does the second assignment of error. The exceptions and the assignment treat the stock as having been appropriated by the accountant, and ask to charge him with its value. Of course, this regards the accountant as owner, and simply demands payment of the proper price. If the exceptants claimed the stock as still belonging to the estate, they should have asked to charge the accountant with all dividends received, and should have required him, either to divide the shares among the legatees, or sell them at public sale. Failing to do either of these things, they could have petitioned the court for an order to compel him to sell the shares, or could have asked the auditor, by a proper exception, to surcharge him with the value of the stock as it was at the time of the audit, or at some other fixed time. But they did neither of these things. The second exception in the orphans’ court to the report of the auditor does claim that the “auditor erred in overruling the third exception, and in not charging the accountant with the full and actual and present valueof 95 shares of Juniata Valley Bank stock, and the dividends thereon, and in overruling the eighth exception so far as it relates to J uniata Valley Bank stock; which exceptions are as follows: “(3) He should be charged with the full value of J uniata Valley Bank stock as it was appraised.” “(8) He should be charged with the appraised and full value of the J uniata Valley Bank stock.”

Of course, it was not error for the auditor to refuse to do that which he was not asked to do. As we understand these exceptions, and the assignment of error, they constitute a demand by the exceptants that the accountant shall be charged with the appraised value of the stock at the time it was taken. That value was $100 per share, and the surcharge will therefore be $1,615, being $17 per share on 95 shares, with interest thereon from November 17, 1877. When exceptions are taken before an auditor, they should specify definitely what is claimed, not only for the information of the auditor, but in order that the accountant may know what claims are made against him, and what he has to meet. In». this case not even the printed argument asks any surcharge of dividends received, nor any charge of the value of the stock other than is stated in the exceptions before the auditor.

Third and fourth assignments. We see no reason for surcharging the accountant with the loss sustained in the sale of the Pennsylvania & Reading Railroad stocks. They were securities which the testator had himself purchased and held up to the time of his death. They were both dividend-paying securities, and so continued for several years after the testator’s death. There was no necessity for selling them, either to pay debts or for any other purpose. The accountant simply held them as the testator held them while he lived. When he sold them, he sold his own similar securities also, for the same prices and for the same reason. He was fearful they would depreciate still further. It was, of course, utterly impossible for him or any other person to know what the future course of the market would be. If they had gone still lower, he might have been still more censured, and incurred the possibility of still greater loss. For aught that we can see, he exercised the ordinary judg

ment of an ordinarily prudent person in making these sales, and in this there is nothing of supine negligence which is required in order to charge a trustee in such cases. In Nefl‘s Appeal, 57 Pa. St. 96, we said:

“All that a court of equity requires from trustees is common skill, common prudence, and common caution. Executors, administrators, or guardians are not liable beyond what they actually receive, unless in case of gross negligence; for, when they act as others do with their own goods, and with good faith, and are not guilty of gross negligence, they are not liable.”

The foregoing is very familiar doctrine, and supported by numerous authorities. Hanbest’s Appeal, 92 Pa. St. 482, was an application of the, same doctrine to the case of the continuance of a bank deposit of over $40,000, and its loss by the subsequent failure of the bankers, when it might have been saved by simply transferring it to some solvent bank; but we held that the accountant was not liable for the loss. The third, and fourth assignments are not sustained.

Fifth assignment. The executor of the widow disclaims all benefit of this assignment, and the daughter, Mrs. McClay, withdraws her plea of infancy to the written agreement, by which all the legatees agreed that the executor should pay $10,000 to the widow, who, in consideration thereof, released all claim to her dower and thirds of the estate. None of the other legatees asked to surcharge the accountant with the annuity which was charged upon the land devised to him for the benefit of the widow. The question, then, stands in this way: The widow and all the legatees and devisees, by a contract in writing, agreed that the widow should decline to take under the will, and release all claim of dower and thirds in and to the real and personal estate of the testator, and, in consideration thereof, the executor should pay to the widow $10,000, and one-sixth part of the residue of the personal estate, and one-sixth part of the interest of the proceeds of the sale of the real estate during her life. It would be very strange, after such an agreement as this, if the executor, who paid the $10,000 to the widow in pursuance of its terms, and on the faith of its provisions, by the express authority of all the parties interested, including this exceptant, Mrs. McClay, should be denied credit for the payment. The money was paid for the common benefit of all, and, of course, is paid out of the residue of the estate, and simply diminishes the amount of the residue by that sum. As the residue is given to all the children in equal sums, the loss thus sustained, if there is any loss, is common to all. All are disappointed in this respect alike, and it is not necessary to call upon a devisee or legatee, who has advantages by the release of dower and thirds, to make good the loss of some other legatee or devisee who is injured by the widow’s election to take at law, operating to diminish or burden his legacy or devise. The widow in this case does not take at law. She simply releases all her claims, both at law and under the will, for a special sum of money payable out of nobody’s share, but out of the general residue. The cases of Sandoe’s Appeal, 65 Pa. St. 314, and Gallagher’s Appeal, 87 Pa. St. 200, are not analogous. In both of them the widow did elect to take at law, and this claim worked special injury to certain devisees, whose devises were thereby burdened and rendered unequal with the others. Equality of distribution required that the benefits intended for the wife should be sequestered to secure compensation to those who were disappointed by her election. But there is nothing of that kind in the present case. It is true that the accountant, as a devisee, is relieved of paying for a few years an annuity to the widow. But that is no injury to the others, and it is simply a relief to him. If the parties had desired that he should pay this annual sum or its equivalent to them, they should have so stipulated in the agreement. There is no provision of that kind in the contract, and the facts are not such as to warrant a court in sequestrating the annuity for the benefit of the other parties. The fifth assign'ment is not sustained.

Sixth assignment. The accountant’s compensation was fixed at $4,000 by the auditor and court below. The debtor side of the account, as determined by the final decree of the court below, amounts to $127,387 .07, and the credit side to $74,821.16. The estate was a very complicated one. The settlement of it extended through a number of years, and is not yet closed. The account itself is of extra ordinary length, containing a vast number of items. Very great responsibility was cast upon the accountant, and the compensation allowed is but a little over 3 per cent. We do not think this at all excessive, and the sixth assignment is therefore not sustained.

Seventh assignment. As the accountant is charged with interest on all the moneys received by him, he is undoubtedly entitled to interest on the sums paid, and especially to have credit for sums of interest upon claims of creditors when actually paid. The assignment is not sustained.

Eighth assignment. As the accountant was specifically charged with the item of $1,515.13 for articles of personal property taken by the heirs, he was certainly entitled to have credit for it because of his delivery of the goods to those who received them. We cannot imagine any principle upon which he should pay interest on such an item. It never was money in his hands, and, of course, could not bear interest. It was delivered to the legatees; and for that reason, if for no other, no interest should be charged on the value of the goods. It was possible for the legatees to make interest on this sum by selling the goods, but in no conceivable event could the accountant do so, as he had neither the goods nor their value.

Ninth assignment. The compensation of executors and trustees is due at the time the services are performed. Parker’s Estate, 64 Pa. St. 307 ; Adams’ Appeal, 47 Pa. St. 94; Callaghan v. Hall, 1 Serg. & R. 241. In the last of these cases we held that the commissions must be deducted from the balance before interest is computed. In the present case the auditor stated the account up to January 1, 187 6, deducted the commissions then earned from the balance then in hand, and charged interest on the remaining sum to September 1, 1883. This was in exact accordance with the decision in Callaghan v. Hall, supra. After 1876 the commissions were allowed for each year; and, as interest was charged on each item of money received from one month after its receipt, of course the accountant was entitled to credit for interest on the commissions earned during the year. The eighth and ninth assignments are not sustained.

Now, October, 1886, the decree of the court below is affirmed in all respects except as to the J uniata Valley Bank stock, and as to that it is adjudged and decreed that the accountant be surcharged with the sum of $1,615, and interest thereon from November 17, 1877; and to that extent the decree of the court below is reversed, at the cost of the appellee.

THOMAS and others '0. LOOSE and others.1
(Supreme Court of Pennsylvania. October 4, 1886.)

EVIDENCE—FAROk-CoNTRAc'r—CONTEMPORANEous AGREEMENT.

In order to vary by a verbal understanding, a written contract containing an express provision that the paper contained the entire agreement, and that no outside verbal agreement would be of any effect whatever, such verbal understanding must be proved by at least two witnesses, and must be shown to be the inducing cause of the written contract.2

Error to common pleas, Berks county.

Assamps'lt by J. H. Thomas & Sons against Loose, Seaman & C0. The facts of the case are fully set forth in the opinion of the supreme court. Verdict and judgment were entered for defendants, whereupon plaintiffs took this writ.

M. L. Montgomery and G. A. Endlich, for plaintiffs in error.

Too much license was allowed in the cross-examination. Fulton v. Bank, etc., 92 Pa. St. 112; Jackson v. Litch, 62 Pa. St. 451; Hopkinson v. Leeds, 78 Pa. St. 396; Reichart v. Beldleman, 17 Serg. & R.41. There was not sufficient evidence of the verbal agreement to vary the written one. Biddle v. Wilhem, 40 Leg. Int. 382; Thorne v. Warfieln, 100 Pa. St. 519; Rowand v. Finney, 96 Pa. St. 192; Woods v. Farmare, 10 Watts, 195; Rearich v. Swinehart, 11 Pa. St. 233; Murray v. Railroad Co., 103 Pa. St. 37.

H. P. Keiser, J. E. Miller, and J. H. Jacobs, for defendants in error.

Plaintiffs’ witness having testified to the conversation prior to the contract, the whole of it could be brought out on cross-examination. Gorden v. Preston, 1 Watts. 385; Stevenson v. Hoy, 43 Pa. St. 191; Henderson v. Hydraulic Works, 9 Phila. 100; Duoall v. Darby, 38 Pa. St. 56; Robinson v. Snyder, 25 Pa. St. 203; Powell v. Sedgwick, 5 Whart. 336. This parol evidence was properly admitted. Thomson v. White, 1 Dal]. 424; Greenawalt v. Kohne, 85 Pa. St. 369; Hoopes v. Beale, 90 Pa. St. 82; Keough v. Leslie, 92 Pa. St. 424; Caley v. Railroad Co., 80 Pa. St. 363.

TRUNKEY, J. This action is founded on a contract signed by the parties. On the part of the plaintifi‘s its terms were negotiated by their agent. The first line provided that it was subject to their approval, and they did approve it by their signature. Immediately following that line, in legible print, quite as bold as the print in most other parts of the contract, is the following: “It is agreed and understood that in writing and printing this paper contains the full and entire agreement between the parties thereto, and no outside verbal understanding is of any force or effect whatever, and it is not to be held binding.” This at least notified the parties that the entire agreement, with all its terms and stipulations, is presumed to be set forth in the instrument.

At the beginning of the negotiation the blank was handed to the active partner of Loose, Seaman & Co., who looked it over, and at first refused to sign it, but finally affixed the signature of the firm. There is no evidence that anything was omitted from or inserted in the instrument by accident or mistake. The defendants did not intend that the paper they signed should differ in any respect from what it is. They allege a parol agreement made at the time which induced them to sign the writing. This parol agreement, as testified by themselves, is as follows: That if for any cause Loose, Seaman & CO. would desire to change in any way or countermand the order before the first of February, 1883, they should have that privilege. Thus, in the teeth of a distinct provision of the instrument which they read and signed, they set up an oral agreement which makes the instrument a mere option which they could refuse at any time before the first of February then next.

Parol evidence is admissible to establish a contemporaneous oral agreement which induced the execution of a written contract, though it may vary, change, or reform the instrument. It has been Often said that such oral agreement must be shown by evidence that is clear, pre— cise, and indubitable; that is, 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. Absolute certainty is out of the question. Spencer v. Colt, 89 Pa. St. 314. Where it is admitted, as here, that the instrument was read by the party who seeks to reform or avoid it, before the signing thereof, he should be stringently held to the rules of evidence respecting the matter which, if found as a fact, nullifies or reforms the instrument. The laboring Oar is with the party who asserts that the paper which he intelligently signed as containing the entire agreement is not what it purports. The instrument itself is the strong evidence to be overcome. In such a case as this it can only be done by the testimony of two witnesses, or one witness corroborated by circumstances equivalent to another. Ph'illz'ps v. Metly, 106 Pa. St. 536.

Upon the defendant’s statement of facts, it by no means follows that the agent of the plaintiffs was guilty of fraud at the time of the making of the contract. The real question is whether there was a parol stipulation, inducing the signing of the instrument, which ought to be made a part thereof to effectuate the intent of the parties. If so, the instrument may be reformed upon evidence to that end which would be sufficient in a court of equity. When parties and interested persons were incompetent witnesses, it was settled that at least two witnesses, or one with the equivalent of another, were necessary to establish an averment against a responsive answer on oath. That meant that the testimony of two disinterested witnesses, or the equivalent, is