
    *Cabells v. Puryear & als.
    November Term, 1876,
    Richmond.
    Wills — Advancements—Interest on — w, in his lifetime, made advancements to some of his children. By his will he gave his estate to his widow for her life, and authorized her to make advancements to their children; and he directed that at her death his estate, including- these advancements, should be'equally divided among his children. Mrs. W did make advancements to all of the children, but to one much less than to the others. She died in February 1868. but the estate was not ready for a division until October 1874. Held : Interest should be charged to each legatee on the excess of the advancements made to him or her from the death of Mrs. W in 1868 until the time of the division in 1874.
    This is a sequel to the case of Puryear v. Cabell & als., 24 Gratt. 260, and all the facts upon which the only question in this appeal depends, are stated in that report of the case. That question relates to the time ■when interest shall be charged upon the advancements to the legatees by Colonel “Wilson and his widow, in order to effect the equality directed by the testator among his children.
    When the cause went back, the court referred it to a commissioner to take an account of the advancements, and of the proceeds of the sale of the estate made by commissioners in 1874. From the report of commissioner Mosely it appeared that the’ advancements made to all the children by Colonel Wilson and Mrs. Wilson, were $97,419.82, and that the estate yet to be divided amounted to $33,923.37 as cash on the 16th of October 1874; the two sums making $131,343.19; and giving to each legatee $16,417.89. *From this sum the commissioner deducted the advancements made to each legatee, charging' no interest on the advancement; and showing the advancement to be paid to each legatee out of the fund to be distributed. This statement was excepted to by the Cabells; and a special statement was made by the commissioner in accordance with their views. By this statement, charging Mrs. Puryear with the amount of her advancements and interest thereon from the death of Mrs. Wilson up to October 1874, she had received more than her share by $1,618.59; what she had received was therefore left out of the further statement of the account. The amount of advancements received by the other seven legatees was $81,059.82; six of them receiving sums ranging from $12,090 to $13,883; whilst the seventh, Mrs. Cabell, received but $3,458. In this statement each of these legatees was credited with one-seventh of $81,059.88, the amount of the advancements, and also one-seventh of the sum in hand, each of them $4,846.19, making $16,426.16, and then was charged with the amount of his or her advancements, with interest thereon from Mrs. Wilson’s death, in February 1868, until October 16th, 1874, when the fund to be distributed was in the hands of the court; and thus showing the amount which was due to each legatee to be paid out of this fund.
    The cause came on to be heard on the 30th of April 1875, when the court overruled the exception to the commissioner’s report, disallowed interest on the advancements, and made a decree accordingly, distributing the fund ahiong the eight legatees. And from this decree the children of Mrs. Cabell applied to this court for an appeal: which was allowed.
    Ould & Carrington, for the appellants.
    *F- F. Bouldin, for the appellees.
    
      
       Advancements — Interest on. — See citation of principal case in Barrett v. Morriss, 33 Gratt. 273, and note; monographic note to Watkins v. Young, 31 Gratt. 84, on “Advancements Generally”; monographic note on “Interest Generally” appended to Fred v. Dixon, 27 Gratt. 641.
    
   Christian, J.,

delivered the opinion of the court.

This case is for the second time before this court, and is reported under the name of Puryear & als. v. Cabell & als., 24 Gratt. 260.

In the record now before us, a single question is presented for our consideration. After the case was sent back to the circuit court, that court proceeded to convert the estate into money, and by its decree rendered on the 30th April 1875, directed a distribution thereof among the legatees. The only error now complained of is that in directing the several legatees to be charged with advancements made by the testator in his lifetime, and by his widow in her lifetime, no interest is charged on the amount of said advancements.

The appellants insist that the death of the widow was the period fixed by the testator for the division, that that was the date at which all these advancements were to be brought into hotch-pot and accounted for, and that if this division was postponed for any cause, equality could only be attained by charging each legatee with interest from the period fixed by the will for division, to wit: the date of the death of the widow of the testator.

The circuit court refused to allow interest upon any of the advancements made to the legatees either by. the testator or by the widow, without respect to the excess or deficiency of the advancements made to the different legatees. The appeal was allowed to bring up for review here this single question.

In the consideration of this question we are first met by the objection of the appel-lees, that it is already res adjudicata. *It is insisted that the same question was definitely settled by the opinion of this court in Puryear v. Cabell, supra. To sustain this contention, an extract from the opinion of Judge Staples, concurred in by the other judges, is relied on by the appellees’ counsel, and which is as follows: “In regard to the charge of interest upon advancements, no exception was taken in the court below to the report of the commissioner for the failure to allow it; and it may be a question how far it is competent to urge the objection in this court. However this may be, the general rule is that the legatee or distributee is to be charged with the value of the advancement without interest. There is nothing in the will of Mr. Wilson or the circumstances of this case which requires the application of a different rule.” 24 Gratt. 266-7.

This is the only declaration or allusion made in the opinion to the subject of interest. In the decree of this court nothing is declared on the subject.

But a reference to the record in the case of Puryear and Cabell (24 Gratt.) will make it perfectly apparent that neither Judge Staples’ opinion nor the decree of the court in that case had the remotest reference to the question raised upon the record now before us. In that case the proposition of the counsel of the Cabells (the question not being raised by any exception to the commissioner’s report) was that, on advancements made by 'the testator in his lifetime interest should be charged from his death, and on advancements made by his widow (the life-tenant) interest should be charged from the time they were respectively received by the legatees. It was in reference to this proposition that Judge Staples expressed the opinion (undoubtedly correct) that “the general rule is that the legatee or distributee *is to be charged with the value of the advancement without interest.”

The question now before us is a very different one. In the former case, the question was, if made at all by the pleadings, whether interest should be charged from the death of the testator on advancements made by him, and from the date of their receipt on advancements made by the widow. In the case before us the question is, if the death of the widow is the date of distribution, must not interest be charged from that date to the day of actual distribution among the legatees. This is wholly a different question, and it is one which not only did not arise but could not have arisen in the former case. At that time the fund for distribution was not in the hands of the court. That fund was made up of sales of real estate which had not been collected, if indeed it had been sold, and of rents and profits of the same for a very brief period. The death of Mrs. Wilson, the time fixed by the will for the distribution, and accounting for the respective advancements, had occurred only a few months before the filing of the bill in the former case; and therefore the question of charging interest as now raised could not and did not arise in that case.

The court is therefore of opinion that the question raised in this appeal is not res adjudicata, not having been before raised or passed upon in this case.

The court is further of opinion, that the decree of the circuit court is erroneous, so far as it fails to charge interest on any part of the advancements made to the legatees respectively, without respect to the excess or deficiency in such advancements, on the date when equal distribution was to be made.

The will of the testator, Nathaniel Wilson, contains the following clause:

*5th. ■'‘At the death of my said wife, Sarah, the whole of my estate, both real and personal, to be equally divided between my following named children, to wit:” (naming them) “to them and their heirs forever; such of them as have already received or who may hereafter receive a part of my estate to account for it upon a division. ” In a former clause of his will the testator had given to his wife for life, subject to certain bequests, all his real and personal estate, to be held, controlled and managed by her, at her entire discretion; and he authorized her, as her children became of age or married, to give them or either of them such part of her estate as she might think she could spare: she being the sole judge of it in every respect.

Advancements had been made by Mrs. Wilson in her lifetime of large amounts to all of the children, except to Mrs. Cabell. Mrs. Puryear had received her full share of the estate; and the other children had received — some over $12,000, others over $13,000, while Mrs. Cabell had received only $3,458. Now the testamentary scheme of Mr. Wilson was, that his whole estate should be equally distributed among the legatees at the death of Mrs. Wilson. That was the time fixed as the period of distribution, and at that time they were to account for the advancements which had been made prior to the death of Mrs. Wilson to each of the legatees respectively. If on that day the distribution could have been made, the mode of distribution would have been that adopted by the circuit court — that is, making each party equal by reducing the excess and making up the deficiency between the legatees without interest. But the distribution was not made until more than six years after Mrs. Wilson’s death, and for that period six or seven of the legatees held in their hands large amounts in excess of what *they were entitled to upon an equal distribution. This plainly was not their property, but belonged to the estate, and having enjoyed the use of it they ought to be charged with interest. The principle upon which the general rule stated by Judge Staples in Puryear v. Ca-bells (supra) rests is this, that the party advanced is not to be charged with interest, because the advancement in his hands is no part of the estate; it belongs to him, and he cannot be charged interest on his own, unless there be something in the will subjecting it to such a charge.

In the case before us, the excess held by the several legatees over and above the amount they were entitled to on the date fixed by the testator as the period of distribution was the property of the estate, in which all the distributees were equally interested, and upon this excess in their hands they must be charged with interest from the 5th February 1868, the date of Mrs. Wilson’s death, to the 15th October 1874, the date on which the fund was in a condition to be distributed, as shown by the alternate statement made by the commissioner.

The court is therefore of opinion that the said decree of the said circuit court be reversed with costs, and the cause remanded to said circuit court for further proceedings to be had therein in accordance with the principles herein announced.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the said decree of the said circuit court is erroneous, so far as it omits to charge with interest those legatees whose advancements, made prior to the death of Mrs. Wilson, were in ^excess of the amounts they were respectively entitled to upon an equal distribution of the whole estate of the testator, if it could have been made on that day; this court being of opinion that the period of distribution fixed by the testator was the date of the death of Mrs. Wilson; and that all the legatees who on that day held an excess of the amounts advanced to them over what was an equal share of the advancements made prior to the death of Mrs. Wilson, should be charged with interest on such excess from the period of Mrs. Wilson’s death, to wit: the Sth of February 1868, to the ISth October 1874, the preiod when the fund arising from the sale of the real estate may be considered as in the hands of the court for distribution, and that interest be allowed on the deficiency of advancements to Mrs. Cabell, according to the principles of the alternate statement made by commissioner.

It is therefore decreed and ordered that for this error the said decree of said circuit court be reversed and annulled, but be affirmed in all other respects, and that the appellants recover against the appellees their costs expended in the prosecution of their appeals here. And the cause is remanded to said circuit court, to be further proceeded in in accordance with the principles herein declared.

Decree reversed.  