Opinion of the Court.

large, the brother would not settle." It is at least doubtful whether the sisters ever saw the telegram. To this telegram the following answer was received:

"Paris, 4, 17, 1887.

"To Frank Chandler, St. James Hotel, New York.

"No litigation. Will allow sisters just rights on arrival thirtieth. Please arrange all other important business. dress American Exchange, London.

"(Signed)

Ad

GEORGE POMEROY."

To this he replied as follows:

"To Pomeroy.

"Dispatch unsatisfactory. You don't understand situation. Return Chicago Tuesday. Henceforth manage your own affairs. (Signed) FRANK CHANDLER."

On April 19, Pomeroy telegraphed from London to his aunt. Mrs. Van Aulen, as follows:

"London, April 19, 1887.

"To Van Aulen, 675 Fifth Avenue, New York.

"I accept proposition to share equally with sisters in father's and Edward's estates, including all trust funds. Legal expenses both sides and Edward's debts to be paid out of joint estate."

Upon the same day the three ladies cabled Mr. Cowles as follows:

"Edwin Cowles, American Exchange, London, Eng.

"Proposition accepted by us, but George must come home immediately. Frank cannot act without him; losing money. "(Signed) JULIA and JOSEPHINE and Van Aulen.”

Upon the same day Mr. Cowles cabled as follows to Mrs. Van Aulen:

"George cables acceptance proposition. I have a duplicate with his signature. He will act good faith. He is ill, not fit

Opinion of the Court.

to travel alone; cannot he wait till I sail May 7th, wants to finish medical treatment; answer immediately American Exchange, as he leaves morning Germanic.

Upon the same day Julia also telegraphed to Mr. Chandler, who had returned to Chicago, as follows:

"New York, 19.

"To Frank B. Chandler, 110 Dearborn Street, Chicago, Ill. "George accepted terms; he arrives next week; will write you in full."

She also wrote him a letter of same date, enclosing copies of the telegrams from Cowles and George P. Pomeroy and the replies to them. About the 30th of April Mr. Chandler returned from Chicago to New York, and went a day or two afterwards to Morristown, where he met George P. Pomeroy, who in the meantime had returned from Europe, and the sisters. They went directly to the office of Mr. Halsey, an attorney at that place, where the agreement was signed. At the same time the will of Edward Pomeroy was admitted and proved. George P. Pomeroy renounced the executorship, and Mr. Chandler qualified as administrator with the will annexed. In the interview at Mr. Halsey's office something seems to have been said to the effect that the trust funds could not be touched. But it seems to have been only an incidental remark, not assented to by Mr. Chandler, probably not heard by him, as he was deaf, and not made the subject of discussion. That evening there was a meeting of the parties at their house in Morristown, when the agreement was read, its contents explained by Mr. Chandler, and, as the sisters now claim, the agreement with regard to the back charges and trust fund was first called to their attention. The interview was evidently a stormy one, the sisters threatening to repudiate the agreement, and insisting that they were dividing up what was left; that if he ever attempted to force this he could only do it by law through the courts; and that they did not know it was in the agreement or anything about it. Mr. Chandler insisted

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that, as they had signed it, they were bound by it. He claims, however, that the only dispute was with regard to the interest and the method of making an accounting, and it is proven that the following memorandum was made and handed to him that evening or soon after:

"To F. R. Chandler.

"SIR: In figuring interest on the accounts in accordance with the agreement of April 13th, 1887, it is understood that interest shall be figured to May 1, 1887, and all sums that come between the 1st and 15th of any month shall be called to the first of that month, and between the 15th and 30th of any month, then to the 1st of the following month."

This was signed by George P. Pomeroy and the sisters. Conceding that the sisters had not read the agreement or demanded that it be read to them before they signed it, as they were bound to do, and that their counsel, Mr. Shoudy, had not informed them of its terms as fully as he might have done, it is difficult to see how, in view of the telegrams between the parties in New York and those in Europe, and their own letters, they could have understood that the trust funds were not included, if they understood the force of language. Not only did George's telegram, a copy of which Julia enclosed in her letter of April 19 to Mr. Chandler, expressly mention "all trust funds," but it was also mentioned in the original telegram from Chandler to Mr. Cowles of April 13, of which she probably knew the contents, and her reference to it in her two letters from Newport of April 6 and April 13, puts it beyond controversy that the propriety of including the trust funds was made a matter of discussion. Their conduct subsequent to the agreement tends strongly to show their acquiescence in it. On the 9th of May they executed a power of attorney to Chandler to settle and dismiss their suits in Missouri and to take charge of their property there. Upon the same day they executed a bond reciting their authorization to him to make a distribution of the estate of Edward Pomeroy, and to pay it to the legatees and devisees named in

Opinion of the Court.

his will, and agreed to indemnify him against any debts which should be recovered against the estate. On the following day Mrs. Morrison writes to her aunt, Mrs. Buckingham, expressing her pleasure at the settlement of their troubles, "since we have signed an agreement to wipe out all wills and divide what is left, share and share alike. Frank will charge us with all our personal expenses since father's death, which is perfectly proper, but he only proposes to charge George with what he received from the trust fund left him by father, and not one cent of all the surplus he got out of mother and of you for mother's effects."

During the summer an active correspondence was carried on between Mr. Chandler and the two sisters with relation to the settlement of the estates upon the basis of their agreement, in which repeated allusion was made to the trust fund and to an equal division of the income of the same, and no suggestion on the part of either party that they were not understood to be included. Julia repeatedly expressed her pleasure that the settlement had been effected, and at the manner in which Mr. Chandler was proceeding to wind up the estates. Not only this, but the parties proceeded so far in the execution of the settlement that the two ladies turned over to the plaintiff securities to the amount of $109,153.33, to which were added the estate of Edward Pomeroy, ($190,000,) that of George Pomeroy, ($119,000,) and the insurance upon the life of Edward in the amount of $8000, and a dividend declared in securities of $73,896.67 to each of the defendants, in addition to a cash dividend of $54,000 to each. The defendants also received from Mr. Chandler two-thirds of the income collected July 1, 1887, from the life insurance and trust company on the $30,000 trust fund of George P. Pomeroy, i.e. that proportion dating from May 1, according to the agreement of settlement. They also paid over to him one-third of the income for the same period of their own trust fund of $100,000. Indeed, their relations seem to have been of the most friendly description until the death of George in November. When the contents of his will were made known this controversy arose.

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We have searched the record in this case in vain for evidence that the plaintiff brought about this settlement by any fraud, misrepresentation or undue influence. Undoubtedly the defendants had confidence in Mr. Chandler's integrity, his knowledge of business, and his acquaintance with these estates; it is possible that he was better informed of the amount of Edward's estate than they, but there is nothing to indicate that he made use of this information to deceive them as to its value. Their motive in entering into this agreement was doubtless an honorable one. They had been engaged in a long and apparently bitter quarrel with their brother Edward over the supposed misappropriation of their father's estate. George had been, to use Mr. Morrison's own language, "practically disinherited by the father. His sisters had not broken the father's will and reinstated him. This had made George very sore. The aunt and uncle suggested and pressed upon the ladies the fact that they then had the opportunity to bring about a perfect · reconciliation and peace with their brother; that if litigation was stopped and all that there was divided up equally among the three, what was left, that this desirable result would probably be accomplished." The sisters had themselves been excluded from Edward's will, and there was at least a possibility that his estate would be large enough to make an equal division of both estates advantageous to them. Under these circumstances, and for the sake of peace, they agreed to the settlement. If equality be equity, we see no reason why it should be disturbed. From a financial point of view the agreement may have been a mistake. They acted, however, not without deliberation, and with at least an opportunity of consulting with counsel and with Mr. Morrison, in whom they seem to have perfect confidence. But if the venture turned out unfortunately for them, it is difficult to see in what particular plaintiff was to blame.

Much stress was laid by the court below upon the fact that Mr. Chandler advised the sisters not to consult with a lawyer with regard to the proposed settlement. This was strenuously denied by Chandler; but whether this be so or not, it is evident that the first proposal not to consult with a lawyer came