places than at its southern end, had found that this coal was not a satisfactory purchase for him. He had an agent, Kelly, with full authority to speak and act for him, who had similar knowledge of these facts. Kelly had been admitted to the bar, and following his principal's instructions, after he had discovered the coal on the northwest and the west of the Backhaus farm, obtained an agreement by Martha Baumgardner and her husband on the 18th of April, 1917, wherein they agreed to sell to Eisler their interest in the coal by deed of general warranty, clear of all encumbrances. Kelly then engaged the husband of Martha Baumgardner to go with him to Michigan, where George Backhaus, the claimant, lived with his wife, so as to introduce them to him. Baumgardner received for his services from Kelly, his expenses to Michigan, including the payment of a substitute at his daily work during his absence, a new pair of shoes, and a "good time." The two arrived at the Backhaus home, and in company with the claimant, departed to a nearby town, where Backhaus signed and acknowledged before the County Clerk the same agreement which Baumgardner and his wife had signed. Kelly then obtained a notary who returned to the Backhaus home, where Mrs. Backhaus was lying in bed sick. Kelly testified he was told by George Backhaus and his wife that they had signed an option, and he said to them, that they (meaning the three legatees under the will of their father) had a right to sell, and that the executors did not, and if they had not consented to a renewal of the option, that the executors could not sell the coal. After considerable argument with Mrs. Backhaus, she signed and acknowledged the agreement which her husband had signed, on the same day, and Kelly paid to George Backhaus $1,101.00 cash, which was kept by him, but was tendered to Eisler, with interest, at the audit of the account. During the conversation preceding the signing, Kelly told George Backhaus and his wife, that Eisler had surrendered the option he had taken on the coal underlying the farm at the northeast corner of the Backhaus farm. He did not disclose the fact that he had discovered a vein of coal seven feet thick at the southern end of the farm lying on the northwest corner of the Backhaus farm, nor did he disclose anything which he knew about the farms which he had tested on the west.

The Backhaus farm had not been tested for coal by any person until after the above mentioned agreement was signed, but sometime after this and prior to the sale, it was tested, and it was discovered that it was underlaid with coal about seven feet thick. Edward Backhaus refused to sign any agreement to sell, and within a few days after his brother George had signed the contract, he wrote him a letter and told him that if the executors would sell he would get more money. George Backhaus and his wife refused to execute a deed in pursuance of the agreement which he and his wife had signed, and now, after having made a tender of all the money paid to him by Eisler, claims that the whole of the one-third of the purchase money, less the costs of administration and the amount of money which was paid to him by Eisler, belongs to him, and that the agreement which he signed cannot be enforced in equity. He is not a selfreliant or good business man, but easily influenced and imposed upon.

Eisler contends that his contract is an equitable assignment of the interest of George Backhaus and his wife in the proceeds arising from the sale of the coal; but George Backhaus asserts that Eisler is estopped from claiming the fund under his contract, because he deceived them when he said that the executors could not sell; that what he did to induce the signing of the agreement created a confidential relationship, and that he was silent when it was his duty to speak, when he knew of the valuable coal underlying the tracts on the west and the northwest, and on account of this confidence, and the breach of it, he cannot assert an equitable claim, because he does not come into Court with clean hands.

If Eisler had known beyond any doubt that the Backhaus farm was underlaid with marketable coal when he purchased the interest of George Backhaus and his wife, he was not obliged to tell any person what he knew, and if he had purchased it without divulging to the vendors his knowledge, mere inadequacy of price would not be sufficient to invalidate the bargain: Harris v. Tyson, 24 Pa., 347. He was and is answerable for his agent's acts as if they were his own, and when Kelly assumed to tell Backhaus about a portion of Eisler's explorations for coal, it was unfair not to tell him that

which was most favorable, instead of that which would depreciate the value in his estimation. When he knew that the lands of the adjoining farms on one corner and side showed a vein of seven feet and more of good coal, it was manifestly unfair to leave him under the impression that the option on the farm on the northwest corner was surrendered by him, because the coal underlying the tract was unsatisfactory, without disclosing the probability as he then knew, that the vein would continue through the Backhaus farm, or at least a portion of it. It was just over the boundaries of this farm that he discovered this extraordinary depth of coal, and it was his duty to be silent or to tell all he knew, so that no advantage could be had from telling that part of his knowledge which was most unfavorable. This man, surprised as he must have been by the unannounced visit of his brother-in-law with Kelly, was hurried off to the county clerk's office, and there signed away his right to his share of the coal; then another notary was taken to his home, and after his wife got out of her sick bed, she was persuaded against her will to sign, after Kelly had assumed to advise them as to their legal rights. No business man dealing with George Backhaus, would credit him with the ability necessary to take care of himself in a business transaction; he is both credulous and gullible, and when Kelly, the lawyer, told him that the executors did not have the authority to sell the coal, doubtless he was bewildered, for the executors had agreed to sell, and all the parties having any interest had consented. Thty could sell it beyond any doubt, but only under the control and direction of the Orphans' Court having jurisdiction of their accounts. It was no part of Kelly's duty to advise him, and when he undertook to do it, it ought to have been done accurately and explicitly. After blinding them with his mistaken view of the law, and concealing that part of the truth which would be calculated to dispel confusion and perplexity, done suddenly when he had taken them unawares, Eisler cannot be permitted to seek equity because he has not done it. Equity protects the weak from the strong, forbidding that their loss may become the other's gain, when obtained by surprise and a breach of confidence, and when this principle is applied here, we cannot permit one to get for $89.00 an acre that which was worth $176.

In Bispham's Principles of Equity, Section 232, it is said there can be no contract between two persons whenever any confidence is reposed, "except after the fullest and fairest explanation and communication of every particular resting in the breast of the one who seeks to establish the contract with the person so trusting him." This is not a case of rescinding a contract, but one where a Court of Equity is called upon to refuse the execution of a contract. The distinction is set forth in Lynch's Appeal, 97 Pa., 349, as follows: "But there is another principle involved in this case which seems to have been overlooked by both master and Court, and that is the wide difference between the facts and circumstances necessary to move a chancellor to refuse the execution of a contract, and those necessary to induce him to rescind it. In the one case interposition will be refused on the ground of improvidence, surprise or even mere hardship, in the other, a Court will act only on the ground of fraud, illegality or mistake." To the same effect is Davidson v. Little, 22 Pa., 245.

If the purchaser of the coal has been injured, he has his remedy at law, but under the facts and circumstances of this case, we cannot compel performance of the contract by treating it as an equitable assignment of the interest attempted to be recovered.

Distribution of the fund will be made as follows: One-third to George Backhaus, less the amount which he has received from Eisler, with interest thereon; one-third to E. W. Eisler, under his deed from Martha Baumgardner, and in addition thereto the sum of $1,101.00, with interest, which he had paid to George Backhaus, and onethird to Edward Backhaus.

IN RE ESTATE OF JANE HOLLINSHEAD, DEC. Jurisdiction, O. C.-Real Estate-Determination of Rights Under Will.

The Orphans' Court will not enter a decree affecting the title to real estate, upon petition and answer, where the record shows that the interests of third parties may be affected and jeopardized, without making them parties to the proceeding.

In the Orphans' Court of Monroe County. In re Estate of Jane N. Hollinshead, deceased. Petition for

Rule to show cause why a certain sum of proceeds of sale of real estate should not be paid to Sarah N. Hollinshead. Petition dismissed.

Gearhart & Rhodes, for Petitioner.
Wilton A. Erdman, for Respondent.

Groman, P. J., Thirty-first Judicial District, specially presiding. Jane N. Hollinshead died December 9, 1899, testate, seized in her demesne as of fee of and in certain real estate, in her last will more particularly referred to and described. The last will and testament of said decedent, and the codicil thereto, was duly probated by the Register of Wills of Monroe County, Pennsylvania, and entered of record in Will Docket Volume 5, Page 248. The real estate referred to in "Item I" of said will, on the first day of October, 1912, was granted and conveyed to Frank B. Michaels by virtue and authority of an order of the Orphans' Court of Monroe County. Frank B. Holmes is now a substituted trustee under said last will and testament, having been appointed as such by the Orphans' Court of Monroe County, Pennsylvania. The trustee has in hand the sum of $10,000, being the proceeds realized from the sale of the real estate herein before referred to. Edgar P. Hollinshead who had an interest in said real estate under the will of Jane N. Hollinshead, deceased, died testate on the first day of February, 1915, in the City of New York, State of New York, first having made his last will and testament wherein he devised and bequeathed the undivided moiety of the real estate herein referred to, to his wife, Sarah N. Hollinshead, who on June 8, 1916, presented a petition to the Orphans' Court of Monroe County, praying for a rule on Frank B. Holmes, trustee as aforesaid, to show cause why the sum of $5,000, realized from the sale of the real estate herein before referred to, should not be paid over absolutely to Sarah N. Hollinshead, the petitioner. The trustee, on June 12, 1916, filed an answer to the rule denying the construction placed upon the will of Jane N. Hollinshead by the petitioner; denying that Sarah N. Hollinshead was entitled to receive the principal sum aforesaid; claiming, however, that the children of Edgar P. Hollinshead or the surviving heirs of such children, to wit: George R. Hollinshead,