
    
      Arrington v. Cheatham & Wife.
    November, 1843,
    Richmond.
    (Absent Cabeia, P.)
    Wills — Payment Of Legacy — Personal Liability of Representative — Sureties.—A testator, by his will, after directing'that in the first place all his iust debts shall be paid, devises and bequeaths to his wife, during her life, his plantation, all his stock and furniture, and six slaves by name; and then, after various specific devises and legacies to his children, directs as follows: “I desire that my wife will, as soon as convenient after my decease, purchase and deliver to my granddaughter C. C. a negro girl of about £50 price, which I give to my said granddaughter and her heirs.” The wife is also named executrix. She qualifies as such, giving a bond with sureties; and the whole personal estate, other than specific legacies, is exhausted in payment of the debts. The widow having accepted the property given her by the will, and taken possession of the whole of it, Hbm), she is liable personally as legatee, not as executrix for the payment of the legacy to the granddaughter, and the sureties in her executorial bond are nowise responsible for the same.
    Guardian and Ward — Executor Guardian De Facto— interest on Ward’s Legacy  — Nor several years an Infant legatee resides with and is maintained by her grandmother, who is chargeable with the payment of the legacy, the annual Interest of which is less than the annual value of the maintenance: Hmo, the grandmother shall not be charged with interest on the legacy during the period of such maintenance.
    Appellate Court — Decree—Reversal.—A decree being rendered against the sureties of an executor, and the appellate court being of opinion that they are not liable, decree reversed and bill dismissed as to all of tlaem, although only one had appealed. But though a sum (less than 100 dollars) was erroneously decreed against a succeeding administrator, as to whom the hill ought to have been dismissed, yet he not having appealed, no correction was made hy Ae appellate court in this part of the decree, the appellant being in no wise interested therein.
    Joseph Tweedy senior, late of Campbell county, died ill the latter part of the year 1810, having duly made and published his last will and testament, whereby, after directing that in the first place all his 493 just debts *should be paid, he devised and bequeathed to his wife Fanny, during her natural life, the tract of land whereon he then lived, all his stock and furniture of every kind, and six slaves by name. He then made various specific devises and bequests to his children (seven in number), including the remainder in the land and slaves given to his wife for life. These devises and bequests to his wife and children comprised his whole estate, real and personal, except one old slave, valued in the appraisement at £20,, and some produce and provisions valued at something less than £40. Then followed a clause in these words: ‘ ‘I desire that my wife will, as soon as convenient after my decease, purchase and deliver to my granddaughter Caroline Coleman a negro girl of about £SO. price, which I give to my said granddaughter and her heirs.” The testator concluded his will by appointing his wife executrix and his two sons Robert and John executors.
    The will was proved in Campbell county court on the 9th of December 1810, and Fanny Tweedy the widow and John Tweedy qualified as executors, giving bond with Robert Tweedy (who renounced the execu-torship), Archer Williamson and Adler Ar-rington, as their sureties.
    Caroline Coleman the granddaughter having, about the year 1819, intermarried with Matthew Cheatham, the said Cheatham and wife, in 1821, filed their bill in the superior court of chancery holden at Lynchburg, against Fannjr Tweedy and John Tweedy executors of Joseph Tweedy, and the aforesaid sureties in their executorial bond, setting forth the will of the testator, and praying satisfaction of the legacy thereby given to the female plaintiff.
    Fanny Tweedy the executrix answered, that at the time of the testator’s death, his estate was very much involved in debt, and not being very productive, it had required all this respondent’s exertions to dis-494 charge the '’‘debts, which she had at length with much difficulty accomplished. That it had never been convenient for her, since the testator’s death, to purchase a slave for the female plaintiff at the price mentioned in the will. That very shortly after the testator’s death, the father of the female plaintiff died, leaving her mother and herself, with five other infant, children, in very straitened circumstances ; whereupon the respondent took the female plaintiff, then only 6 or 7 years old, to live with her, and thenceforward until her marriage (a period of about ten years) had boarded, clothed and educated her, besides furnishing her, at the time of her marriage, with some articles of personal property. For these supplies, and the maintenance and education of the female plaintiff, the respondent claimed a reasonable compensation, and prayed an account to ascertain the same, and a decree accordingly.
    Pending the cause, Fanny Tweedy died, and her estate was committed by the county court of Campbell to Thomas Dixon, sheriff of the said county, for administration. John Tweedy the executor having removed out of the commonwealth, administration de bonis non with the will annexed of Joseph Tweedy the testator was granted to John Roper.
    An amended bill was afterwards filed by the plaintiffs, making defendants the said administrator of Fanny Tweedy, the said administrator de bonis non of Joseph Tweedy the testator, all the children of the testator (devisees and legatees in his will), John Tweedy as executor, and the sureties aforesaid in the executorial bond; praying a decree for the legacy of £50. with interest from a reasonable time after the testator’s death, or for a slave such as the will described, with reasonable hires from the time when she ought to have been purchased according to the true intent of the said will.
    Roper the administrator de bonis non of Joseph Tweedy the testator, Flizabeth Coleman one of the legatees, Robert 495 *Tweedy another legatee, who was also a surety in the bond given by the executors, and Adler Arrington another surety in the said bond, severally put in answers, submitting to the court the question whether, upon a just construction of the will, the legacy to the plaintiff Caroline was chargeable upon the testator’s estate generally, or only upon the portion thereof devised and bequeathed to the widow. Roper in his answer also stated, that the widow took possession of all the property, real and personal, given her by the will, and remained so possessed until her.death. The estate, he said, which had come to his hands as administrator de bonis non, amounted only to 45 or 50 dollars in value.
    The other defendants, though regularly proceeded against, failed to answer.
    In the progress of the cause, accounts were directed, 1. of the administration of Joseph Tweedy’s estate by Fanny Tweedy and Jofin Tweedy his executors; 2. of the administration of the same estate by John Roper the administrator de bonis non; and 3. of the annual value of the life estate of Fanny Tweedy under the will of the said testator. These accounts were taken accordingly. By the first it appeared, that the executors of Joseph Tweedy had paid all the debts due from the estate, amounting to ¿346. IX. and delivered all the specific legacies given by the will: that, exclusive of specific legacies, the assets which came to their hands to be administered (including hires, during the years 1812, 1813, 1814 and 1815, of three of the slaves bequeathed to the widow for life) amounted only to ¿347. 11. : and that, allowing a commission of five per cent, to the executors, there was a balance due to them from the estate, on the 27th of March 1817, of ¿43. 18. Secondly, the account of Roper’s administration on the estate of Joseph Tweedy shewed a balance due from him to the estate, on the 15th of February 1834, of 9 dollars 49 cents. Thirdly, it appeared that the 496 annual value of *the property devised and bequeathed to Fanny Tweedy for life by the will of Joseph Tweedy, was about 170 dollars.
    By depositions taken and filed in the cause, it appeared that Caroline Coleman resided at least eight years with her grandmother mrs. Tweedy, who sent her to school for two or three years of that period. In the opinion of the witnesses, the schooling was worth 25 dollars, and the board worth 160 dollars, or 20 dollars per annum. It further appeared, that when Caroline was married, mrs. Tweedy supplied her with several articles of furniture and ,a small stock of hogs, estimated to be worth 86 dollars.
    The cause having been regularly transferred to the circuit superior court of Campbell county, came on to be heard in that court on the 1st of October 1834; when the court, expressing the opinion that the legacy of ¿50. to the female plaintiff should have been paid out of the profits of the life estate of Fanny Tweedy, the widow and one of the personal representatives of Joseph Tweedy deceased, and that she as executrix and her sureties were bound to pay the same, decreed that John Roper, administrator as aforesaid, pay the plaintiffs 9 dollars 49 cents, the amount appearing by the commissioner’s report to be in his hands, with interest from the 15th of February 1834 ; and that the same John Roper, administrator as aforesaid, out of the estate in his hands if any he had to be administered, and Robert Tweedy, Archer Williamson and Adler Arrington, the sureties of Fanny Tweedy in her executorial bond, pay the plaintiffs ¿50. or 166 dollars 66 cents, with interest from the 31st of December 1811 until paid (subject to a credit .of 9 dollars 49 cents, above decreed against the said John Roper administrator as aforesaid), and the costs of this suit: the court being of opinion that the other executor John Tweedy was in no wise bound for the debt, interest and costs aforesaid.
    497 *On the petition of Adler Arring-ton, one of the sureties, an appeal was allowed him from the decree.
    The cause was argued by C. and G. N. Johnson for the appellant, and by Garland and Grattan for the appellees,
    upon the following objections taken by the appellant’s counsel to the decree:
    1. That mrs. Tweedy was required to pay the legacy of ¿50. not as executrix, but as legatee, and her sureties were in no manner responsible for it.
    2. That if the executors were chargeable with the payment of this legacy, it was a joint charge upon them both, for which both were bound in exoneration of their sureties.
    3. That an account of mrs. Tweedy’s estate ought to have been taken.
    4. That credit should have been allowed mrs. Tweedy for the board, clothing and education of the plaintiff Caroline, and for the advancement made to her upon her marriage.
    
      
      See monographic note on “Guardian and. Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
    
      
      Joint Judgments — Reversal.—At common law, a joint judgment erroneous as to some is erroneous and must he reversed as to all. Vance Shoe Co. v. Haugrht, 41 W. Va. 282, 23 S. E. Rep. 556, citing- the principal case; Jones v. Raine, 4 Rand. 386; Vandiver v. Roberts, 4 W. Va. 493; Lyman v. Thompson, 11 W. Va. 427; Lenows v. Lenow, 8 Gratt. 349; Purcell v. McCleary, 10 Gratt. 246; Gray v. Stuart, 33 Gratt. 358.
      See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   STANARD, J.

If the testamentary provision for the appellee Caroline, contained in the will of Joseph Tweedy, were a pecuniary legacy for which the legatee might assert a claim on his executors, and they in their executorial characters might be held responsible after the surrender of the legacy to the widow, on whom the provision for the said Caroline is charged, no recovery could be had on such claim, because it clearly appears that the personal estate of the testator, exclusive of debts and specific legacies, supplied no fund to pay it. If it be but a mere charge on the legatee, the widow, on whom the duty of making the provision is imposed by the will (and such, I think, is its true character), that legatee, by the acceptance of the legacy, which by just intendment is to be regarded as the consideration for the duty, incurred a responsibility to make the provision, *which charged her personally as legatee, and not executorially in respect to assets for which, as executrix, she might be liable. The title of the female appellee to the provision became complete, when the legatee, on whom the, duty of making it was imposed, got the legacy in consideration of which it was imposed. The title to the provision was consummate at the moment that the subject on which it might be charged became vested in the legatee as such; and at the same time all executorial responsibility therefor terminated, and the personal responsibility of the legatee alone remained.

In either, or any just view of the case, the sureties for the performance of the ex-ecutorial bond were not responsible for the failure to make the provision, of the legatee on whom the duty of 'making it was imposed, and who had received as legatee the subject bequeathed to her, in consideration of which she was required by the will to fulfil that duty. After mrs. Tweedy had received the legacy bequeathed to her, she alone was responsible to the female appel-lee.

Mrs. Tweedy being- alone responsible to the female appellee, the decree ought to have been against her representative only, and the bill ought to have been dismissed as to the other parties. But the representative of Joseph Tweedy, against whom a decree for the small. sum of 9 dollars 49 cents was rendered, not having appealed, and the appellant being in no wise interested in that part of the decree, I think that part of it is not before this court for correction.

As the female appellee was supplied with board &c. by mrs. Tweedy until her marriage in 1819, the representative of mrs. Tweedy ought not to be held responsible for interest on the £SO. during that time.

PT3R CURIAM. This court is of opinion that the decree, so far as the appellant is directly or indirectly interested therein, that is, so much thereof as subjects the *sureties in the executorial bond to responsibility, be reversed and annulled, and that the appellees pay to the appellant the costs expended in the prosecution of his appeal. And this court proceeding to render such decree as the court below ought to have rendered, instead of that hereby reversed, doth adjudge, order and decree that Thomas Dixon sheriff of Campbell, to whom was committed the estate of Fanny Tweedy, out of the assets of his intestate in his hands to be administered, if so much thereof he hath, pay to the appellees the sum of 166 dollars 66 cents with interest thereon from the 1st of January 1819 till paid (subject to' a credit of 9 dollars 49 cents as of the ISth of February 1834), and their costs expended in the prosecution of their suit in the superior court; that the bill of the appellees, as to the defendants Robert Tweedy, Archer Williamson and Adler Arrington, be dismissed ; and that the appellees pay to those defendants the costs by them in their de-fence in the superior court expended.  