In re Estate of DAVID S. WILSON, Robert K. Wilson, maintained their home Deceased. Wills-Letter accompanying will-Precatory trusts Executor Purchase of testator's estate-Commissions- Fraud. Testator after making certain bequests left the balance of his estate to W, his brother, who was made executor. On the same day he wrote a letter to W, which was found in the box with his will, in which he "wishes" W to pay certain sums to B, which he says he feels "assured you (W) will try to carry out." The devise to W was an absolute one, and the effect of the letter, if carried out, would abrogate the devise and vest testator's estate in B instead of W. Held, that there was no trust condition imposed upon the executor by the requests of the letter and B was not entitled to share in testator's estate. The test in such a case is whether the words of the letter express merely the testator's wishes or whether they express his will; where an absolute estate is in terms given, precatory words which follow are treated as expressing the wish rather than the will. The fact that W treated B as the residuary legatee and conveyed to her part of the estate does not estop him from asking for a judicial interpretation of the papers or legally bind him to turn over the balance of the estate to B. The fact that an accountant purchased from a legatee certain personal property coming to her out of the estate at the appraised value and sells them to a third person to whom it had been offered, at an advance, is not of itself evidence of fraud or a violation of the trust relation. No. 76 May Term, 1907. Opinion by MILLER, J. Filed June 28, 1907. together on an estate jointly held by them. at Leetsdale, this county. He had been a widower for many years and had no children. Miss Baird is a niece of his deceased wife, and is also a second cousin. She made her home with the two brothers and became their housekeeper. He was possessed of a considerable estate; the account filed shows personal property of $101,190. 15, the great bulk of which is for distribution. In addition he owned differerent tracts of valuable real estate. He died on the 19th of February, 1906, leaving the following will. "I, David S. Wilson, of Leet township in the county of Allegheny and Commonwealth of Pennsylvania, do make and publish the following as and for my last will and testament: "I direct the undivided portion of the estate of Maria Wilson to be distributed as though I had died before that testatrix, thus giving my interest to the other members of our family in proper proportions. My real estate wherever situate I devise to my brother, Robert K. Wilson, his heirs and assigns; and my personal property I bequeath to the said Robert K. Wilson. Of this will I nominate and appoint the said Robert K. Wilson to be the executor. Witness my hand and seal July 13, 1892. D. S. WILSON. [Seal]" In the box where the foregoing will was found, but not attached to, or connected with it, was the following letter: "My dear brother Robert: "Out of the estate left you by my will of this date I want,you to do as follows: "Give H. M. Dougan my law library at Washington. "Let Mary M. Baird take what she desires of my clothes. "Let John C. Wilson have what he chooses of the deeds to Miss Baird recite that they are my books and instruments. made in pursuance of the requests contained in testator's letter above referred to. The decedent was a collector, and died possessed of a large quantity of valuable coins, most of which were in his box in the Fort Pitt National Bank; others were scattered about in the home; they were collected and appraised at their face value of $5,200. The accountant dealt with Miss Baird as residuary legatee, and as to these coins told her they belonged to her, took her to the bank and had the box opened in which they were gathered and pointed them out to her; the key to the box remained in his possession. Sometime after they were appraised he offered to buy them from her at the appraised value; but shortly thereafter withdrew his offer. Miss Baird then in July or August, 1906, opened correspondence in Washington, D. C., for the sale of these coins; but nothing was done by her in this direction, as she did not desire to sell them at auction, which seemed to be the information she obtained there. Then she took up the matter of further disposing thereof with D. Leet Oliver, a relative, to whom she offered them for $5,200; he declined to purchase; then she In addition, the accountant by deed dated May 15, 1906, has conveyed to Miss Baird for the consideration of one dollar, dece-offered them to S. Hudson Chapman of dent's undivided one-half interest in three Philadelphia at the appraised price; he actracts of land in Washington county, the cepted her offer; she communicated this first, located in South Strabane township, acceptance to the accountant, who therecontaining one hundred acres; the second, upon purchased them from her and paid located in Chartiers township, containing the appraised value thereof of $5,200. Some nine acres; the third, located in Blaine weeks later he sold this collection to Chaptownship, containing one hundred and six-man for $8,088; the latter by extensive ad teen acres. On the same day, for the same consideration, he conveyed to her the decedent's undivided 13-24 interest in 696 acres of land in Hocking county, Ohio. On the same day he conveyed to her decedent's undivided one-half interest in two tracts of land in the borough of Leetsdale, the one containing fifteen acres, the other one hundred and twenty-one perches, and received from her a deed for the title so conveyed for the same property, paying her the consideration of $30,000. This latter tract is the homestead, jointly owned and occupied by the decedent and Robert K. Wilson. vertising, elaborate cataloguing, and as he states, an unexpected bidding for the coins at public auction, realized the sum of $15,000. Through D. Leet Wilson, another brother, in behalf of Miss Baird, the attention of these coins had been brought to Mr. Chapman, and he was asked to state the conditions upon which he would dispose of them. The charges indicated by Chapman were a fee of $500 for examination and arrangement of the coins, all expenses of catalogu ing and advertising, and twenty-five per cent commissions. Chapman had estimated All them worth $12,000 at public auction; deducting advertising, cataloguing and commissions, the expenses above enumerated would have netted about $9,000 if they had been disposed of through his firm by public auction under normal conditions. In addition to the ordinary labor and responsibility incident to the settlement of this estate, the accountant and his counsel performed much labor in settling the decedent's account as executor of the estate of Eliza Shields. OPINION. The will of David S. Wilson is a formal instrument, declared by him to be his last will and testament; it clearly and concisely disposes of his entire estate to Robert K. Wilson. After its execution he wrote the letter, he sc says. In it he "wants" the devisee to do certain things, "out of the estate left you by my will." His "wishes" as expressed in the letter he felt "assured you will try to carry out." There is no attempt by the testator to redevise the estate already devised to his brother. The will concerns itself wholly with the disposition of the testator's estate; while the letter is a request that the devisee do certain things with the estate now made over to him. The letter is a re-affirmation of the will, for he says, "I have written the will as you find it in order to save all the trouble possible." There is no suggestion that it is a codicil to the will, or is to be considered a part of it. The fact that it was probated does not make it either a will or a modification thereof: Wall v. Wall, 123 Pa. 545; Bowlby v. Thunder, 105 Pa. 173. Granted that its probate impresses it as a testamentary paper, there is no trust or condition imposed upon the executor by the terms of the letter; the requests or desires therein expressed are in precatory words; they are to be effected only as such through the agency of the original legatee, following the absolute gift to him, and Miss Baird cannot assert the condition of a trust enforceable by decree: Whelen's Estate, 175 Pa 23. Words of trust and confidence without more do not create a trust, or turn the devise into a trust: Boyle v. Boyle, 152 Pa. 113. They are not sufficient prima facie to con vert a devise or bequest into a trust: Pennock's Estate, 20 Pa. 280; so in Ketter v. Jenks, 43 Pa. 445; Beck's Appeal, 46 Pa. 527; Church v. Disbrow, 52 Pa. 219; Hopkins v. Glunt, 111 Pa. 287; Presbyterian Missions v. Culp, 151 Pa. 469. "The modern rule," says Gardner on Wills 536, citing Pom. Eq. Jur. 1018, "is that in order that a trust may arise from the use of precatory words, the court must be satisfied from the words themselves, taken in connection with all the other terms of disposition, that the testator's intention to create an express trust was as full, complete, settled and sure as though he had given the property to hold upon a trust declared in the ordinary manner. The test is whether the words express merely his wishes or whether they express his will; where an absolute estate is in terms given, precatory words which follow are so treated as expressing the wish rather than the will: Whelen's Estate, supra. Gardner lays down the further general doctrine that where the testator makes an absolute devise, his intention not set forth in the will that the devisee should hold the property in trust for others, cannot be enforced though the devisee acknowledge the trust in writing and definies its extent. Says Schouler on Wills 1136, "the current of the decisions both in England and in the United States indubitably shows that precatory trusts are not to be favored, nor is their extension to be encouraged by the courts." In Good v. Fichthorn, 144 Pa. 287, it is said that "as it must unequivocally appear that the testator meant to limit the estate, it has been uniformly held that no precatory words will be sufficient." There, as here, an absolute fee was given with the desire that the devisee by will dispose of any unconsumed residue; it was expressed in language far more mandatory than we find in this letter; the request was held not enforeceable. To the same effect is the doctrine in Am. & Eng. Enc. of Law 1165. If, then, precatory words in the will itself fall short of constituting a trust enforceable at law, it is manifest that as to this letter, separate and distinct from the will, constituing no part of it, that there was no intent on the part of David S. Wilson that the devise to his brother was in any way limited or subject to any claim as of right by Miss Baird, or anyone else. It is incredible that the testator, a trained lawyer, in the drawing of his own will, which is a model, wherein he devised absolutely, without limitation, his entire estate to his brother, should with the same hand, at the same time, absolutely destroy what he had just done, making his brother a legatee only to the extent of ten thousand dollars and conferring a fee upon Miss Baird. If he had intended a trust he would have said so; he knew what was required. If he had intended the letter as a codicil to his will, why did it concern itself only with the estate in Robert K. Wilson? If he had intended the letter to take the place of his will he would not have said therein, referring to his will, "out of the estate left you" I want you to do certain things. If he intended one thing by his will, and another by the letter in precatory language, defined not to be sufficient to create a trust, it was worse than confusing to state the will was written "to save all the trouble possible." This trained lawyer did not intend, by the letter, to devise to Miss Baird "the rest" of an estate already given to Robert in language requesting Robert to "give" it "out of the estate left you by my will." In Bowlby v. Thunder, supra, a significant fact showing the intent of the testator, says the court, is the intervention of a blank page between the will and the subsequent precatory requests. Here is a separate paper, not attached to or connected in any way with the will, executed not under seal as the will is, clearly showing an entirely different intent in the testator's mind, towit: that the will disposed of the estate; the letter was a personal memorandum for the devisee's consideration alone. All that the case of Denny v. Barton, 2 Phillimore 346, decided was that the letter should be probated, as has been done here; its construction was not passed upon, and the case is no authority for assuming that the language of the letter was a mandatory direction. It is earnestly contended that as the accountant treated Miss Baird as the residuary devisee, believing he was bound by the terms of the letter, and in pursuance thereof conveyed to her large interests in real estate, and paid her on account certain portions of the residue of the estate, that he is bound by his own construction, citing Hagerty v. Albright, 52 Pa. 274; Santee v. Santee, 64 Pa. 473; Follmer's Appeal, 37 Pa. 121. We do not think the cases cited, or the recent acts of the executor, estop him from asking for a judicial construction of these papers, or legally bind him to turn over the rest of the estate devised to him. It is not our duty to pass upon the discretion which Robert K. Wilson has exercised. Apparently he had tried to carry out his brother's wishes; so far his efforts have resulted very beneficially to Miss Baird. What he may do in the future is not our concern. We are called upon to construe David S. Wilson's will, and the effect of the requests contained in his letter. We have no hesitancy in concluding that the will governs, vesting the entire estate in the devisee, and that under the letter Miss Baird. has no claim for the enforcement by decree of any portion thereof. The conclusions reached do not require consideration of the exceptions filed; but in case we are mistaken, and this estate belongs to Mary M. Baird instead of to Robert K. Wilson, then the exceptions are pertinent, and they will be briefly referred to. As intimated at the close of the hearing, the testimony is not sufficient to work a surcharge of the executor for commissions; he has performed valuable services, for which and for the measure of responsibility which this executorship carries, the charge made by him of three per cent is not exorbitant. Nor do we think the evidence is sufficient to convict him of fraud or bad faith in the purchase and sale of the coin collection. The measure of duty upon a trustee is clearly defined and need not be elaborated upon. If his purchase without authority was obtained by fraud, it is absolutely void. And if there were any abuse of this trust relation to her, he should be chargeable therewith; Spencer's Appeal, 80 Pa. 317; Greenfield's Estate, 14 Pa. 489. But the weight of the testimony in this case does not indicate fraud, or abuse of a trust relationship, or concealment resorted to by the accountant. Miss Baird treated these coins as belonging to her, and offered to sell them at their appraised value to the accountant, to Oliver and to Chapman before they were finally taken by the accountant himself. If under the facts as they exist the accountant had asked for authority to purchase this collection at their face value, after notice to Miss Baird and her acquiescence therein, it would have been granted; what would have been previously authorized may be subsequently ratified: Grimm's Appeal, 105 Pa. 375. This transaction shows that these parties met each other on equal footing. Miss Baird knew or was bound to know what best result could be obtained for this collection; she certainly was not deceived by the accountant, and she had able counsel whom she could have consulted. If she had sold them to either Oliver or Chapman she could not come here and complain; her claim does not rise higher against the accountant under her own statement of facts. She had writ ten a letter accepting Chapman's offer at the same price she sold them to the accountant; she re-opened the subject with the accountant long after he declined to purchase. The exceptions are dismissed, and a decree will be entered awarding the entire fund to Robert K. Wilson. For accountant, Patterson, Sterrett & Ache son. For respondent, Watson & Freeman. Court of Common Pleas, WASHINGTON COUNTY. DEARMIN v. DEARMIN. in divorce alleging desertion under the act of March 13, 1815, 6 Smith's Laws 286. Opinion by TAYLOR, J. Filed June 28, 1907. To entitle one to a divorce under the act of March 13, 1815, 6 Smith's Laws, 286, wilful and malicious desertion and absence from the habitation of the other without. reasonable cause for and during a continuous period of two years must be shown, and to prove this the burden is cast upon the one seeking a divorce, not only to show a separation but to show circumstances from which the court can find as a fact that the separation was without reasonable cause. The witnesses testifying in this case for the libellant and respondent simply testified that the respondent left her husband about the time alleged in the libel; that they did not know why she left her husband; that they had been in the habit of visiting the home of the parties to the suit, some several times a week and others not so frequent, about the time of the alleged desertion; that they did not observe that the respondent had any reason for leaving her husband, so far as they were able to discern. And the only statements that the husband and wife were not living harmoniously came from one or the other of the parties to the suit themselves, so that we are confined to the testimony of the libellant and respondent themselves as to their family troubles, there being little corroboration of the story of either sides except as they had detailed their respective complaints against each other to outsiders. The respondent admits leaving the habitation of her husband in Washington county, Divorce-Desertion-Act of March 13, 1815, taking with her nearly all the household 6 Smith's Laws 286. goods to Cambria county, where she remained for more than two years. The bare stateTo entitle one to a divorce on the grounds of deser-ment of this fact without any explanation tion proof must be made of a wilful and malicious desertion and absence from the habitation of the other without reasonable cause for and during a continuous period of two years. A. brought an action for divorce against B. on the grounds of desertion, alleging an absence without reasonable cause for a period of more than two years. B. filed an answer alleging that she absented herself from her husband on account of his abuse. Divorce refused. No. 102 November Term, 1906. Libel would lead us to the conclusion that the wife deserted the husband. But this admitted fact still casts the burden on the libellant in this case, who is seeking the divorce, to not only show this admitted separation, but the further essential under the act he is employing for relief, circumstances from which the court can find as a fact that the separation was without reasonable cause. There was certainly a course of treatment |