But we are not concerned as to that. | torneys, whom his mother had employed In the exercise of its equitable powers, the court will reach far, to prevent the triumph of fraud. As was said by this court in Cochran vs. Eldridge, 49 Pa., 365 (370), 'When it is alleged on adequate proofs that a judgment in whole or in part has been obtained by a suppression of truth which it was the duty of the party to disclose or by the suggestion of a falsehood or by any of the indefinite and therefore indefinable means by which fraud may be practiced, no court will allow itself, its records, and the process of law to be used as instruments of fraud.'"

to try the case, at the suggestion and request of the defendant. The defendant denies all or nearly all of these allegations, and his attorney denies that there was any fraud or collusion, so far as he knew, between the defendant and the plaintiff to obtain the verdict. Harry Binkley's testimony is not corroborated by any other witnesses, but is by a number of suspicious circumstances. These circumstances are that no administrator in the estate of Clara Y. Binkley was necessary except for the trial of this case; that the defendant and a friend whom he secured for that purpose beThe allegations of fraud in this case came the plaintiff's sureties on his adare that the judgment was obtained by ministration bond; that the plaintiff emthe defendant by collusion and fraud ployed defendant's attorney to administer between him and Harry Binkley, Jr., the the estate, and subsequently another atadministrator of Clara Y. Binkley, de- torney who was called to his office by ceased, the plaintiff in the case. In supdefendant's attorney, to try the case; port of it, it is shown that the property that he remained away from court when in question was the property of Clara Y. the case was to be tried when the Binkley, and that there is abundance of testimony of two witnesses, as well as testimony obtainable to show such to be his own, shows that he knew of witthe fact. Harry Binkley, Jr., testified nesses who would support his mother's that he administered on the estate of his claim to the property in dispute. This mother at the request of defendant, who we think corroborates his testimony promised him a reduction in the price of sufficiently to grant the relief prayed certain real estate or a cash considera- for, if such corroboration is necessary, tion, if he preferred it, if he would do so, of which we have some doubt, for even and permit him to obtain a verdict in though he is not corroborated when he the interpleader case, with which he could admits to wrongdoing on his own part make the sureties on such bond of and third parties suffer, as is the case Clara Y. Binkley pay the value of the here, no court would permit a judgproperty in dispute; that the defendant ment to stand. If he was the only one with a friend whom he secured for that affected by it we would not open the purpose became his sureties on his ad- judgment, even though he proved with ministration bond; that he employed the other witnesses all that he has testified defendant's attorney as his attorney at to, and this is all that the cases cited the defendant's suggestion and request; by defendant are authority for. But. that he employed an attorney, whom he if this judgment is permitted to stand. did not know, to appear for him in this the sureties, on the interpleader bond case, at the suggestion of the defendant; given by Clara Y. Binkley, could be that he met this attorney in the presence compelled to pay the value of the propof the defendant, at the office of defend- erty less what is awarded to and paid ant's attorney, who sent for him to come on said judgment in the distribution of there; that the defendant repaid him the any estate which Clara Y. Binkley, demoney which he paid to that attorney; ceased, may have had. It appears that that he did not subpoena any witnesses the Orphans' Court did surcharge the nor offer any testimony at the trial at the administrator of her estate with the suggestion and request of the defendant; value of the property in question and and that he refused to have any con- that, less costs and expenses, was sultation or communication with the at-awarded to the defendant on this judg

ment, so that the amount which the sureties on the interpleader bond would have to pay is small. If the defendant is not entitled to the judgment in this case, and the horses belonged to Clara Y. Binkley, the amount so awarded to the defendant would be awarded to the heirs of said Clara Y. Binkley, so that they may suffer because of it. Thus in either event innocent third parties would suffer. It is the duty of the court to see that no innocent parties are injured by its judgments obtained through fraud practiced by those procuring them, and as such result obtains in this case we make absolute the rule to show cause why the judgment should not be opened, and we also strike off the verdict.

Rule made absolute.

Where an agent for the sale of real estate obtains information while so acting that the holder of a judgment against his principal will sell it for less than its face value, and buys it and issues execution for its full amount, the defendant can not enforce his claim of a resulting trust by a rule to open the judgment. If the plaintiff is a trustee for the defendant the latter's remedy is to have the judgment transfered to him not opened. November Term, 1907. No. 210. Rule to open judgment. John M. Groff, for rule. H. Edgar Shertz, contra. January 15, 1910. Opinion by HASSLER, J.

This rule was granted to show cause why the above judgment should not be opened. It appears, from the petition, answer and testimony, that the defendant was the owner of certain real estate which he placed in the plaintiff's hands to sell. It was encumbered by liens of an amount greater than the value of the property, of which this

judgment was the last. This judgment
was owned by a bank in this city which
agreed to satisfy it upon the payment
of $850.00. Both the plaintiff and de-
fendant obtained a purchaser for the
real estate about the same time, and
had some dispute and misunderstand-
ing because of the defendant's refusal
to respect the agreement of sale made
by the plaintiff. He then went to the
holder of the judgment and purchased
it for the sum of $831.20, which he paid
with his own money. He then issued an
execution upon it for its full amount,
which is $1200.00. The defendant then
presented his petition to this Court,
asking to have it opened, and setting
substantially the facts above
forth
stated, upon which petition this rule.
was granted.

It is contended that because the plain-
tiff obtained the information that the
holder of it would satisfy or part with it
for an
amount below its face value,
while he was acting as agent for the de-
fendant and in the performance of the
duties of his employment, he cannot be
permitted to gain any personal advant-
age, and is only entitled to hold it for
the amount he paid. In other words,
that that is all that is due on it.

In Bispham's Equity, Section 92, it is said, "One of the most ordinary trusts of this kind (constructive) is that which grows out of the rule of law which forbids a trustee, or any other person who occupies a fiduciary or quasi-fiduciary position, from gaining any personal advantage, touching the thing or subject as to which such fiduciary position exists. To use the language of a learned author, Wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest After givhe has become associated.'" ing a number of illustrations of the application of this rule, in some of which the trustees' own funds were used in acquiring the rights, the learned author

testator intend, and the fact that one overthrow the one that she did not inleaves a will primarily declares the in- tend to die intestate. But for the purtention not to die intestate as to any poses of the argument let this almost part of his estate. Irrational would impregnable presumption be eliminated. seem any other conclusion, and to minu- Fortify as best can be done a presumptiae have the courts emphasized this one. tion springing from blood ties, how heavy At another time we said: "It has be- can it weigh against one resting on feelcome a postulate that one leaving a will ings stimulated by preferences, prehas no intention of dying intestate as judices and charity, and affections more to any part of his or her estate. Every binding than is possible for the thickest effort will be made to interpret the will collateral blood, and such guide the as expressing such intention. Punctua- hand when wills are written. Even if tion will be erased and changed, words these presumptions cancel, the broad and sentences will be transposed and general one that no one makes a will supplied, implications will be bent and intending to die intestate as to any part distorted, in fact, everything will be of his estate stands unassailed. But as done which is consistent with rational applied to the case under consideration design to make the will operate the these do not cancel, the relationship one whole estate." It has been decided is more than shut out. The extrinsic "that no testator is presumed to die evidence dispels any doubts there may intestate as to any part of his prop- have been as to the intentions of the erty, if the words of the will will carry testatrix and illustrates the theory of the the whole," and "It should not be and presumption which has been put in apnever is presumed that a testator in-position with that resting on blood relatended to die intestate of any portion of his estate, if a contrary intention can be fairly deduced from the language of his will." It would not seem to be going too far to say that it is presumed that one leaving a will intended to die

testate.

tionship. The only persons named in the will are two nieces and the infant daughter of one of them-the last is given a gold watch and a gold thimble. Except these mementoes all is given to Mabel Herr Alexander and Alice Amelia Herr, and the testatrix's reasons for Suppose the only kin of the testatrix preferring them are not hidden. It was were the legatees, could it be success- that fathomless maternal instinct which fully contended that the words of her closed her eyes and ears to all except will would not give her estate to them? these special objects of her affection. Suppose, again, that the testatrix had It will be said that the testatrix was not no kin, that those named in her will were their mother. True, but it is not difalien to her blood, would any one be ficult to understand that she was the reckless enough to assert that the estate one they knew as a mother and the one of $4722.64, less a few dollars, es- who mothered them, so tenderly that cheated? If not, the words of this will in them centered her interest and with are sufficient to carry the whole. Un- them abode her affection. She was a der what circumstances could it be pre- woman, the embodiment of the mothersumed that a testator intended to die hood instinct, and philosophy falters in intestate as to any part of his estate if demonstrations distinguishing affections. the words of his will do not imply the of women having the realization of the contrary? The presumption ought to instinct and those who have not had it, be stronger than the one that no one where the former from the accident of leaving a will intends any intestacy. conditions and the latter by selection The only favorable circumstance here give their love to children. However, is founded on blood relationship. Be- assuming only a relationship, but one cause the testatrix did not give by her more than ordinarily agreeable, between will to all those who would have taken the testatrix and the legatees, from both had she had no will it is attempted to material and sentimental view-points, foster a presumption mighty enough to if the testatrix gave her entire estate to

those named in her will, she did noth- | zation of the effect of the word "pering which conflicts with either a rational sonal", in effect, giving to the word purpose or the idea of personal gratifi- "effects" its unqualified effect. cation. Her estate divided between two probably would have substantial results, distributed among eight possibly it would be inconsequential. In the latter case she less likely would be held a benefactress than in the former, and such a prospect excites sensations, unconsciously it may be, but agreeable and quite sufficient to tip the scales when otherwise balanced.