The principal questions submitted to the court in this case are, whether any agreement has been concluded between the parties; and if so, what are its terms ? It appears that the defendant gave notice of his intention to prove the will, of Ruth Payson in the probate court on Monday the 23d of April 1860, and that Mr. Minot was retained as his counsel to transact the business. On Friday, April 20, Mr. Hoffman, one *486of the' plaintiffs, called at Mr. Minot’s office, and notified him that he intended to oppose the probate of the will on account of the heirs of Mrs. Baylies, one of whom was his wife. On Monday the defendant called and gave Mr. Minot notice that his nephew, E. Lincoln Baylies, whom he had seen in New York, had made objections to the will, and had made a proposition for a compromise, on the basis that he and his sisters (Mrs. Hoffman and Mrs. Livingston) should receive one quarter of the estate; that he had agreed to give an answer on his return to Boston, and had done so or was about to do so by writing a letter to Mr. Baylies accepting the proposal.
The defendant was then informed of the interview of Mr. Minot with Mr. Hoffman, and that Mr. Parker had been retained to oppose the will, and was advised that they should be informed of the proposed settlement; and with his approbation Mr. Minot went to Mr. Parker’s office, where he found Hoffman also, and informed them that the defendant had accepted the proposal of Baylies, and that the matter would be settled in that way. The reply was, in substance, an assent to such a settlement on the part of parties then in Boston, and an agreement to write or telegraph to New York for its acceptance by parties there. The will was not proved on that day; and on the following day Mr. Hoffman informed Mr. Minot that he had received a telegram from New York, informing him that the compromise was assented to by the parties there. It was then proposed and assented to by the counsel on both sides that the agreement should be put in writing; and a contract was drawn up, with which they were mutually satisfied, expressing what they regarded as the terms of the agreement. It was to be signed and sealed by the parties. Mr. Minot sent the paper to the defendant that day, with a note informing him that it was correct, and that it would operate to save the necessity of calling more than one witness to prove the will, and stating also the effect of the agreement. On the same day the defendant returned the paper to Mr. Minot, declining to sign it, stating his reasons for doing so, and informing him that he had written to Mr. Baylies, and that no other document was necessary. It is impossible, therefore* *483to have the trusts declared, and the fund protected and the trusts executed under the direction of the court. 1. To have the trusts declared. Lewin on Trusts, 609, and cases cited. Waller v. Fowler, Sausse & Scully, 274, 294. Hanly v. Sprague, 20 Maine, 431. A bill may even be brought to have the right of a claimant in remainder declared during the life of the tenant for life. Knight v. Knight, 3 Beav. 148. Dorchester v. Effingham, Ib. 180, n. Prevost v. Clarke, 2 Madd. 458. Lorillard v. Coster, 5 Paige, 172. Hawley v. James, Ib. 318. 2. To have the fund protected. 1 Story on Eq. § 604, and cases cited. Lewin on Trusts, 609. And where the trust fund is endangered by a denial of the trust by a trustee about to leave the country, and there is no remedy at law, there is a very strong ground of interference. Lewin on Trusts, 609. Leake v. Leake, 1 Jac. & Walk. 605. Scott v. Becher, 4 Price, 346. Clark v. Flint, 22 Pick. 231. 3. The court should take the supervision of the execution of the trusts. Hill on Trustees, 190, 191, n., 548.
B. F. Thomas $f G. F. Hoar, for the defendant.The plaintiffs are not entitled to the aid of a court of equity, because the whole consideration which induced the defendant’s offer has failed and can never exist. If this will had been defeated, the will of 1846 would have been in force. But the evidence shows that the testatrix was of sound mind. The sole motive of the defendant, therefore, was to avoid a public family controversy.
But no contract is disclosed, in respect to which the plaintiffs can have relief. The unexecuted memorandum clearly was not such a contract. Nor did the transactions between counsel amount to a contract. No contract was formed by the correspondence. The defendant’s letter of April 24 required an acceptance, to become binding. If such acceptance might have been inferred by the letter of Baylies of April 26, in connection with the reply of April 28, the inference was entirely negatived by Parker’s letter of April 30. Besides, what was offered by one party was not accepted by the other, in the same sense. The minds of the parties never met. The terms offered by Payson are set forth in his letter. The terms which the plaintiffs in* *484tended to accept are embodied in the unexecuted memorandum, These terms were different, in various respects. See Thornbury v. Bevill, 1 Y. & Coll. Ch. 554. The acts of the plaintiffs until May 21 form a bar to the relief sought by them. Induced by them, the defendant withdrew his original offer, and prepared to establish the will. These acts may be regarded as an admission by the plaintiffs that no contract had ever been concluded between the parties, on which the defendant acted ; or as an abandonment and rescission of such contract. A parol waiver is a bar. Price v. Dyer, 17 Ves. 356. Robinson v. Page, 3 Russ. 114. Brooks v. Wheelock, 11 Pick. 439. And a contract may be rescinded by acts and conduct, without an express agreement to that effect. Goodrich v. Lafflin, 1 Pick. 57. Hill v. Green, 4 Pick. 114. If a bargain was ever completed, the plaintiffs were bound to withdraw all opposition to the will. The proposal of April 24th was made under a misapprehension of the defendant’s rights. It was founded on his belief that the whole estate, real and personal, came to him as executor. The plaintiffs have not alleged and proved a precise and certain contract, which is essential to entitle them to relief. Boston & Maine Railroad v. Babcock, 3 Cush. 228. Tatham v. Platt, 9 Hare, 660. If any contract was ever completed, the plaintiffs have not performed their part of it. Calverley v. Williams, 1 Ves. Jr. 210. Higginson v. Clowes, 15 Ves. 516, and cases cited. Neap v. Abbott, Coop. Pract. Cas. 333. Manser v. Beck, 6 Hare, 74. Colson v. Thompson, 2 Wheat. 336. Kendall v. Almy, 2 Sumner, 278, 295. Carr v. Duval, 14 Pet. 77, 83. They continued openly to deny the validity of the will, and endeavored to collect evidence to establish its invalidity. See also Myers v. Watson, 1 Sim. (N. S.) 523. An acceptance, to be binding, must be clear and unequivocal. Fry on Specif. Perf. § 167. Warner v. Willington, 3 Drewry, 523. Thomas v. Blackman, 1 Colly. 301. If one party gives notice that he does not hold himself bound to perform, and will not, and the other makes no prompt assertion, he will be considered as acquiescing in the notice. Adams on Eq. 88. Walker v. Jeffereys, 1 Hare, 341, 348, and cases cited. Rogers v. Saunders, 16 Maine, 100, *481counsel, and became satisfied that they could not successfully, contest the will; that at the time when the will was proved, he appeared with his counsel, who stated that he did not desire to recognize the assent of the plaintiffs, or to depend thereon in any degree, but wished to produce such evidence as would satisfy the court, without such assent, and thereupon all the witnesses to the will were called and examined, and upon their testimony the will was admitted to probate; and that it is true that the defendant is about to depart from the United. States, but not with the intention not to return. In relation to various other matters alleged in the bill, the answer either admitted the same, or professed the defendant’s ignorance thereof.
At the hearing, before Hoar, J., the plaintiffs introduced the testimony of William Minot, Jr., and Francis E. Parker, and the defendant introduced the testimony of Charles Deyens, Jr., and the deposition of Francis Payson, upon various of the matters alleged in the bill and answer. Mr. Minot testified to various interviews and negotiations, letters and agreements, substantially as set out in the bill and answer. Mr. Parker testified that he first knew of the correspondence between Baylies and the defendant a few days before the 21st of May, and never was authorized to waive any agreement for a compromise. He also testified to negotiations with the counsel of the defendant as to the time for the hearing upon the question of the probate of the will, before and after the 21st of May. The case was thereupon reserved for the determination of the whole court; was argued in November 1861, when it was decided that the bill was prematurely brought, for the purpose of enforcing specific performance of the alleged agreement; and again in November 1862, upon the question whether the bill might be maintained for the purpose of declaring and enforcing a trust.
B. R. Curtis Sf F. E. Parker, for the plaintiffs.The plaintiffs made a definite proposal, through Baylies, to forego their opposition to the will, and receive from the estate the same share as the defendant; the latter took time to consider their proposal, and promised to write to Baylies his decision ; and in pursuance of this promise wrote the letter of April 24, declaring in terms *482that he had consented. This letter made a- concluded agreement to share equally with the plaintiffs what was given to him by the will. He makes no new conditions. The other expressions in the letter do not vary the effect of this language, which clearly expresses the union of two minds, agreeing upon a definite thing. The respondent understood it as a concluded agreement at the time. And upon this question, whether there was an agreement arising out of the written correspondence, and the uncontroverted facts accompanying it, the subsequent acts and declarations of the plaintiffs’ counsel are unimportant. Rowland v. Phalen, 1 Bosw. 43. Nor can these acts and declarations be considered as a waiver of the agreement, because he was ignorant of the correspondence now in the case, which contains the agreement. He did not know that the defendant had already signed a sufficient memorandum. This being an agreement for a family compromise, fairly made, a court of equity will uphold it with a strong hand. 1 Story on Eq. §§ 131, 132, and cases cited. No waiver or abandonment of the agreement was shown. Robinson v. Page, 3 Russ. 114. Carolan v. Brabazon, 3 Jones & Lat. 200. Fowle v. Freeman, 9 Ves. 351. Thomas v. Dering, 1 Keen, 740. Rowland v. Phalen, 1 Bosw. 43. Even if it be viewed as a proposal by the defendant, it was assented to in writing by the plaintiffs. It was also assented to by parol, by telegraph ; and a parol assent to a written proposal is sufficient. Boston & Maine Railroad v. Bartlett, 3 Cush. 224. Old Colony Railroad v. Evans, 6 Gray, 25. Foster v. Boston, 22 Pick. 33.
The agreement created a trust in the defendant to have the estate apportioned between himself and Mrs. Mulliken, and to pay over to the plaintiffs one half of his share. Wylie v. Coxe, 15 How. (U. S.) 415. Maxwell v. Whieldon, 10 Cush. 221. 1 Story on Eq. § 132, and cases cited. 2 Story on Eq. §§ 1044, 1231, and cases cited. Legard v. Hodges, 1 Ves. Jr. 477. Clarke v. Southwicke, 1 Curtis C. C. 299, and cases cited. The defendant denied the existence of the trust, and was about to leave the country. Under these circumstances, the plaintiffs had a right to file their bill and obtain the aid of a court of equity *495the house. But the cases are very different. The bank stock being pledged as collateral did not stand in the name of the testator, and would not be in his possession at the time of his death. It was, therefore, a matter of wise precaution to insert a special direction to his executor concerning its redemption. No such direction was needful concerning the real estate, the title to which stood in the name of the testator. Besides; if he had intended that bank stock should be used to pay off the mortgage debt, it is reasonable to suppose that he would give such direction, when he»was making provision concerning the redemption of it from the pledge to which it was subject.