
    *Barrett & Wife v. Morriss’ Ex’ors, & als.
    April Term, 1880,
    Richmond.
    Wills — Advancements — Interest on. — M died in 1867, having made large though unequal advancements to his four children. By his will he gave an annuity of $2,000 to his wife, secured on all his estate, and directed his real estate should not be sold during her life; and gave some small-legacies. He then says — What shall remain of my estate, after funeral charges, expenses of administration and debts and bequests shall have been paid and satisfied, I direct to be so divided as that there shall be four shares. Whereof the first, together with $31,000, he gives to C; and in the same manner to each of the other three children, stating the advancement made to each; and concludes — shall severally and respectively be equal to one another. Mrs. M died in 1872, but owing to suits for large debts of uncertain amount sued for and not ascertained until December, 1875, the estate was not ready for division until that time. Held: Interest on the excess of advancements to the children is to be charged from this date.
    This was a suit in equity in the chancery court of the city of Richmond, brought in December, 1873, by Charles Y. and Robert F. Morriss, executors of Richard G. Morriss, deceased, to have a final settlement of their accounts, and a division of his estate. Richard G. Morriss died in 1867, possessed of a large estate, and leaving a will which was duly admitted to probate in the circuit court of Richmond. In his lifetime he made large though unequal advances to his four children, viz: Charles Y. Morriss, Robert F. Morriss, Ann E. the wife of William N. Barrett, and ■ Marcella C. the wife of E. S. Hammond. *In the progress of the cause the accounts were settled. In December, 1875, there was a decree for a sale of the real estate, in part to pay a. large debt which had been established by the decree of the court in another suit against the executors, and for a division; and the sales having been made the only remaining subject was the division of the proceeds of the land among the legatees of Richard G. Morriss. In order to that it became necessary to fix the date from which interest should be charged upon advancements made to the said legatees.
    The commissioner to whom the subject was referred, looking to the provisions of the will which forbade a sale of the land in the lifetime of Mrs. Morriss, who lived until 1872, and to the suits pending against the estate for a large and uncertain amount, not decided until December, 1875, fixed upon the 11th of December, 1875, as the date from whence interest on advancements should be charged; and his report was confirmed by the decree of the court made on the 12th of May, 1877. From this decree Barrett and wife applied to a judge of this court for an appeal; which was awarded.
    The provisions of the will of Richard G. Morriss, and the facts bearing on the question are sufficiently stated in the opinion of the court delivered by Staples, J.
    John A. Meredith and Guy & Gilliam, for the appellants.
    E. D. Brown, John Lyon, and John Howard, for the appellees.
    
      
      The principal case is cited in Smith v. Yancey, 81 Va. 88; Davis v. Hughes, 86 Va. 909, and is distinguished in Kyle v. Conrad, 25 W. Va. 786.
    
   STAPLES, J.,

delivered the opinion of the court.

The court is of opinion the chancery court did not err in fixing upon the 11th of December, 1875, as the period from which it was proper to charge the legatees *of Richard Morriss respectively, with interest upon any excess of advancements ' either of them may have received. The testator in the second clause of his will, gave to his wife an annuity for life of two thousand dollars, to be paid her in half yearly installments, out of the rents and profits and income of his estate; and in order to secure its payment beyond any contingency, he directed that no sale of his real estate should take place as long as she should live.

By the fifth, sixth, seventh, and eighth clauses of his will the testator confirmed to his four children the advancement charged to them respectively; in his account book; that is to say, to Charles Y. Morriss, $31,-000; to Robert F. Morriss, $34,000; to Mrs. Barrett, $32,891; and, to Mrs. Hammond, $35,121. After these and other bequests he makes the following provision:

“9. What shall remain of my estate after my funeral charges, expenses of administration and debts, and the preceding devises and bequests shall have been paid and satisfied, I direct to be so divided as that there shall be four shares; whereof the first, together with thirty-one thousand dollars, and any further advancement I may make hereafter to my son, Charles Y. Morriss; the second, together with thirty-four thousand dollars, and any further advancement I may hereafter make to my son, Robert F. Morriss; the third, together with thirty-two thousand eight hundred and ninety-one dollars, and any further advancement I may hereafter make to my daughter, Ann E. Barrett; and the fourth, together with thirty-five thousand and twenty-one dollars, and any further advancements I may hereafter make to my daughter, Marcella C. Hammond, shall severally and respectively be equal to one another.”

His language is — “What shall remain of my estate after my funeral charges, expenses of administration and debts, *the preceding devises and bequests shall have been paid and satisfied.” It is apparent therefore that no final division of the estate could be made until these objects were accomplished. The testator knew they would require time. He knew the advancements made to some of his children were greatly in excess of those madq to others. He was very accurate and careful in keeping his accounts with each of them, and very exact in prescribing the mode by which the deficiency in each case should be made up. Had it been his intention that either of the legatees should pay interest upon any excess received in the testator’s life time, it is fair to presume he would have so provided. The legatees were to be made equal it is true; not, however, by charging either with interest upon any excess, but by giving to all an equal share of the estate. And this is precisely what the law prescribes in cases of advancement, in the absence of any contrary provision by the testator. The property or money belongs to t{ie legatee or distributee, and not to the estate of the decedent. The legatee or distributee is not accountable for interest, or for rents and profits, upon the amount received by him. If he can be held so liable at all for interest, it can only be from the time the estate is ready for a final distribution and division. See Cabell, ex’or, v. Puryear et als., 27 Gratt. 902.

The court is further of opinion, that the chancery court did not err in fixing upon the 11th of December, 1875, as the period for a final distribution of the estate among the parties entitled under the will. The commissioner to whom the whole matter was referred for investigation, has conclusively shown that the estate was in no condition for such distribution at an earlier day. The suit of Davis v. Morriss’ ex’ors was instituted in August. 1871, and was for an amount large and unascertained until by the decree of December, 1875, *the liability of the estate was determined to be $8,452.85, rendering necessary a sale of a portion of the real estate. The commissioner states that other suits were pending and undetermined against the estate involving a large amount in the aggregate, which rendered impracticable any final division of the estate earlier than the 11th of December, 1875. The facts stated by the commissioner are not controverted, and are conclusive of the correctness of the decree in this particular.

Upon the whole case the court is of opinion there is no error in the decree, and the same must therefore be affirmed.

Decree affirmed.  