It appears that Elizabeth P. Chisholm, on the 6th day of June, 1849, then single and a resident of Charleston, in the State of South Carolina, being possessed in her own right of interest-bearing bonds to the amount of eighteen thousand dollars, in contemplation of marriage with Samuel E. Crocker, conveyed her bonds to one James M. Wilson, to be held in trust for herself and contemplated husband.

In that marriage settlement was the following provision, viz.: “ And it is further agreed, that in case the said Elizabeth and the said Samuel shall at any time hereafter, during their joint lives, or the said Samuel, according to the respective estates hereinbefore limited to them, think it beneficial to their or his interest to have *62the aforesaid bonds, or any or either of them, sold, disposed of, invested in, or exchanged for other property, real or personal, and the sale money invested in any other property whatever, or placed at interest, that then the said James M. Wilson, on being thereto requested in writing, by the said Elizabeth and Samuel, jointly, or the said Samuel, survivor, shall sell, dispose of, transfer, invest, or exchange the same or any part thereof, as the case may be, and invest the purchase money in such other property, real or personal, or vest it at interest, as may be required by them, the said Elizabeth and Samuel, jointly, or by the said Samuel, survivor. And such purchased, or exchanged, or substituted property, or invested funds, stocks, or dioses in, action, shall be beld by the said Wilson, trustee, his heirs, etc.., subject to the same uses and trusts as are hereinbefore limited and declared, and to and for no others.”

Subsequently, the marriage was consummated, and Mr. Wilson executed the duties of trustee until Feb. 21, 1853, when he resigned his trust under the deed of the marriage settlement, and on the same day Ira Crocker, of Portland, was appointed, and under his hand and seal accepted the trust “ under the settlement and appointment.” So that Ira, the brother of Samuel E. Crocker, was substituted to all intents and purposes for, and took the place of, the original trasteó. And having received the funds of the wife, the first inquiry is, has he performed his duty in their subsequent investment?

It is unnecessary to trace the history of the investment, at present, until we come down to May 20, 1858, when from the exhibits the following note of that 'date appears:

“ For value received, I promise to pay Ira Crocker, trustee, or order, nine thousand dollars on demand, with interest.

S. E. Cbookek.”

“ Left as collateral security for the above note, three thousand shares of the stock of the Bangor and Piscataquis Slate Company, which stand in the name of Ira Crocker, trustee.”

Here, then, appears to be an investment of nine thousand dollars, *63witliont “the written consent” of the cestui que trust, and in violation of the trust deed. But it is contended that she was cognizant of the transaction, and verbally, or by her silence, waived her remedy. Such evidence, if admissible, must be accompanied with the trustee’s assurances to her, that the investment was safe, and that he would guarantee it, or words to that effect.

Subsequently, Samuel E. Crocker, deceased, as also Ira Crocker, the trustee, whose estate was administered by Mr. Ira G. Kimball, executor.

In the meantime, certain controversies had arisen in relation to certain real estate in the town of Newton, Mass., which had been purchased with the trust funds, and it seems that Mr. Kimball referred the settlement of the plaintiff’s claim against the estate to his counsel in Portland, and it is contended that the same was settled and discharged, and for proof her receipt is produced, dated July 17, 1865, which reads as follows :

“'Received of Ira C. Kimball, executor and trustee under the last will and testament of Ira Crocker, late of Portland, deceased, and trustee by substitution in place of James M. Wilson, under a marriage settlement entered into on the 6th day of June, 184.9, between the subscriber and Samuel E. Crocker, deceased, a release to me of all said Ira Crocker’s interest as trustee in and to the real estate and household furniture at Newton Corner, conveyed by S. E. Crocker to Ira Crocker, in trust, May 20, 1857; also, a note of S. E. Crocker to Ira Crocker, as trustee, for nine thousand dollars, dated May 20, 1858, with three thousand shares in slate quarry, as collateral security for payment of said note; the same being received in full release and satisfaction of all claims or demands in my behalf, against said Ira Crocker’s estate, for all money or property received by said Ira Crocker, as trustee under, and by virtue of said marriage settlement, and for his management and disposal thereof. E. P. CeocKBR. [l. s.]”

This release, if understandingly executed, would operate to bar the plaintiff of all claim in law and equity against the estate of Ira *64Crocker. Was it so made and executed? To prove the contrary, the burden is on the plaintiff; and it is no light matter to plead ignorance of the contents, force, and effect of an instrument of so high a nature ; but, notwithstanding, this she attempts to do, and with how much success remains to be seen.

The plaintiff substantially testifies, that, after she returned to Newton from the South, in 1865, she found her real estate there, and other property, which had been purchased with her trust funds, to be in the name of Ira Crocker, trustee; and being desirous of obtaining the record title in her own name, had correspondence with the executor of Ira Crocker’s estate, who referred her to his counsel in Portland, who would have all the papers in his possession relating to the trust property in Newton, and would, if necessary, transfer to her the title; that thereupon, and in pursuance thereof, she repaired to the place appointed; that her title to the Newton estate was confirmed, and her discharge before stated was executed by her, without her knowledge of its more comprehensive contents, as relates to the nine thousand dollar note and the collateral security; that she read the discharge, or that it was read to her, the preponderance of the evidence is clearly in the affirmative, but whether she understood its import and meaning may be more doubtful. Her statement to the contrary is against the legal presumption. But, considering the nature of the relations between the parties, is not that presumption overcome? We speak now as to her knowledge of the value of the transferred security.

We have already seen that before the discharge, the estate of Ira Crocker was legally responsible to her for the nine thousand dollars. Was the note of her husband, with what is termed the collateral security, an equivalent? and as such did she receive it? If so, was it an equivalent? This leads us to the last inquiry which is as to the security.

It seems that Samuel E. Crocker, some time previously, had purchased one or two hundred acres of land, in the town of Brown-ville, in Piscataquis county, for what consideration it does not appear. Upon that tract was supposed to be a valuable slate quarry. *65It was divided into eight thousand shares, estimated at twenty-five dollars per share, amounting to two hundred thousand dollars as the capital stock, which have been afloat in the market at some price over since. The quarry has been operated at times, but with no particular income to the proprietors at large. It may embody “ the human form divine,” but no Michael Angelo has as yet appeared to uncover or disclose it.

Now, what was the consideration of the release ? First, the note of Samuel E. Crocker, who was then deceased, and his estate rendered insolvent by his brother, Ira Crocker, but subsequently the debts against the estate were paid by each creditor receiving stock at its par value. It was that or nothing.

The three thousand shares at the time of the alleged transfer had been assessed to pay a debt to Ira Crocker, at two dollars and fifty cents per share. The reversionary interest was subsequently sold for two dollars for the taxes, at public auction — for only the taxes and expenses. This shows that the stock, both by the public and the parties concerned, was considered only of nominal value.

Here, then, assuming the discharge to liave been executed as alleged, the facts show “ inadequacy of price and inequality of advantages in the bargain,” in which event equity affords'relief.

Judgment for plaintiff for nine thousand dollars and interest on that sum from December 1, 1860, and costs. Decreed accordingly.

dissenting. I agree in holding that Ira Crocker, not having taken the precaution to fortify himself with the written request of this plaintiff and her husband to invest a portion of the trust fund in the note of the husband, secured by the mortgage of the slate stock, was responsible for the goodness of the investment.

*66But I do not see how we can, with propriety, set aside the settlement and release, which I cannot doubt were deliberately and understanding^ made by the plaintiff after her coverture had ceased — she at the time being aware of the uncertain character of the slate stock which she was receiving.

I concur with Judge Cutting in holding that “this release, if understandingly executed, would operate to bar the plaintiff of all claim in law and equity against the estate of Ira Crocker.”

And it seems to me that the uncontradicted testimony on page 45 of the report, given by the honorable counsel who conducted this settlement on the part of Ira Crocker’s executor, establishes the fact that it was so executed. How can the remark made by the plaintiff to the counsel of the executor in the progress of the negotiation, that she “ ought to have had the whole quarry instead of a part of it,” etc., be interpreted except upon the hypothesis that she understood the character of the adjustment she was making, and that she had doubts about the value of the security she was receiving ?

But there is another and distinct view of this matter, which seems to me entirely conclusive.

I cannot but put some faith in the estimate placed by the plaintiff’s witness, Charles B. Abbott, upon the actual value of the stock at the time of that settlement. See his answer on page 30 of the report. “ My judgment is that the shares in the B. & P. Slate Co., in the summer of 1865” (which was the time of the settlement), “ were then worth the original $12.50 per share, and the assessment.”

Can this plaintiff be allowed to take a stock, which, at the appraisal of her own witness, was, at the time she took it, worth much more than enough to pay her claim, and then, when she has allowed it to be sacrificed by her own improvidence, again have recourse to the estate of her deceased trustee, from which she received it in full satisfaction and discharge of all claims against him as such trustee ?

She ought, at least, to return the stock, if she would rescind the contract of adjustment and release.

*67It does not seem to me that “ the inadequacy of price, or the inequality of advantages in the bargain,” is made out, but only that this plaintiff was so unfortunate as to allow her stock to be thrown away after she had received it in discharge of her claim against the trustee’s estate.

In this dissenting opinion of BaRkows, J., AppletoN, C. J., and Kent, J., concur.