Upon a careful examination of the evidence we are of opinion that the findings of the judge before whom this cause was originally tried are fully justified, and it must therefore be disposed of upon these and the undisputed facts.

The second and fourth findings need not be discussed in connection with the evidence, as they are admitted by the plaintiffs to be all that - they claim; and the fifth is simply the result which the judge deduces from the findings and the admitted facts. The first and third are all that need be considered, and they may be conveniently examined together.

By the first, the judge found substantially that Mrs. Newhall did not understand from the language of Jones that she must be a pauper, in the technical sense of that word, before she could receive a dollar under the will of Mrs. Twomey, but did understand that the amount she would receive would depend upon her future necessities; and further, by the third, that the evidence failed to satisfy him that Mrs. Newhall did not understand the papers or their effect, or “ that she was misled at the time of their execution by the statements of Jones as to their effect; she did understand that she was to receive such sum as should be awarded in full for her interest under the will.” These findings are we think correct. While Jones said to Mrs. Newhall that she would not receive under the will unless she was a pauper or was destitute, that her sister would get something because she was a widow, but that “ she (Mrs. Newhall) had a husband and was not destitute,” he also told her that Mr. Newhall (referring to the counsel in the case) said she would receive what would be necessary for her, but that her sister needed more than she did. It appears from Mrs. Newhall’s own evidence that she fully appreciated the provision which the will had made for her; for she says “ as the will stood I understood my need was to be determined by the trustee. I un*258derstood this provision of the will; ” and again, “ I knew what the will said; I was to have half if I needed it.” Upon these statements it cannot be doubted that she understood fully that the amount she was to receive under the will was to be determined by the judgment of the trustee according to her necessities, and this understanding was correct.

It is equally clear that she understood that, in place of the uncertain interest which she had under the will by virtue of this provision, she was to receive, by the arrangement made upon the assignment of her interest to Jones, such sum as the committee agreed upon awarded her. She says, “At the time of signing I got nothing, and I expected to leave it to the committee to settle my share, believing them to be good men.” She says further that she was present at the meeting of the committee, and adds, “ I thought that the committee were to determine how much I was to have.” With these explicit statements it might fairly be treated as proved that she comprehended the agreement upon which she had entered, and it cannot certainly be held to have been shown that she was misled as to the effect of the papers by Jones, or failed to understand the agreement.

The plaintiff claims also to set aside the contract made by her, upon the ground that she was induced to enter into it by the persuasions of Jones, and that as it has not been for her advantage and the relation of trustee and cestui que trust existed between herself and Jones, she is entitled so to do. All her rights, however, were under the will of Mrs. Twomey, and she had none to the estate of John M. Twomey, on which estate Jones was the administrator. By all parties it was fully recognized that the balance left upon settlement of that estate was to be paid over to the executor of the will of Mrs. Twomey. This fact did not, however, place Jones in any fiduciary relation to Mrs. Uewhall, who was a beneficiary under Mrs. Twomey’s will, and his conduct is not to be tested by the strict rules which have been frequently applied to transactions between trustee and cestui que trust.

The principle upon which it has been held that purchases made by a trustee, as well as other persons occupying fiduciary relations, of the property entrusted to them may be avoided by the parties interested is, that the trustee so purchasing has placed himself in a situation inconsistent with the due execution of his *259trust. Litchfield v. Cudworth, 15 Pick. 23, 31. Yeackel v. Litchfield, 13 Allen, 417, 419. It has however, no application here.It was competent for Mrs. Newhall, acting in connection with such others as were beneficially interested under the will of Mrs. Twomey, to agree to receive instead of the uncertain and contingent provision made for her by Mrs. Twomey, either a definite sum of money, or one to be fixed by any person to whose award she might agree. Smith v Harrington, 4 Allen, 566. Bowditch v. Andrew, 8 Allen, 339. Russell v. Grinnell, 105 Mass. 425. Unless she can show that she was misled either as to her rights under the will, or as to the effect of the agreement she made in reference to them, the contract should be performed by her. The question which would be presented if she had been persuaded to enter into this by Skinner, who was the executor of Mrs. Twomey’s will, would differ entirely from that now before us. There would then be much justice in saying that as the allowance to be made her depended solely upon his discretion, he could not be permitted to induce her to accept any different provision, as, if she did not yield to his persuasion in the matter, he might be wrongfully tempted in the exercise of his discretion. Whether she was influenced or not by Jones, however, he had no power or discretion as to her rights under Mrs. Twomey’s will. It is for her to satisfy the court that she has been misled by him, and she cannot insist that he shall clear himself from suspicion in regard to it. As however he was a person to some extent confided in by her, and as his persuasions and conduct had an effect in inducing her to assent to the arrangement actually made, it is proper to consider whether any circumstances exist tending to show fraud on his part, and perhaps it might be more readily inferred against him than against another who had not so interested himself 'in the matter. None such, however, appear : from the transaction he derived no benefit pecuniarily or in any other way. His conduct may have proceeded from mere officiousness, or from an honest belief that the course adopted would cause some persons to be provided for as Mrs. Twomey had desired that they should be, while she had failed so to do, but there is nothing in it that should induce us to set aside the contract voluntarily made by the plaintiff. Bill dismissed