Opinion by
Rice, P. J.,This and the succeeding case may be considered together. The first was a suit in equity brought to obtain cancellation *164of a certain agreement between the two heirs of the estate of Mary H. Thomas, which after a full trial upon the merits resulted in a decree dismissing the bill. The second was an adjudication in the orphans’ court of the estate of Mary H. Thomas, in which the same agreement was set up by the appellees and held by the court to control the distribution. Alvah F. Conrad is the appellant in both cases.
In the appeal in the equity case the first five assignments of error relate to findings upon questions of fact involving conflicting testimony. It is argued upon the first assignment that there was no competent evidence to support the finding therein recited. We cannot agree with this contention. The testimony of Thomas C. Conrad and of,Mrs. Clemmer, if believed, taken in connection with the plaintiff’s admission upon cross-examination that he had lived with his grandmother from the time his father died, was sufficient to warrant the finding. It is suggested fúrther that, inasmuch as in sustaining the objection of the plaintiff’s counsel to a question put to the plaintiff ■upon cross-examination as to his having been supported by his grandmother the trial judge stated that he did not think that was material, the plaintiff was not called upon to rebut the testimony of the defendant upon that subject subsequently given without objection, and therefore no finding should have been based thereon. But we think, if error was committed, •it was in sustaining the objection above referred to of plaintiff’s counsel, not in receiving, and basing a. finding •upon, the subsequent testimony of the defendants. This' was ■competent testimony, and the judge had said nothing in his •former ruling which would have precluded him from receiving •and considering it, even if it had been objected to.
The other findings of fact are supported by competent and, if believed, sufficient testimony. The trial judge had better opportunity than we have to 'judge of the credibility of the witnesses. Upon full consideration of all of the testimony and of the argument of appellant’s counsel in support of his contention, we are unable to say that any of the findings is not in accordance with the fair preponderance of the testimony and the-legitimate- inferences of fact deducible therefrom. There*165fore, applying the well-settled and familiar rule upon the subject, these findings must be accepted, as embracing the facts of the case. This being so the conclusion of the learned judge that a case was not made out in which a court of equity would cancel the agreement clearly and logically follows.
We are of the opinion also that under the facts found by him he was right in his conclusion that the agreement, so far as the Hanley mortgage is concerned, was not to be treated as executory at the time the bill in equity was filed; in other words, that the transfer of the mortgage to Thomas C. Conrad, which by the agreement he was to take to himself absolutely as his own property, was as fully executed, as “was necessary” to adopt the words of the agreement, “ to assure the same to him individually.”
As to the provision of the agreement in favor of the plaintiff’s nieces there is more room for argument. But even as to that provision, we are not convinced that the court erred in concluding that the agreement was “beyond the power of revocation, because the consideration was sufficient to support it even so far as it concerned the shares made payable to the nieces.” This conclusion is supported by an exhaustive and well-considered opinion of the learned trial judge, in which the very material distinctions between this case and Lennig’s Est., 182 Pa. '485, and Mechling’s Appeal, 2 Grant, 157, upon which the appellant’s counsel relies, are pointed out. With regard to Mechling’s Appeal, which comes more nearly to the present case than any other which has been cited, it should be observed, that the agreement therein set up was made between the administrator after his appointment, and when there was a relation of trust and confidence between him and the other party to the agreement, not as here, where by the very terms of the agreement the defendant took upon himself the responsibility of administration, and had proceeded with his duties in that regard and in regard of the execution of the other stipulations before the bill in equity was filed. That we have not misinterpreted that decision is apparent from the following quotation from the opinion of Justice Read, “ Such an arrangement between a trustee and a cestui que trust, could *166not be sustained for a moment, and its invalidity vitally affects the voluntary direction to pay to the brother and sisters of her son, given in palpable ignorance of the extent and value of her interest in the estate of the decedent." No such principle is applicable here, as is clearly shown by the opinion of the learned judge below. We cannot profitably add anything further to the discussion, and no good purpose would be served by repetition in our own words of his reasoning in support of the conclusion which we have quoted above.
The decree is affirmed at the costs of the appellant.