LESSEE TAKES RISK OF QUALITY OF PREMISES leased, in the absence of express or implied warranty, or of deceit on the part of the lessor, and can. not ordinarily maintain an action against him for injuries sustained by reason of their defective condition, but the lessor is liable if the lessee is injured through concealed and dangerous defects known to him, and which a careful examination by the lessee would not discover: Cowen v. Sunderland, 145 Mass. 363; 1 Am. St. Rep. 469, and note 471.

IN LEASE OF Building there Is No Implied WarranTY that it is safe, well built, or fit for any particular use: Libbey v. Tolford, 48 Me. 316; 77 Am. Dec. 229, note; note to Carson v. Godley, 67 Id. 412; Fisher v. Lighthall, 4 Mackey, 482; 54 Am. Rep. 258; Jaffe v. Harteau, 56 N. Y. 398: 15 Am. Rep. 438.

CASES

IN THE

SUPREME COURT

ОР

CONNECTICUT.

POTTER'S APPEAL.

[56 CONNECTICUT, 1.]

EXECUTOR ACTING WHERE HIS INTERESTS ARE CONFLICTING. — If an executor, having in his hands funds of the estate, advises the widow of the decedent, who is acting both for herself and as guardian of a legatee, to invest moneys of the estate coming to them in certain stocks and mortgages, and he, unknown to her, receives a commission for disposing of such stocks and mortgages, she has the right, on discovering that the executor acted from motives of self-interest, to repudiate and rescind the transaction on behalf of herself and the legatee whom she represents as guardian.

EXECUTOR AND ADMINISTRATOR - REPUDIATION OF PAYMENT OF LEGACY — RIGHT OF, LOST BY DELAY.-Where an executor sells a railroad bond in which he has no interest to a widow, as guardian, as payment to a legatee, she cannot repudiate the purchase after three years' delay, though she might have repudiated it at the time of the transaction, as property in which she had no right to invest guardian funds. EXECUTOR AND ADMINISTRATOR-PARTIAL ACCOUNTING NOT CONCLUSIVE.

Where an executor has made a partial accounting, without the presence of or notice to the parties interested, and not otherwise passed upon by the court than by its acceptance of it, the question of allowance or disallowance of items included in that accounting is an open one on the final accounting.

H. S. Sanford and C. Thompson, for the original appellant. G. Stoddard and W. T. Haviland, for the original appellee. PARK, C. J. Mr. Potter, the original appellant, was executor of the will of Ezra Curtis, and in that capacity had, in April and July, 1882, a large sum of money in his hands for payment to the legatees under the will. The legatees were Mary E. Curtis, the widow, and George E. Curtis, his son and

only child, then twelve years old, of whom the widow was the legally appointed guardian. In paying over portions of their shares to the widow on her own account and as guardian of her son, he advised her to take, and she, relying upon his advice and recommendation, took, for herself one hundred shares of the Housatonic Rolling Stock Company at fifty dollars a share, coming to five thousand dollars, and Missouri farm mortgages to the amount of $1,961.55, and as guardian of her son, one hundred shares of the Housatonic Rolling Stock Company at the same price, coming to five thousand dollars, a thousand-dollar bond of the Atchison and Pike's Peak Railroad Company at its face value, and Missouri farm mortgages to the amount of $1,970.34, making a total for herself of $6,961.55, and, as guardian of her son, of $7,970.34. For these two sums, Mr. Potter credited himself in his account with the estate as executor, and presented the items for allowance by the probate court in a partial account rendered on the 14th of June, 1884, which account was accepted by the court. In his final account as executor, rendered to the probate court on the twenty-second day of March, 1886, these items were objected to by the widow on her own account and as guardian of her son, and were disallowed by the court. From that disllowance Mr. Potter took the present appeal to the superior ourt, which affirmed the probate decree in part and in part disaffirmed it, and from that judgment both parties have appealed to this court.

The court below made a finding of the facts in the case, from which it appears that Mrs. Curtis, the widow, prior to her husband's death, had had no business experience whatever; that friendly relations had existed between her husband and Mr. Potter, of which she had known, as well as the fact that he had selected him for his executor; that she did not, in any respect, assume the management of the estate, or direct as to investments of it, but relied entirely upon Mr. Potter, and assented to and accepted such investments as he recommended; and that she had no knowledge that Mr. Potter had any interest in her making the investments that have been mentioned, and that she would not have assented to them if she had known their character, and that they were not securities in which she could lawfully invest funds held by her as a guardian, but that she relied in the matter upon Mr. Potter's advice and recommendation, and upon his relations to the estate.

AM. ST. REP., VOL. VII.-18

Here we have, then, a widow, utterly ignorant of business, confiding in one whom she had known as her husband's personal friend, and whom he had trusted with the settlement of his estate, and acting upon his advice, supposing, as she had a right to do, that he was disinterested in that advice, and was acting solely in her interest, and giving her the benefit of his experience and intelligence, with the most friendly interest in her welfare. He, on his part, stood in a position as executor of her husband's estate, and, as such, a trustee for the legatees under his will, and as the recipient of her confidence and trust with regard to her business affairs, that imposed upon him the obligation of the highest fidelity to her interests, and rendered impeachable in equity any transaction into which she might be led by any want of such fidelity on his part.

Now, what do we find the actual fact to be? The stock of the Housatonic Rolling Stock Company was a speculative stock, of the character or value of which it is found that Mr. Potter knew nothing, except that it was largely invested in by prominent and responsible citizens of Bridgeport, and that it was at that time paying good dividends, and that the manager told him it would continue to do so, and that he sought no further information on the subject. It is found, however, that it was not an incorporated company, but was managed as an unincorporated association entirely by one Hurd. This is a fact that Mr. Potter, himself a stockholder, could easily have ascertained, and was bound to have ascertained before assuming to advise an investment in it by Mrs. Curtis, who, as a stockholder, might be held in law a partner, and so might be subjected to great and perhaps ruinous loss by its insolvency. As a matter of fact, the company paid dividends but two years longer, and at the time of the trial, the stock was worth only from five to seven dollars a share.

We have, then, thus far, conduct on the part of Mr. Potter that is really inexcusable in his advising Mrs. Curtis, to whom he stood in such a relation of confidence, to invest in such a precarious stock; and it is a serious question whether, if this were all, the transaction could stand in equity. But there is a further feature of the case that places the invalidity of the transaction beyond question. It is found that, at the time of these transactions, Mr. Potter was and for some time had been, agent for Hurd, the manager of the Rolling Stock Company, for the sale of the stock, and that he was allowed a

commission of twenty per cent on the sales which he effected, and that he, in fact, received two thousand dollars for the sale of the two hundred shares which he sold for ten thousand dollars to Mrs. Curtis for herself and as guardian of her son. It further appears that instead of Mrs. Curtis seeking his advice, he took the initiative, and sought an interview with her, inviting her to his house at dinner (stating that he had funds of the estate in his hands, but was not well enough to go to see her), and at the interview there he advised her to take this stock as an investment, which she finally did, in entire ignorance that he had an interest in effecting the sale. It is true, his interest was only to the amount of twenty per cent of the stock, and the claim is made that for the other eighty per cent the sale was good, and he liable to make good only the actual profit that he received. But this is a very narrow view of the matter. His interest in making the sale characterized and vitiated the whole transaction. It became, as a whole, a breach of confidence,-an abuse of trust. The matter is not to be measured by the measure of his interest, but is characterized throughout by the vicious ingredient that entered into it: 2 Pomeroy's Eq. Jur., sec. 902, and cases cited.

And the same reasons that invalidate this transaction apply to the sale to her of the farm mortgages. Mr. Potter had the same interest, as an agent selling upon a commission, in this transaction as in the one we have considered. His advice was not disinterested, nor such as in the circumstances she had a right to expect and require. The property in this case does not appear to have depreciated, but her right to repudiate the transaction does not rest upon a depreciation of the property, but on Mr. Potter's concealed interest in the sale. But the mortgages were in fact securities which, as a guardian, Mrs. Curtis had no right to invest in, and in which it was not wise that she, a woman ignorant of business, with whom the great point of consideration must have been safety of investment, should invest her means, and which he, as her confidential adviser, ought never to have recommended to her for that purpose. As the case stands thus far, both the transactions by which the Rolling Company stock and the mortgages were sold to Mrs. Curtis are open to arraignment in equity, and would be condemned by its well-settled principles.

And it is to be observed that courts of probate, though not properly courts of equity, have full power to apply equity principles in dealing with cases like this; so that the question