before the life estate of the testator’s widow terminated, and, of eoui-se, it was uncertain when it would terminate. In view of the meager and unsatisfactory evidence as to the value of the share in October, 1888, we think there is great force in this objection. But it is not our purpose to attempt to show that the court ought to have accepted the version of the transaction which the appellant’s witnesses gave. It is sufficient for present purposes to show, that there was a positive denial that a fraud was practised upon the appellee. Nothing to impeach the deed was admitted by silence or otherwise. The burden of proof rested on John Simon, and was the same as if he had been plaintiff in a bill in equity to which a responsive answer had been filed, which was supported by the testimony of all the witnesses present at the execution of the deed except himself. If in this situation, the evidence introduced by him was insufficient in quality or quantity to warrant a chancellor in decreeing a cancelation of the deed, he must fail. The deed then stands as conclusive evidence of the appellant’s title, and consequent right to the fund. In other words, it is not sufficient for him to raise a doubt as to the truth of the version of the transaction given by her witnesses. We therefore proceed to a review of his testimony.

John Simon testified on three different occasions as to the circumstances under which and the purpose for which the deed from him to Julia Britton was given. The first occasion was in July, 1892, in a proceeding to remove the executors. Being asked to relate the circumstances that induced him to transfer lfis interest in his father’s estate to his sister, he said: “ At the time I made this assignment, I owed several people some money, and I had a sale of my stock and crops, and there was not sufficient money to pay them; and I made this assignment to keep them from selling my interest and give me a little time to make up the money.” There was nothing elicited upon his cross-examination to qualify this unequivocal admission made under oath, within four years after the date of the deed. But further on in his direct testimony, when asked to relate what occurred in the lawyer’s office where the deed was executed, he said: “ I sold my interest to her for the sum of $1,000. She gave me a check with William Bender’s name on, for the amount, indorsed by Mr. Dickinson. The check was taken from me again, going down the steps, before I reached the street, and after I had left Mr. Maloney’s office.”

The second occasion upon which he testified as to his purpose in giving the deed was at the first hearing, in the present proceeding, which was eleven years after the date of the deed. On this occasion he testified in explanation of the transaction, that the rent for a farm he had leased was in arrears, that a levy had been made by his landlord on the stock and other personal property, and that thereupon, in the summer of 1888, he made a bill of sale of his effects to his sister Mrs. Britton, she engaging with the agent of his landlord to pay the rent in his stead. “ After that ” — we now quote from his testimony— “ Mrs. Britton came to my place. Mrs. Britton, my wife and I were in the house, and I asked Mrs. Britton if she would take my interest in the estate and hold it in case anything should happen to me for the benefit of my wife and children, so that they could get what was coming to me, as father wished by his will. She said she would.” A week later, but not by previous appointment, he, in compan}*- with Mrs. Britton and one Dickinson, who seems to have had very much to do with the management of her affairs, went to a clothing store in Philadelphia. We again quote from his testimony: “We went to the clothing store, and after we came out of that, I asked Mrs. Britton if she would make this paper out, that is, the transfer from us to her. Q. That is the transfer you mean of what now — of your interest in your father’s estate ? A. Of my interest in my father’s estate for the benefit of my wife and children. Q, That is, in trust for your wife and children? A. Yes, sir;' Mr. Dickinson then spoke up and said lie did not think it could be done. So we walked up Market street to Sixth and down to Chestnut to Mr. Maloney’s office, and we stood out on the street and" Mr. Dickinson went upstairs, and he came down and said it was all right.” lie further testified, that when they entered Mr. Maloney’s office, the latter “ had the deed and a book in his hand and there was a man there making out a deed; ” that he, the witness, gave no instructions as to the contents of the deed; that before it was finished Dickinson gave him the Bender check for $1,000, referred to in his former testimony; that Mr. Maloney asked him to sign the deed, which he did; and that after they went out his sister grabbed the check from his hand and said, “ That is the way we fixed Aunt Eliza.” Being asked what he said or thought of this rather remarkable incident, he gave the equally remarkable answer, that he thought it was merely a form and said nothing. Upon cross-examination he stated in the most positive and unequivocal terms that the transfer was made at his suggestion. We quote from his testimony: “ Q. At whose suggestion ivas this transfer made ? I am referring to this deed. A. It was mine. Q. It was at your own suggestion ? A. It was at my own suggestion. Q. Mrs. Brit-ton never endeavored to persuade you to make any such assignment? A. I asked her to take it and hold it in trust for my wife and children, in case anything should happen, my wife would get the benefit of it according to father’s will. Q. What do you mean by that — in trust for your wife and children? A. To hold this until the time that the estate was settled up. Q. Why did you want that done ? A. In case anything happened to me. Q. What do you mean by that — in case anything happened to you ? A. I do not know it was that I would go in business anytime and would not succeed, or what it was. You don’t know what is going to happen.” It is to be borne in mind, that, according to the foregoing testimony, the first suggestion of the transfer was made by John Simon, himself, and this was about a week before the deed was executed, which was on October 24, 1888.

• Upon consideration of exceptions to the first adjudication filed by the auditing judge, the case was referred back to him for further proceedings in the nature of a rehearing. In the opinion of the court in banc upon these exceptions, Judge Pen-ROSE said: “John Simon admits that the conveyance-was suggested by himself, his motive being, as he asserts, to protect his wife and children, in case anything should happen to him; in other words, as his testimony discloses, to put it beyond the reach of existing or contemplated creditors. Such a conveyance, it need scarcely be said, though voidable by creditors defrauded by it, is perfectly good as between the parties, and the absence of consideration is wholly immaterial.” That these comments upon his former testimony influenced his testimony upon the rehearing, either by refreshing his recollection or otherwise, cannot be asserted as a fact. But it is a fact that at the rehearing he testified that in July or August, 1888, his sister stated to him — -we quote from his testimony— “ that as I had trouble with my interest in the estate before, it would be wise to let her have it in case I should be in difficulties, or that I should die, my wife and children would be better off than before.” This was inconsistent with his testimony on the former hearing. He admitted, however, that this was several weeks before the signing of the' deed, and that the final suggestion pursuant to which the transfer was made came from him. He also introduced into the evidence a motive for the transfer not before suggested, as appears by the following question and answer : “ Q. What was your purpose in transferring your stock on this farm and your interest in the estate and everything to your sister — was it that your debts should be paid or what? A. For my debts to-be paid.” But he immediately qualified this by saying: “ I done it for this reason, in case I should get into business again and meet with reverses, that my wife and children should get what father left.”

We remark, first, with regard to his testimony that it is not clear and consistent in material particulars. What did he mean when he said that he made the conveyance in order that his debts might be paid ? If he meant that it was to secure his sister in the undertaking she had entered into to pay some of his debts, how can this be reconciled with other portions of his testimony? Is it to be inferred from his testimony that he intended the beneficial interest in the property to go. to his wife and children in any event or only in the event of something happening to him ? Viewing his testimony as a whole, the latter is the more probable theory, but it cannot be denied that some portions of his testimony would seem to support the former theory. Whether the transfer was first suggested by him or by his sister was a question of the highest importance. If the suggestion came from her and was the inducement for his action, it is almost inconceivable that he should have forgotten -that most important fact at the first hearing, when his attention was specifically directed to that matter, and when he testified in the clearest and most positive terms, both in the direct examination and in his cross-examination that he suggested it. Second, if the testimony at the hearing before the auditing judge is to be construed as meaning that what he had in view was the happening of business reverses in the future, and this only, then it is utterly irreconcilable with the testimony he gave in the proceeding to remove the executors. This was less than four years after he had given the deed. Presumably his recollection of the transaction and of his indebtedness was more distinct then than it was eleven years after the date of the deed. As to his indebtedness, he testified as follows: “Q. How much were you indebted at the time you made this assignment, that you were unable to pay? A. That is impossible forme to tell. Some of them I have paid since, and some I have not. When I get $10.00 I go and pay, and have paid over $100 this week. Q. Can you tell how much you owe now ? A. Not over $300; except what I owe my mother and the estate; except a judgment note of about $677 to William Wolstencroft and Sons. Q. Have you ever demanded back the assignment of your interest? A. No, sir. Q. Do you know how much you owe the estate. A. I do not know the exact amount; they are in judgment notes I have given. Q. That is equally true of the amount you owe your mother? A. Yes sir.' Q. When your mother loaned you money, she gave it to you herself ? A. Yes, sir. Q. How was it you got money from the estate ? A. The money that I got from the estate was money that I received from outsiders upon my notes indorsed by my father; and the estate paid them? Q. You don’t know whether William or your mother paid them? A. I do not. The notes were returned to me and I gave a judgment note for them.” It cannot be said that when lie testified that he made the assignment to keep his creditors from selling his interest and give him time to raise the money, he did not understand the meaning of his words. There is nothing to show that hi that proceeding he had any motive for falsifying. To say that he had, and that it influenced his testimony would not help the matter; it would only go to show that he was willing to suit his testimony to the exigencies of the case and is not a credible witness.

To sustain a decree by which, in effect, a deed which had stood on record without attack for eleven years, is set aside at'the instance of the grantor, the evidence must be clear, precise and indubitable; by which is meant, that “ it shall be found that the witnesses are credible, that they distinctly remember the facts to which they testify, that they narrate the details exactly, and that their statements are true: ” Thomas & Sons v. Loose, 114 Pa. 35; Spencer v. Colt, 89 Pa. 314. It is unnecessary to cite other authorities in support of this statement of the law. The rule is familiar and well established. It seems to us that the testimony of John Simon will not bear this test, and that we might end the discussion here. But if from his sworn declarations and admissions made on the three separate occasions above referred to, we were compelled to deduce a specific finding as to the purpose of the conveyance, we should be compelled to say, that he contemplated a secret trust, and that his purpose was, not merely to put the property beyond the reach of future creditors, so that in the contingency of his going into business and failing his wife and children would ha ve the benefit of it, but also to put it beyond the reach of existing creditors, at least temporarily. We do not see how this conclusion can be avoided without convicting him of wilful falsehood at the hearing when the transaction was freshest in his recollection, and when, so far as appears, he had no interest to serve by giving false testimony. As already suggested, to adopt the latter theory would not help his case. We remark in addition that the testimony of his wife at the first hearing is not necessarily inconsistent with the foregoing conclusion. A man who has made a voluntary conveyance of all his property in fraud of creditors cannot elect to set the conveyance aside, nor enforce a secret trust for his own benefit, or, as we shall presently see, for the benefit of his wife and children. His lips are closed. This, indeed, is in obedience to the general piinciple that where the parties to a fraudulent contract have fully executed it themselves, courts of justice will not interfere to unravel their doings; but, considering them in in pari delicto, will leave them bound as they found them. The application of this principle to the case of a conveyance in fraud of creditors is unquestionable. We need not cite the numerous authorities in which it has been made; but the language of the Supreme Court in Murphy v. Hubert, 16 Pa. 50, is so closely pertinent here that we quote it: “ If there be a point settled on reason and authority, it is that a deed intended to defraud creditors, although void as against creditors, yet is valid as against the grantor, and those for whose benefit it is designed, whether it be the grantor himself, his child or children, or a stranger. The grantee holds the property as against the fraudulent grantor and his beneficiaries, the latter being considered in the light of volunteers, without consideration and consequently placed in no better situation than the grantor, discharged from all secret trust whether in writing or by parol.” It is no answer to say that the grantor hoped and intended to pay his debts ultimately, if the intended effect of the collusive assignment was to withdraw his property from the reach of his creditors for a time, and thus hinder and delay them. To hold otherwise would be to put it in the power of the debtor to impose his own terms of payment regardless of the rights of his creditors, which is not permissible under the statute of 13 Elizabeth. See Hennon v. McClane, 88 Pa. 219, and the cases there cited.

There is another feature of the transaction, as presented by John Simon’s testimony, to be considered in connection with the foregoing. The fact that the transfer was made upon his own suggestion, and without any undue influence, persuasion or misrepresentation on the part of Mrs. Britton, we think is established by his own testimony. There is no finding by the auditing judge that he was deceived or misled as to the contents of the deed which he signed, or, even, that it differed in form from what he intended it to be. We do not see how it can be said that she procured the deed by fraud. Her fraud upon him, if there was a fraud, consists in the breach of her parol promise. But this, according to the doctrine of well considered cases, two of these quite recent, is not sufficient to make her a trustee ex maleficio. In Kellum v. Smith, 33 Pa. 158, decided in 1859, Mr. Justice Strong said: “It may in all cases be assumed that when a promise is made to buy or hold for another, confidence is invited and more or less reposed. So it is in every parol contract for the purchase of lands; but the statute of frauds would be worse than waste paper if the breach of the promise created a trust in the promisor, which the contract itself was insufficient to raise.” In Barry v. Hill, 166 Pa. 344, decided in 1895, the above language was quoted with approval. There the trial court rejected an offer to show that a certain assignment by deed of ground rents by John Bardsley to Thomas Gannon was made without consideration, upon the agreement between the parties that they were to be sold subject to the exclusive ownership of John Bardsley and that Thomas Gannon had no interest in them, and also as to these ground rents John Bardsley received the interest for his own use after the date of the assignment. It was contended on appeal that the proof, if received, would have established a trust ex maleficio in favor of Bardsley and, therefore, of his successors in the title. It was contended for the appellee that the proof offered would not establish a trust ex maleficio, and if it would, the trust was barred by the statute of limitations. Mr. Justice Green, who delivered the opinion of the Supreme Court, said: “ It seems to us that both of these objections are fatal to the offer. A trust ex maleficio can only result from some act of bad faith, and a mere refusal to perform a parol contract to hold or convey land is not sufficient to create such a trust.” After pointing out the fact that it was not proposed to prove that Gannon ever denied the alleged parol agreement, or that he made any effort to prevent Bardsley from taking the rents, or that he ever asserted title in, himself, or did any act in contravention of the agreement, Justice Green further said: “But even if the offer had gone further, and alleged a breach of the parol agreement, it would not have been sufficient.” The foregoing statement of the law was quoted with approval in the very recent case of Braun v. First German Evangelical Lutheran Church, 198 Pa. 152. See also Martin v. Baird, 175 Pa. 540.

Without further elaboration we conclude that John Simon has not established, by clear, precise and indubitable testimony, his right to the fund notwithstanding his deed, even though it be conceded, which is not clear, that Edward Kessler was not a bona fide purchaser for value. It follows that the share in question should have been awarded to Madge Kessler, the appellant. The decree awarding the share of the proceeds of sales of real estate, which under the will of John Simon, deceased, would have gone to John Simon, the appellee, is reversed so far as it relates to that matter, and it is now ordered and decreed that said share be awarded to Madge Kessler, the appellant ; and the record is remitted to the court below with directions to carry this decree into effect; the costs of the appeal to be paid by the appellee.