a time this practice of sending and returning the notes became irksome, and Turner sent the notes to Tracy, who thereafter kept them in his custody. As money came into the hands of Tracy, either from the payments of principal or of interest upon the notes, he reinvested the money in other notes, sending Turner a memorandum of the new investments as made. There is nothing produced either from the papers of Tracy or of Turner showing that formal accounts were ever exchanged between the parties. Certain it is, that on April 30, 1898, Turner was in Washington and in personal communication with Tracy. At the desk of Tracy in the Post Office Department, at the request of Turner, the will probated as mentioned in the statement of facts was written by Tracy for Turner, and by the latter executed. How long Turner remained in Washington at this time the record does not disclose, nor does it accurately show his movements or exhibit any letters passing between Tracy and Turner from the time of the making of the will up to the death of Turner.

Some time during the summer of 1888 Turner-an ill man, suffering with Bright's disease-went to the residence of Mrs. Rust, a niece, living in Fauquier County, Virginia, near Warrenton, where he remained until his death on September 21, 1888. At his death Turner left surviving him a maiden sister, who lived in Frederick, Maryland, Miss Henrietta Turner; a brother Thomas M. Turner, living in Minden, Louisiana, and various nephews and nieces, children of deceased brothers and sisters.

Between Thomas M. Turner, the brother living in Louisiana, and Silas H. Turner, it would seem, there had been little or no intercourse for more than thirty years, Thomas having left Virginia when quite a young man. Notified of the serious illness of his brother, Thomas M. Turner, about a month and a half before the death of Silas, came to the house of Mrs. Rust and there remained until the death. Thomas M. Turner had had at that time quite a varied experience of men and affairs. Leaving Virginia as a youth he went to Memphis, Tennessee, VOL. CCII-14

for the purpose of establishing a school. Not succeeding there he went to Missouri and became a bookkeeper for a commercial firm. At the outbreak of the war he joined the Confederate army. At its termination he established himself at Minden, Louisiana, and began merchandising, and also operated a steamboat landing. He married, bought a farm near the town of Minden, where he lived, and was for a year bookkeeper for a large business house; afterwards became a division superintendent of education; was subsequently a clerk of the state District Court-a court of unlimited general jurisdiction; was the parish treasurer and treasurer of the school board; for a time served as a justice of the peace, worked for lawyers in making up legal accounts, prepared the collectors' tax duplicates, etc.; afterwards became deputy clerk, and held the latter office at the time he was called to Virginia on account of the illness of his brother. At the time he came to Virginia he left at Minden his wife and five children, all minors and the issue of the marriage, the youngest being an infant, who lived but a comparatively short time. The names and dates of birth of the other children were as follows: Erle H., born on October 21, 1868; Wilmer, born on October 11, 1875; Ashby, born on February 3, 1880, and Lunette, born on December 19, 1882.

Omitting reference to the controverted question as to what passed between Silas and Thomas preceding the death of the former, certain it is that after the death of Silas there was found in a trunk belonging to him some few personal effects, the will which was afterwards probated, and an envelope containing papers-the so-called list set out in the bill and referred to in the report of the auditor and in the opinion of the Court of Appeals.

On September 28, 1888, Thomas M. Turner came to Washington, and in company with Eppa Hunton, Jr., Esq., a member of the Virginia bar, had an interview with Tracy. Whatever took place at this interview forms, we think, one of the principal controversies of the case, and we shall have occasion

hereafter to fully advert to it. Certain it is upon that day Turner received from Tracy in cash a little over four hundred dollars, and Turner returned to Virginia. From that time (September 28, 1888) up to November 26, 1888, except a letter written by Tracy to Turner on October 10, 1888, there is nothing in the record showing any relations between Tracy and Turner concerning the property in the hands of Tracy. On the date last named (November 26, 1888) Mr. Hunton offered the will of Silas H. Turner for probate in the County. Court of Fauquier County; a commission was issued to take the testimony of Tracy and the other attesting witness to the will, and the commission was executed on November 28, in the city of Washington, immediately taken to Warrenton, and on the same day the will was admitted to probate.

The next day, after the probate of the will, Turner appeared in Washington and called upon Tracy. Tracy handed to Turner a list of the notes, cash and other property in his possession, which he proposed to turn over as belonging to the estate of Silas H. Turner. Turner took the list and examined it overnight, returned the next morning, received the notes and the additional cash mentioned in the receipt, and as to a piece of real estate specified in the list received the following certificate from Tracy:

"I hereby certify that I have invested three thousand six hundred dollars ($3,600.00) in ground on Maryland avenue between 9th and 10th streets N. E., at thirty-five cents per square foot, and that Silas H. Turner is entitled to one-half of the proceeds derived from the sale of the same, after deducting the cost of grading, subdividing and examining titles, etc.

"PHILIP A. TRACY."

The entire question of fraud on the part of Tracy depends upon the statements of Turner as to what took place between himself and Tracy when he gave the foregoing receipt, and as to the conduct of the latter concerning the so-called list which

has been previously referred to. This we shall consider when we come to the controverted questions.

At the suggestion of Tracy the notes covered by Turner's full receipt were placed in a bank at Washington for collection, Tracy introducing Turner to the bank and assisting him in opening the account. Turner went to Virginia, with some of the cash received paid the funeral expenses and the debts of his brother, took his sister and a niece with him to Louisiana, and from Louisiana he went to Texas with his family and also with the sister and niece just referred to. In Texas, Turner bought a lot in a town called Vernon, boarded his family until he built and furnished a house, bought and partially paid for a ranch consisting of six hundred and forty acres and equipped it with stock and machinery. In the summer of 1890 he brought this entire family to Virginia, leaving his son Erle H., who had then become of age, on the farm in Texas as manager. He bought, in his own name, a house and lot in Front Royal, Virginia, the possession of which he turned over to his niece, Mrs. Rust, telling her that it was hers, and that it was done in accordance with directions given before his death by his brother Silas. Whilst in Virginia he visited Washington and saw Tracy. In the fall of 1890 Turner went to Texas, leaving his family in Virginia. He remained in Texas but a short time, coming back to Virginia either in the late fall of 1890 or early winter of 1891. In February, 1891, he drew on the proceeds of the notes which had been deposited a check for the sum of forty-eight hundred dollars and carried the money away on his person, stating in his testimony that one reason why he did so was that he did not want the heirs in Virginia to know where the property was; that he was trying to keep it concealed as much as he could; that he was managing his own affairs and did not want anybody to know anything about it, and that he was trying to get the money away from Washington entirely. In April, 1891, Erle H. Turner, the son, left the farm in Texas and came to Virginia. He visited Washington with the father, who introduced him to Tracy. The

father paid the son out of the proceeds of the notes in bank twelve hundred dollars, and delivered to him two of the notes previously turned over by Tracy, which had not been collected, of the face value of $525. The father testified that this payment to the son was made on account of some small indebtedness which he owed the son for money received for safekeeping from him whilst a boy and in discharge of a debt which the father declared he owed the son for managing the farm, which it had been agreed was to be compensated for by a half interest in the proceeds of two crops. One of the crops had been harvested and the other was still on the land and ungathered when the settlement was made.

From the date of the delivery by Tracy to Turner of the notes to the time of the payment made to Erle H. Turner, as just stated, all the notes delivered by Tracy to Turner and deposited to the credit of the latter had been paid, principal and interest, except the two which were turned over to Erle H. Turner on the alleged settlement with the father. During this time the record shows letters written by Tracy to Turner of a friendly character, advising Turner concerning the progress of the collections, and suggesting business methods for overcoming difficulties which arose, without the slightest intimation in any of the letters that there was in Tracy's mind even an impression of a difference between himself and Turner, or that Tracy supposed that there was any claim against him resulting from the transfer which had been made to Turner on November 30, 1888, except as indicated on the receipt then signed by Turner and the accompanying certificate relative to the Maryland avenue lots.

As the consequence of the settlement made with Erle H. Turner, practically all that remained of the money coming from the proceeds of the notes delivered by Tracy to Turner had been checked out by Turner, and it is true to say that the record leaves no question that in effect substantially all the family living and traveling expenses, the disbursements for the residence lot in Texas, the cost of the erection and the