
    *Crouch & als. v. Davis’ Ex’or.
    January Term, 1873,
    Richmond.
    1. Wills — Creditor — Legatee — Modern Tendency.— Though the rule that a legacy will be held as a satisfaction of a debt due from the testator to the legatee, still nominally exists, the tendency of the more recent decisions Is to consider the bequest a bounty, and not the discharge of an obligation; and the courts now lay hold of any circumstances, however trifling, for the purpose of repelling the presumption that the legacy was intended as a satisfaction of the debt.
    2. Sames — Same—Same.—D., an unmarried man, made his will in March 1859, and died in February 1863. By the first clause of his will he gives to his three nieces $15,00(1, to be equally divided between them; and by a subsequent clause he gives to their brother $5,000. He was guardian of his nieces; and was indebted to them as guardian at the lime he made his will. There was a legacy of $20,000 to Ann, a servant, and her children, whom he set free, which he directed his executors to invest in State bonds and hold for their benefit; and whatever balance he might be worth he gave to his sister C. and her children. He owned a considerable estate, real and personal. Hum: That under the circumstances of his case, the legacy to the nieces was not in satisfaction of the debt due to them.
    3.Investment in Confederate Bonds by Order of Court. —íThe executor in 1864 filed his hill to have the direction of the court in the administration of the estate; and under an order of the court authorizing him to invest the moneys in his hands in Confederate or State bonds, he invested in Confederate . bonds. These, and nearly the whole of his testator’s personal estate, became worthless by the results of the war. And it turns out that he owed a considerable amount of debts.
    Held;
    i. Legacies — Charge on Real Estate. — The legacies, as well as the debts, are a charge upon the real estate.
    *2. Executor —Responsibility—Legatees.—The executor is not responsible, under the circumstances, for the failure to invest the $20,000 given to Ann and her children, in bonds of the State of Virginia.
    3. Same — Same—Creditors.—As it did not appear that the creditors were willing to receive the Confederate currency, the executor is not responsible for the loss sustained by the investment.
    4. Confederate Currency — Legacies—How Payable.— Though the testator died in 1863, when Confederate treasury notes wrere the currency of the country, yet the will having been made in 1859, this is the time to which we are to look to ascertain his intention; and the legacies were not, therefore, payable in Confederate currency.
    5. Executors — Choses in Action Liability- — Bur den of Proof. — it appearing that a large number of debts were due to the deceased, many of them by persons living out of the State, others reported bad, and others good or doubtful — if the executor has not brought suit to recover those reported good or doubtful, from persons living in the State, the burthen is on him to show that they could not be recovered.
    6. Domiciliary Executor — Foreign Agent. — The testator owning land in Arkansas, and there being no agent of his there, the executor in Virginia may employ and pay an agent to attend to it.
    Hector Davis, a citizen of Richmond, died in February 1863. He left a will which bore date on the 31st of March 1859, and which was duly admitted to probate in the Circuit court of the city of Richmond.
    By the first clause of his will the testator gave to his nieces Jennie, Sallie and Bettie Davis, the sum of fifteen thousand dollars, to be equally divided between them. He then gave to his servant woman Ann, her freedom, to be removed out of the State with her four children; and after their removal, the sum of twenty thousand dollars; Ann to have the interest on one-fifth of the amount, and the interest of the balance to be expended in raising the children until they come of age; then the principal to be given them. And he wished the said amount to be invested in State stock by his executors, *and applied as aforesaid. He to his R. D. James the sum of five thousand dollars. And then he says: ‘ ‘Whatever balance I may be worth I want given to my sister Ann Crouch and her children.” He appointed R. D. James and Franklin Matthews his executors; the first of whom qualified as such.
    The testator left a large estate. His stocks in various banks were appraised in the then currency, at 867,980, his other stocks, public bonds, slaves and furniture were appraised at 23,040=891,020. He owned besides, real estate in Richmond and in the State of Arkansas, and there were many debts due to him; many of them, however, due from persons living' in the southern states. He was also largely indebted to others at the time of his death.
    In the year 1864 James, the executor, instituted a suit in equity, in the Circuit court of the city of Richmond, against all the legatees in the will, asking for directions in the administration of the estate. In this suit an order was made on the 25th of November 1864, that James should deliver to Mrs. Crouch and her children the real estate of the testator, and pay her the net rents which had accrued thereon since his death. The papers in this case, except the orders in the order book, were destroyed in the fire of April 3d, 1865.
    In September 1865, Ann Crouch, by her husband Wm. S. Crouch, as her next friend, and her children, filed their petition in the Circuit court of the city of Richmond, in which they referred to the will of Hector Davis, the suit that had been brought by James, the executor, the decree of the 25th of November 1864, and the destruction of the original papers in the cause, and stated that James had not settled an account of his administration upon the estate, and that he had failed and refused to deliver the real estate to the petition, or to 'x'pay her the rents; but had retained the same in his possession, and had collected the rents thereof. They therefore prayed that said James might be attached for his contempt, and committed until he complied with the decree of the, 25th of November 1864. And that he might be compelled to account for and pay over to the petitioner the residue of the estate of said Davis, which remained after satisfying the specific legacies.
    Upon the filing of this petition, which was verified by the oath of Wm. S. Crouch, on the motion of the petitioner the court made an order in the cause, that James be attached for his contempt failing to comply with the decree of the 25th of November 1864, unless he showed sufficient cause to the contrary on a day named.
    To this rule James filed his answer. He said that he made no objection to the decree of the 25th of November 1864, because at that time he had reason to believe, and did believe, that the other property of the estate would be amply sufficient to pay the debts and special legacies bequeathed by the ' will of his testator, Hector Davis; and he was therefore willing that the real estate included in the “balance” which was left to Ann Crouch and her children, should be delivered to them.
    But since the date of that decree a great change had occurred in the condition and finances of the country, and especially in the property of said Davis’ estate. The property embraced in the inventory of the estate was $91,020; and of this amount $67,980 consisted of bank stocks, all of which were now worthless; $2,700 in bonds of the Confederate States of America, and $460 in other stocks, both equally worthless, and $14,550 in slaves, all of whom, but those that he had sold, had become free by the results of the war. In fact, of all the estate in the said inventory and appraisement mentioned, there remained only $3,000 Virginia State bonds appraised at *$3,900, $1,000 bond of the city of Richmond appraised at par, and household and kitchen furniture appraised at $430. It was not in his power to dispose of these stocks and other asset's, and pay off the special legacies, because he could only have sold for Confederate currency, which the legatees were unwilling to receive ; and the proceeds of sale would therefore have remained in his hands, in that currency, and have become as worthless as the property left by the testator. He was therefore advised not to disturb the property in question, but to hold it in the condition he received it, until he should be otherwise directed, or some change of circumstances might enable him to settle with the legatees.
    He further says that the debts of his testator amount to between five and ten thousand dollars, which he had been unable to settle, because the creditors would not receive Confederate money, and that he had been informed of one bond of $17,000 given by H. N. Jones, who resides in Texas, and as to whose solvency he knows nothing, in which his- testator was security for said Jones.
    He further states that under an order in the cause, made on the third of December 1864, he placed his accounts in the hands of Wm. E. Watson, as special commissioner, for settlement, and that they remained in the hands of said Watson until his death; and respondent had not been able as yet to get possession of them; though he expects to do so in a few days.
    In declining to deliver the real estate he intended no disrespect to the court; but acted under the advice of counsel, and with no other view or purpose than that of discharging his duty as executor, and of protecting the interests of parties entitled under the will of the testator, and with the purpose of being governed by the order *of the court when the facts that had occurred should be properly made known to it.
    Upon the coming in of the answer of James, the court set aside the order of the 25th of November 1864, and made a decree directing one of the commissioners of the court to settle the executorial account of said James, and that he take an account of all assets belonging to the estate, and of all claims due by the same.
    In November 1865 James filed his bill in the cause, in which he refers to the former bill filed by him, and the proceedings which had been had in the case, and the destruction of the papers. He states the loss of the property, as given in his answer to the rule. As to the debts due to his testator he is unable to form any conjecture of their amount or what will be realized from them. They consist in many cases of unsettled accounts and of debts contracted in Confederate money; and most of the debtors reside out of Virginia in the southern and southwestern states. With all his efforts he has not been able to collect one dollar of these debts since the fall of Richmond. He is equally in the dark as to the debts due by his testator. When he filed his answer to the rule he supposed they would amount to between five and ten thousand dollars; he has since heard of other claims against the estate, which are unsettled, and. he does not know their amount. The special legacies amount to $40,000, and the value of the personal property in his hands is about $1,750.
    He further says that "he had received from dividends of stocks, rents of real estate, sale of negroes and some collections of debts, some thirty-odd thousand dollars which he invested, in conformity to the order of the court, in bonds of the Confederate States, which he holds. They are of course worthless. He is advised the special legacies are chargeable upon the real estate, *and must be paid before “whatever balance the testator may be worth” can be ascertained, and given to Mrs. Crouch and her children. He submits, therefore, that the real estate and its rents should not be turned over to Mrs. Crouch and her children, until it is ascertained that said real estate is the ‘ ‘balance of what the testator is worth,” after paying debts and special legacies; but that it should be committed to a receiver. He could not pay the debts and legacies, because the parties would not receive the money; and since the evacuation of Richmond, not being able to pay the legacies, he thought it but just that he should apply some of the rents of the real estate to the support of the infant legatees, the three nieces of the testator, and the children of Ann. And, making Wm. S. Crouch and Ann Crouch and her children parties defendants, he prays that the order of the 25th of November 1864 may be suspended ; that the court may take upon itself the supervision and direction of the administration of the estate; make the proper orders, direct the proper accounts; and for general relief.
    Ann Crouch and her children answered the bill. They insist that by the will of Hector Davis they are entitled to his real estate without liability for his debts; because he has not charged his real estate with either debts or legacies; and it is manifest he supposed that his estate was ample to pay his debts and legacies and leave a balance for the respondents. They insist that the executor has been guilty of gross mal-administration of ■ the estate, for which he and his sureties are responsible: First, that the pecuniary legacies were payable in the currency of Virginia at the death of the testator, and the executor should have paid them. Second: He was directed by the will to invest $20,000 in State stocks, and it was his duty to do so, and he is liable to all the *loss resulting from his failure to do it; and there was no decree of the court forbidding it. Third: That as to his own legacy, the investment in Confederate bonds is to be considered his own act, like the act of any other individual disposing of his own property ; and he is responsible for the loss of it. Fourth: That as to the slaves sold, they were bequeathed to the respondents, and were illegally sold by the executor; and he must account for their value. Fifth: Because he failed to obtain from the proper court directions how the legacies should be paid. And lastly: They insisted they were entitled to the possession of the real estate, and no receiver was necessary, or could leg-ally be appointed by the court.
    Commissioner Thomas J. Evans returned his report in March 1868. He presented several statements. Statement A was the account of the executor from the commencement of his administration down to April 3d, 1865, showing a balance in the hands of the executor in Confederate currency, of $13,823 12 of principal, and $312 50 of interest. Statement B. was an account of the administration from the 3d of April 1865 down to February 1868, showing a balance in the hands of the executor in gold or United States currency, of $13,484 72 of principal, and $703 82 of interest. The balance of the first account was not brought into the second. C and D were special statements, made at the instance of counsel, and need not be further noticed. Statement E was an account of assets belonging to the estate of Hector Davis. Of these assets $48,548 20 consisted of debts, many of which are reported as worthless; a number of them as unknown; a large number as doubtful; $32,126 28 of which are charges for small sums, being balances of accounts on his books; a few were marked probably good, and others were marked good. The other personal assets were reported at $1,524 00, and the real estate in *Virginia at $15,435 00. Statement F. is an account of claims against the estate of Davis to the amount of $28,240 38 in good money. Statement G. is an account of money paid to Ann, the freed woman, for the support of herself and her children since the war, $1,474 50. These 'payments are credited to the executor in statement B.
    The counsel for Mrs. Crouch and her children filed nineteen exceptions to the report; but as most of them referred to the sufficiency of the evidence, or were sustained by the court below, these will not be noticed.
    The 1st exception is to a credit in statement A for $1,000, money put into the hands of an agent sent to Arkansas by the executor, to see after and guard the interest of the estate of the testator in land owned by him in that State; there being no person there to attend to it, and no person on the land but slaves. The ground of the exception was, that the executor in Virginia had no control over the estate in Arkansas, and therefore had no right to expend money for it.
    The 6th and 9th exceptions are to the investments made by the executor in Confederate States bonds. As to this investment to the extent of $20,000, if allowed at all it should be charged as the bequest to Ann and her children. As to this bequest the will directed it to be invested in State bonds, and there was therefore no necessity to apply to the court for authority to invest it, and the decree does not require him to do it. As to the excess over $20,000, the executor should have paid the debts — Confederate debts — with it, and especially a debt claimed by himself.
    It appears that on the 20th of February 1864, on the petition of James, the executor of Davis, the Circuit court of the city of Richmond gave him leave to invest the cash on hand belonging to the estate of his testator, *in interest bearing bonds or certificates of the Confederate States or of the State of Virginia or any other sufficient bonds or securities in said State, which were to be payable to the executor, and not transferable except, &c. And that the executor so invested the amount credited to him in the statement A.
    The 10th exception is to the amount of $5,760 13 reported as a specie debt due to the executor. Hector Davis was a dealer in slaves; and he also sold slaves on commission. In this last business he employed James, giving him one-fourth of the net profit of commissions. An account with James was kept on the books of Davis. This account commenced before the war, and was continued until the death of Davis. On the 31st of December 1862 the credit to James on this account was $9,593 87 in Confederate currency, which was converted into good money at $5,760 18; and this with interest from the 31st December 1862 was reported by the commissioner as a debt due to James from the estate. It was insisted by the exceptor that this was a Confederate debt, and should have been paid by the executor out of the Confederate currency in his hands. The report having been referred back to the commissioner, he reversed his decision, and disallowed the debt; and then the executor excepted to the report disallowing it.
    The 12th exceptionis to a debt of $5,269.24 with interest from the 1st of January 1863, subject to a credit of $800 paid April 1st, 1866, due from Davis to Jennie, Sallie and Bettie Davis, as their guardian. He qualified in the County court of Goochland some time before 1855 ; and his account was settled by commissioner Fleming in October 1863, showing the amount due his wards : the whole having been received by him before the 27th January 1862. The debt was excepted to on the ground that the legacy to them of $15,000 was *a satisfaction of the debt; and because the report of Fleming was made after the death of Davis, and when his estate was unrepresented. And the commissioner states that there were a number of charges in the account kept by Davis which were probably correct; but which he was compelled to disallow for want of proof.
    The 15th exception insists that the executor shall be charged with every debt reported by him “good,” and every debt reported “doubtful,” unless he obtained judgments against the debtors. A witness proved that a number of these debtors lived in Virginia ; but he said that there had been great difficulty in collecting debts since the war; nobody has paid who could help it.
    The cause came on to be heard on the 22d day of July 1870, when the court overruled all the exceptions of Ann Crouch and her children, except the 10th, 12th, 13th, 14th and 18th; and confirming the report in all other respects, recommitted it to the commissioner to examine and report upon the 12th and 14th exceptions. And Ann Crouch and her children applied to this court for an appeal from this decree; which was allowed.
    Lyons & Stern, for the appellants.
    Before proceeding to notice the very well put and learned argument of the counsel for the appellees, we will proceed to state the principles upon which, in our opinion, the cause turns, and upon which it should be decided, as follows:
    I.The law declares that the first duty of an executor, after the payment of funeral expenses, is to collect and then to pay the debts of the testator. 2 Williams on Lx’ors, 890 et seq. ; 1 Lomax on EJx’ors, 609; 2 id. 475.
    II.When the testator b3^ his will directs the manner *of investment, that is, the security in which investments shall be made, the executor is bound to follow the will; and if he does not, is guilty of a devastavit, for which he and his securities are responsible out of their personal or private estate. 2 Williams on Hx’ors, title Devastavit, 1628-9, 36; ibid, p. 1642-3, 1667 ; 2 Lomax on Fx’ors, 475, 82, 83; Garrett et ais. v. Carr, 3 Leigh, 407, 414; Carter’s Fx’or v. Cutting, 5 Munf. 223; Southall’s Adm’r v. Taylor’s Adm’r, 14 Gratt. 269.
    It was the duty, therefore, of the executor to have paid all the debts which were payable in Confederate money; or if the parties refused to receive payment, to bring evidence of the fact, so that they might be dealt with as creditors who had been tendered payment and refused, and thereby lost their right to'recover. There certainly was no conceivable excuse for seeking investment of the assets, while this plain dutjr was unperformed, and especially the executor’s own debt, unpaid; and there could be no “embarrassing circumstances” to excuse him for not paying the debt, or to render his duty difficult or uncertain; his path was plain and simple: it was to pay the debts and invest the legacy as the will directed. The will directed that $20,000 bequeathed to Ann Davis should be invested in State stock. There was no embarrassment or difficulty here ; the duty was clear, the path plain, and there were no 1 ‘ embarrassing circumstances. ’ ’
    III.The debt due by the testator to the executor on account of the partnership, even if not paid by the legacy to him, was undoubtedly payable in Confederate currency — the currency of which the partnership assets consisted — and none other. James was a partner, and it is impossible for men to divide profits without being liable for losses, and thus partners; and, being partners, it follows:
    *1. All the partners have a community of interest, joint and inseparable, in all the profits of the concern. Story on Partnership, ch. 3, § 15-20 et seq. Each partner must share profits and losses according to his interest. $ 21.
    2. Partnership property may be realty, personalty, funds or money. Story on Partnership, 92, 3, 4, 8.
    3. One partner cannot appropriate any portion to himsélf exclusive of the partnership. § 174.
    4. A partner cannot be a creditor of the firm, therefore, for profits, and can only be a creditor of 'his partner for excess of advances by him, or when the copartner has received all the assets, including his shares of the profits.
    5. A partner of the firm cannot prefer a claim while strangers, who are creditors of the firm, are unpaid. I 39 to 307 of Story.
    The foregoing principles establish necessarily and conclusively that James must take his share of the profits in the thing, whether money, funds or realty, in which the profit was made; or, if he claims gold, he must pay gold to Davis. His share of the profits is no debt against the firm, for that would be absurd, and no debt against Davis, for Davis is liable to him for profits no more than he is liable to Davis, and neither party guarantees profits. If the profits are made in bad paper, each partner must take his share in the bad paper, and then he may do with it what he pleases; and what he makes of it is his own; but his partner is not responsible for it; otherwise, if one partner is entitled to one-third, and the other entitled to two-thirds, the one entitled to two-thirds, would ruin him entitled to one-third; for, for every $100 guaranteed to him entitled to one-third, he must guarantee $200 to the one entitled to the two-thirds. Community of interest forbids this. Mr. James *had in his hands at all times a sufficient amount of money of the kind due to him to pay his debt and thousands of dollars of others; and by neglecting to do so, and making illegal and unwarranted investments, he has lost his debt, and is responsible for all the others of like nature which he could have forced the creditors to take; or show an attempt to do so and refusal, which will forever bar their claim. Debts have priority over legacies.
    V. As to the $1,000 paid Bowcock, the exception should have been sustained and the amount charged to the executor, for reasons there stated. The executor is silent as to the cause of sending Bowcock to Arkansas; does not show any benefit that the estate derived from it; exhibits no report from him, as according to the receipt he was to return; and this is enough to show that he was not the proper person to send, even if necessary to send any one, which is not shown; and, above all, the executor had no control over the property in another State. This is admittted by the counsel for James, who say he was “not accountable” for debts due from residents of other States. Is this the manner in which a man in his senses would have acted for himself? Did an executor ever before attempt to screen himself in such a way? Not to attempt to collect a cent in another State, because he was “not accountable” for such debts, but yet advanced money to a man to go to another distant State with no purpose in view, and no good accomplished by it. Mr. James should be charged with the amount thus furnished his friend for a pleasure trip, ' for such it must have been, as he has never come back, and made no report of any business done by him, as far as we know; nor has the executor furnished any statement or description of the property left by Davis out of Virginia, or, in fact, that he left any.
    *VI. It was the duty of the execu-6 have sold all the bank stocks, and all the fancy stocks of the estate, and all the Confederate bonds which came to his hands, and with the proceeds of them to have satisfied the legacies and such debts as were payable in Confederate money; and failing to do so, he is responsible for the loss of those stocks. To retain those stocks was equivalent to investing the assets of the estate in them; and while a man may invest his own money in such securities, an executor or administrator cannot, except under the penalty of being liable for the amount invested, if the stocks fail. This is the law even when the question is as to the investment of a surplus fund; but it applies with much more stringency in a case like this, when there were legacies, as well as debts, to the satisfaction of which those stocks, or the proceeds of them, should have been applied, among which were the debts and legacy due to the executor himself. It was the duty of the executor, therefore, to sell those stocks:
    1st. Because it was matter of notoriety, that if the Confederacy failed they would be utterly lost.
    2dly. Because the debts and legacies required it.
    3dly. Because the will directed $20,000 to be invested, not in bank stock or fancy stocks, but in the stock of the State of Virginia.
    4thly. Because the devisees of the real estate were entitled to have it exonerated from liability for debts and legacies.
    5thly. Because, if debts and legacies could not be paid with the proceeds of those stocks, it was the duty of the executor to sell them, and lend the proceeds out on real security. 2 Williams on Executors, p. 1629, note 1; Brazier & Clark, 5 Pick. R. 96; 2 Lomax on Ex’ors, p. 477.
    
      The court will see that the loss to the estate by the *failure of the executor to sell these stocks, was $69,440, at least $29,000 more than enough to have paid all the legacies.
    VII. It being, as already shown, the duty of the executor to collect the debts due to his testator, he is responsible; and must account for all that he does not show to have been bad, at least for all of the Virginia debts, and he does not show, as to a very large number of them, any excuse for the failure to collect them. On the contrary, in account “F, ” he puts down the doubtful at $27,534 21; probably good at $2,444 44; making twenty-nine thousand nine hundred and seventy-eight dollars and sixty-five cents; and among the debts marked doubtful, is one by R. M. Lee & Co., of 3,839 dollars and 70 cents, and another from JST. M. Lee alone, of $14,76012, when that same N. M. Lee was so good as to be offered by him as one of his securities on his execu-torial bond, and received by the court; and yet no attempt was made to recover either of those debts until the bankruptcy of Lee. Those two debts could not have been even doubtful, therefore, without imputing to the executor the purpose of practising a fraud upon the court by offering Lee as security upon a bond of 200,000 dollars. The executor is, therefore, responsible for that debt; and by this specimen the list of doubtful debts ma3r be judged; and the wisdom of the rule which makes the executor liable for them, vindicated.
    The total amount due by all debtors, marked doubtful, is $27,534 21, of which the fifty-seven “doubtful” residents of Virginia owe $23,357 45 in Federal money. It seems from this that the executor has not so prosecuted the Virginia debts as to know whether they are good or not, and has marked doubtful fifty-seven out of eighty-four.
    The worthless debtors in Virginia are only two in ^number, and their indebtedness $988 74, while the total amontó mat'feeá mrtiilésó is $10,082 34. How does the executor know so much about the non-residents unless he has brought suit? And he says he has not. The fact is, he reports positively as to non-residents; and as to the residents, who, in amount, are largely in the majority, he reports doubtful, yet alleges non-residence as a reason for not knowing the debtor’s responsibility, and declining to attempt collections because he is “not accountable” for debts due by non-residents.
    The Virginia debtors, in amount, are more than one-half, and yet he did not sue one of them.
    The. defence set up by the learned counsel for the executor, to excuse him from his liability for his failure to make an effort to recover debts, of which the worst he can say of them is that they are doubtful, which admits that they might by proper pursuit be recovered, a chance from which the estate was entirely cut off by the laches of the executor, is reliance upon the stay law, and assuming that it prohibited the executor from suing. The court will find, however, that the statute of March 29, 1862, which was in force when Davis died, did not prohibit suits, but only prohibited the issuing of executions, except in certain cases, and expressly authorized proceedings to recover interest upon debts. See pages 95-97 of Sessions Acts 1861-62. So that there was nothing to prevent the executor from recovering judgments, and thus obtaining liens, or from recovering annual interest. And there is not in the record, even at this date, one particle of proof showing that the doubtful debts are not still good, or were not good at the close of the war. The simple assertion of the executor upon that subject being no proof, as it is no proof of his allegation that he offered to pay debts and legacies *in Confederate money, and creditors and legatees declined to receive it.
    VIII. That Confederate debts were payable in Confederate money, has been so distinctly and fully settled by this court that there is no occasion tojdiscuss the question ; indeed, it does not admit of discussion ; but it is denied that the legacies were payable in Confederate money.
    The rule upon that subject is thus laid down by Williams, in his book on ISx’ors, Vol. 2, p. 1202: “Upon this subject the intention of the testator, as apparent upon the construction of the will, is to furnish the rule of decision. But where legacies are given generalljq it will be presumed that the testator intended that they should be paid in the money of the country in which he was domiciled and the will was made, without regard to the currency of the place where the legatees reside.” 16 Sim. R. 613; 10 Ves. R. 330 ; 2 Bro. C. C. 38; Free. Chan. 210; id. 226 ; 2 Lomax on Fx’ors, 264, (top,) 151 (marg.); 1 Roper on Legacies, ch. 14, l 2, 856.
    The rule thus expounded is as applicable to the present case as to any other. It is not to be presumed that it was the intention oi tile testator, who was a Southern man, resident in the South, and whose will by the settled rule of interpretation speaks from his death except as to land, that his legacies should be paid in any other than the currency of the country in which he was domiciled at the time of his death, and of which he was a native.
    That he did not intend that it should be paid in Federal money is as perfectly certain as anything of the kind can be, because there was no Federal money in Virginia, and no means of getting it; and to have gotten it, would have been treason by the statute.
    *It is equally certain that he did not intend them to be paid in spec;e, because there was not specie in the country to meet all the demands of circulation; and it was not more customary to pay either debts or legacies in specie in 1859, than it was in 1863, Bank notes having taken the place of specie in ’59, and Confederate treasury notes in ’63. In what currency, then, can it be presumed, with any show of reason, that the testator intended his legacies should be paid, if not in Federal money or in specie?
    What is there, then, to rebut the presumption which the law raises, so much in accordance with common sense and the inevitable necessity of the case, to wit: that the testator intended that the legacy should be paid in the currency of the country in which he was domiciled and always had been?
    To be able to presume that he did not intend it to be paid in that currency, it is absolutely necessary to indicate some other currency to which the evidence points, as the currency which was in the contemplation of the testator. Now, we ask again, what is that currency, it being shown that neither Federal money or specie could have been in the contemplation of the testator? And until that is done, we think we may rest perfectly content with the position which the authorities cited and the reason of the case justify us in assuming that the legacy was to be paid in the currency of the country in which the testator was domiciled at the day of his death, or not to be paid at all.
    IX. Both the legacy and the debt due to the executor were payable in Confederate money. That money was at home, in the hands of the creditor; and therefore, upon the plainest principle of common sense and, law, they are to be considered as paid; and to that extent any loss of funds by investment or otherwise is necessarily the loss of the executor. If that were not true, then this extraordinary *anomaly would occur, to wit: that when an executor, who is both creditor and legatee, squanders the assets of an estate, he may turn around and sue his own security for the legacy and the debt, upon the ground that he has committed a devastavit in not paying himself.
    XI. The bequest of $15,000 to Jennie, Sallie and Bettie Davis, ought to be considered as a satisfaction of the debt due to them; and if not, then, as that was a debt entitled to priority over all others, it was the duty of the executor to have sold all the slaves, bank stocks and other stocks, except those of the city of Richmond and the State of Virginia, and if necessary to have purchased with them so much good money as would have paid the debt due to the wards, and to have paid it; and for his failure to do so, the executor is personally liable for the loss of the money.
    XII. That the real estate is not liable for the legacies, if the personal estate was insufficient to pay them, nor for any simple ■contract debt.
    We will now proceed to notice the reply of the counsel for the appellee.
    In the first place, we do not perceive how any matter stated in the petition, .which was presented to this honorable court, to take up the case as privileged, can be introduced properly into an argument upon the merits of the cause- in this court; but if it may, we respectively submit that the record justifies the allegation that the executor has b'een guilty of great delay in the settlement of the estate of Hector Davis. For although be took charge of the estate on the 13th of March 1863, he has made no effective or even serious effort at a settlement of it, and has been the real cause of all the delay and the losses which have been sustained by his failure to do his duty, by bringing forward and insisting upon *the most unjust and unconscionable demands, and wasting the assets by illegal and injudicious investments. If the executor had done his duty promptly, as he might and ought to have done it, our clients would not have been involved in this nine years’ effort to bring him to a settlement. Nor is the executor at all relieved by the fact which is relied upon in the second paragraph, page 2, of the argument of our learned opponents, that the country was. at war, that Davis (like the executor, his partner,) was a buyer and seller and auctioneer of slaves, and had many dealings in the south and south-west, because none of these causes hindered or prevented the executor from properly disposing of the assets in Virginia. Nor is he aided by the voluntary allegation of his answer, (which is relied upon,) that the creditors and legatees of Hector Davis believed the estate was solvent; and, therefore, refused to accept payment in Confederate money:
    1. Because the allegation is voluntary and affirmative, and there is not one particle of -proof to sustain it.
    2. Because the legatees and Confederate creditors had no right to refuse such payment, if tendered to them; and if they did, it was the duty of the executor to file his bill in the court of chancery to compel them; and thus throw upon them the loss of the-money, if it should be lost. If such was the fact, it was the duty of the executor to prove it, and thus relieve the estate; a tender being equal to payment.
    Nor is the executor at all relieved or protected by the plea of the stay law; for the stay law did not prevent him from suing the debtors and recovering- judgment; which he wholly failed to do. See Sessions Acts 1861-2, p. 95.
    The 5th ground of relief relied upon, that the executor retained in his hands all the stocks and slave property *which came into his hands, instead of being a justification, is a plea of guilty, for the law is laid down in the most unmistakable terms in Hewin on Trusts and Trustees, pp. 297-8, in which it is said, quoting Sir Thomas Plumer in Tebbs v. Carpenter, 1 Mad. R. 290: ‘ ‘I am anxious not to discourage persons from acting as executors, by throwing difficulties in their way, and am willing to make every proper allowance; but I must not forget the established doctrine of this court. If persons accept the trust of executors, they must perform it; they must use due diligence, and not suffer infants to be injured by their negligence. If there be crassa negligentia, and a loss sustained by the estate, it falls upon the executors.” “An executor is not to allow the assets of the testator to remain outstanding- upon personal security, though the debt was a loan by the testator himself in what he considered an eligible investment. And it will not justify the executor, if he merely apply for payment through his at-tornev, but do not follow it up by instituting legal proceedings:” citing Eawson v. Coleman, 2 Bro. C. C. 156; Southall’s adm’r v. Taylor et als., 14 Gratt. 269.
    Certainly there could not be crassa negli-gentia in an executor or a trustee, if this was not: To hold bank stocks, railroad stocks, insurance stocks, and Confederate bonds and slaves, until they were lost, while he suffered debts and legacies, which might have been paid by the sale of them, to remain unpaid — a charge upon the estate —those assets constituting more than three-fourths of the whole value of the estate. To state such a case, is to make it as plain as any argument can make it.
    Under the next head, it is said that the Confederate money which the executor received could not be paid to creditors who were unwilling to receive it, and that it could not be paid to legatees, or invested for their benefit, until the debts were paid.
    *To this there are several answers, to wit:
    1st. That there is not a particle of proof that payment was ever tendered to any creditor, and refused by him.
    2dly. That all Confederate creditors were bound to accept it; and tender to them was equivalent to payment. And there appear to be only two debts of any magnitude which might not have been paid with Confederate money, to wit: the debt to Holla-day’s ex’or, and to the Davises, which will be noticed again.
    3dly. Payments might have been made to legatees, and refunding bonds taken; and there is no proof that any attempt was made thus to settle with the legatees.
    4thly. The will furnished to the executor the rule of investment by which he should have been and was conclusively bound, viz: the investment in Virginia State stock; and if he could not invest for legatees, as he says, he could for creditors. But this is a singular argument in a case in which the executor did invest, and claims protection by the investment. There is no question, therefore, of the power to invest. The question is as to the propriety of the investment. We say it was bad; the executor says it was good; and we will presently give the reasons and authorities to sustain our view.
    In answer to our position that the legacies are not chargeable upon the real estate, the counsel for the appellee cite numerous authorities, for the purpose of showing that the lands were chargeable with the legacies.
    Special comment upon them is unnecessary, because one or two principles, very well understood, which properly apply to this case, settle the whole question, which will be found in the ve^ familiar and favorite authority in Virginia, to wit: Eomax on Executors, vol. 2, top paging 163, marg. 84, l 8, top p. 170, marg. 90, ed. of 1857.
    *Eirst, it is laid down that money legacies are payable only out of the personal estate; and, secondly, that the real estate will not be charged with the payment of legacies, unless that intention is expressly declared or clearly to be inferred from the language and dispositions of the will; and that a simple bequest does not have that effect. Eor this the learned compiler refers to the case of Eupton v. Eupton, 2 Johns. Ch. R. 614; the decision in which, he says, coincides with the more recent decisions and the present doctrines in England ; and he refers to many authorities.
    In Lupton v. Lupton, it was decided that a residuary devise of “all the rest of his real and personal estate not before devised is not sufficient to charge the real estate with pecuniary legacies.” Now, in this case the language of the testator is, “whatever balance I may be worth I want given to my sister, A.nn Crouch, and her children.” This is manifestly a residuary bequest, and nothing more, in the language of a man inops consilii, not using the most accurate expressions, to be sure, but leaving a large estate, out of which he gave a few legacies, not amounting to the half of it, nor indeed the third of it. He never had it in contemplation to charge the real estate, but intended to give the whole residuum to his sister, Ann Crouch, and her children.
    In respect to the legacies to the testator’s wards, we insist that the legacy to them is a satisfaction of their debt.
    “It is an established rule, that a legacy given by a debtor to his creditor, which is equal or greater than the debt, shall be presumed to be intended as a satisfaction of the debt, debitor non praesumitur donare.” 2 Eomax on Executors, ed. 57, marg. page 95, $ 1, citing Brown v. Dawson, Prec. Chan. 240; Eowler v. Eowler, 3 P. Wms. 353; Richardson v. Greese, 3 Atk. R. 65, and other cases ; *and all the authorities are cited and commented upon in 2 Roper on Legacies, ch. 17, I E 2.
    This is the strongest language which can be used in the argument in behalf of the legatees claiming this bequest. If nothing can be found in the will, therefore, to rebut this presumption, there cannot be a shadow of a doubt about the law; and there is not in the will a word, not one, which is inconsistent with the presumption. The attempt of the counsel for Jennie, Sallie and Bettie Davis to find something in the will to rebut this presumption is about as far-fetched as any we ever heard of. They say, “the scheme of the will seems to have been to give all about $5,000 each.” He gave to Ann Davis and her children their freedom and $20,000; to Mrs. Crouch, his sister, and her children, the excess of his personal estate, about $51,000 valuation in Confederate money, and his choses in action about $48,500, and real estate $15,435 in gold or United States currency.
    Now we ask in all candor, does it not appear that these last were the true objects of his bounty, and their legacy largely in excess of the others?
    We admit the testator intended $5,000 each for James and the three Davises; let it be so, and let it be received in satisfaction of their debts.
    All of the circumstances which have been received against the general presumption and rule of law, are collected and authorities cited, to sustain them, in 12 Mass. 395, note.
    1. Where the legacy is less than the amount of the debt.
    2. Where, though equal to the debt, there is a difference in the duration or time of payment, making it less beneficial to the legatees. 3. Where the legacy and debt are of a different nature.
    *4. Where the provisions of the will are expressed to be given for a particular purpose.
    5. Where the debt is contracted subsequently to the making of the will.
    6. Where the legacy is contingent or uncertain.
    7. Where the debt is contingent.
    8. Where there is an express direction in the will for the payment of debts and legacies.
    9. And, perhaps, where the legatee is a servant of the testator, and the debt is for wages.
    It is only under the third and fifth of these exceptions to the general rule that the appellees claim.
    First, as to the 3d exception, that the legacy and debt are of a different nature. The cases cited upon this point show such a difference, as follows:
    “One gives a bond on his marriage, either within four months, to settle lands of 100 pounds per annum on his wife, or that his heirs, executors, &c., shall pay her 2,000 pounds within four months after his death; husband, after this, devises to his wife lands of 88 pounds per annum; this shall not be taken in part of the 100 pounds per annum, but only as a benevolence.” 2 P. Wms. 614.'
    Now, it is not necessary to say that this case does not touch the one before us; and yet the appellees rely upon such authorities.
    On page 3 of the note by Messrs. Guy and Gilliam, they say: ‘ ‘it was not a debt due from the testator, in its technical sense, to the wards.” If that be true, then they have no claim for a debt. If it was not a debt to his wards, what was it?
    The kind of difference which is meant by the decisions is this, for example: the testator owes a debt which is “charged upon the land in his possession, and not on the person of the testator.” 1 B. Monroe, 228.
    *See the general rule: Toller 336; 2 Fonblanque 330, and in the the cases cited by the appellees. |
    Secondly, as to the fifth exception. When Hector Davis died, his will went into effect; and whatever he owed the Davises he owed then, for he could contract no debts after-wards; and as the legacy largely exceeded the debt, it should be regarqed as in satisfaction of it. When he made his will, there was a balance due from him; it might have been more or less at his death.
    The report of commissioner Fleming answers all objections in respect to the debt not being known and ascertained by Davis, because the commissioner expressly reports that “Hector Davis kept an account of receipts and disbursements as guardian aforesaid,” “which disclosed not only perfect fairness towards his wards, but even liberality. ’ ’
    The case is, therefore, the ordinary and simple case of a testator devising much more than he owed to his wards, to whom he was indebted. The total of his indebtedness, if all the credits to which the commissioner thinks him entitled were allowed him, was less than $2,000 to each, and he bequeathed to each $5,000.
    Passing from this point we proceed to consider the other points of the case. First, as to the $20,000 directed by the testator to be invested in State stock.
    The chancellor, in his opinion, justifies the executor for his failure to invest the $20,000 in State stock, as directed by the will of his testator, because of the investment of that money in Confederate bonds under the authority of an order of court— because of the heavy premium he would have to pay for State stock — the uncertainty of its ultimate value, and the notice he had received from the receiver of the Confederate government that the government would claim the legacy as confiscated property.
    *We repeating here what has been already said as to the duty of an executor to invest according to the directions of the will of his testator, but taking that for granted which the effort to excuse it admits, we. will proceed to consider the reasons assigned in support of the excuse, and
    1st. As to the order of court.
    The statute to which reference has been heretofore made, Acts of ’62, ’63, p. 81, is the foundation of the order, and affords not the slightest justification for it. The act contemplates and provides for a wholly different case from this, viz: one in which the fiduciary is “unable to pay over to the cestuis que trust, or parties entitled thereto,” “moneys in his hands.”
    And it manifestly was not at all in the contemplation of the legislative mind, or within the scope of the act, to change any man’s will, where that will could be carried into execution; and intended to provide, and does provide, only for a case in which the fiduciary could not lawfully dispose of the money to which the beneficiary was entitled without an order of court. And it is simply to stultify the Legislature to suppose that with a knowledge of a will authorizing' an executor to invest in State stock, it would pass a law giving him leave to ask the court to give him leave to do the same thing.
    Here, on the contrary, there was no impediment ; and the executor could have invested without difficulty. The order, therefore, founded upon that statute, affords no excuse to the executor, because it did not apply to the case; but if it did, does it afford any justification to the executor?
    Manifestly not.
    The will said to the executor, invest in Virginia State stock. The court said, do that same thing, or invest in other securities as you please. Now, the court did not ^undertake to control the executor ; and did not, therefore, direct him, or command him to make any particular investment, but left him perfectly free to act as the will directed him to act; and his action in opposition to the will was purely voluntary; which leaves him exactty in the position in which he would have stood if there had been no order. The order, therefore, must be regarded as out of the question.
    2. As to the high price of the stock.
    This reason is wholly independent of the order, and would be good without any order, if good at all; and we submit, with all respect, is not good under any circumstances ; for if good in this case it would be equally good in every case in which the stock selected by the testator for an investment rose in value after his death; and that, we are sure, nobody will insist upon; for the rise in the price of the stock, instead of depreciating the stock, as an investment, only commends it, because it shows the stock was worth more than the currency; but in truth the order condemns this excuse, for the judge who made it with full knowledge, of course, of the price of the stock, which was a matter of notoriety, said to the executor, you may purchase it. We are only surprised the chancellor did not observe that when he made this excuse.
    3. As to the threat of confiscation.
    We do not perceive how that could affect the investment at all, as the threat was not to confiscate the State stock, but to confiscate the legacy, which was the only thing that could be confiscated, if any thing could; and that could be just as well confiscated under one form of investment as another: And if the investment had been made in State bonds, it would have been made in the name of the executor, and not of the devisee, exactly as it was made; and, therefore, would have been no more ^accessible to the confiscating officer than it was in the form in which it was made. But what business had the executor to change the investment directed by his testator, and authorized by the court, because of any threat by the confiscating officer, even if he could show, which he does not, and cannot, that by changing the investment he could elude the confiscating officer? But here again the order answers the excuse; for the executor informed the court, or he did not, of this threat; if he did, the court disregarded it, and said invest, notwithstanding the threat; if he did not, then the manifest threat had nothing to do with the investment, as it is very obvious it did not.
    Upon the whole, we submit that the order of court had not' the slightest influence upon the investment, and furnished no excuse for it, and leaves it as it is, a clear, unpardonable devastavit; and this conclusion is in truth avowed by the executor in his letter to Virginia Davis, of the 28th December 1866, in which, speaking of the direction of the will to make the investment in State stock, he says: “I saw the injustice of such an investment; and notwithstanding 1 was directed by the will to do so, I refused to make it, well knowing, if it was done, it would deprive you practically of what was intended to be left you by your father. In consequence of thus acting, some of the other legatees have brought suit against me, claiming the will ought to have been carried out, and the investment made;” thus avowing, not that he had obeyed an order of court, but disobeyed the direction of his testator.
    Lastly, as to the uncertainty of the ultimate value of State stock.
    It is difficult to treat this reason with that gravity which is consistent with our very cordial and sincere respect and esteem for the judge who gives it.
    *What was there to create doubt of the value of Virginia State stock? The reply is, the possible fall of the Confederacy ; and if for that reason State stock should be doubted, how could Confederate stock be regarded better than State stock? If we may be pardoned for the use of a metaphor in a law argument, the State stock was the shadow of Confederate stock; its position depending upon the location of the body which cast the shade. Is it not positively ludicrous to say, then, that the State stock was unsafe, and the Confederate stock safe, since the State stock was certainly safe if the Confederate stock did not become worthless; and, therefore, the Confederate stock must fail before the State stock? And yet the executor is justified in paying a large premium for Confederate stock in preference to State stock, because State stock bore a higher premium than Confederate stock.
    Begging that the court will regard all the points made upon the record, although they may not be repeated here, we most respectively submit this note, in conclusion, for the appellants.
    Johnston & Williams and Steger, for the executor.
    Guy & Gilliam, for the Misses Davis.
    
      
       Creditor-Legatee. — In Glover v. Patten. 17 Sup. Ct. Rep. 417, the court, citing among others the Principal case as authority, said, “The appellants rely * * upon the general proposition that, where a debtor bequeaths to his creditor a legacy equal to or greater than the amount of his debt, it shall be presumed, in the absence of a contrary intent inferable from the will, that the legacy was intended to be in satisfaction of the debt. Had Mrs. Patten, subsequent to the execution of the agreement of September, 1885, made special bequests to her daughters, or either of them,'of amounts equal to or greater than the amount of her indebtedness to them, the rule might, perhaps, be invoked as an answer to their claim; but the rule is in fact nothing more than a presumption, and may be rebutted by slight evidence that such was not the intention of the testator.” See also, 3 Min. Inst. (4th Ed.) pt. 1, 593.
    
    
      
      Legacies — Charge on Real Estate. — In Smith v. Mason, 89 Va. 715,17 S. E. Rep. 3, the following language of Judge Staples, in the principal case, is quoted and approved: “It is universally conceded that, as a general rule, the personal estate is the natural primary fund for the payment of legacies. Whether they are chargeable on the land, when the personal property proves deficient, is always a question of intention. When the charge is not created in express terms, it may be established by implication.”
      In Lee v. Lee, 88 Va. 807,14 S. E. Rep. 534, the court, citing the principal case, said: “As a general rule the personalty is not only the primary but the only fund for the payment of legacies. The testator, however, may charge the land, and this may be done either expressly or by implication; but in any case the intention to charge must be clear — so clear as to admit of no reasonable doubt. Hence, when the land is not charged and there is a deficiency of personalty, the legacies'abate to the extent of such deficiency.”
      In this latter case “it was held that the intention of the testator to charge the legacy on the personalty was deducible from the circumstances therein.” Smith v. Mason, 89 Va. 716,17 S. E. Rep. 3. See Wood v. Sampson, 25 Gratt. 848, also holding that “whether general pecuniary legacies are chargeable on real estate is always a question of intention," and laying down the rule that this intention is to be obtained from the facts and circumstances and not from parol evidence of declarations of intention of the testator.
    
    
      
       Executors — Choses in Action — Liability.—In Estill v. McClintic, 11 W. Va. 416, the court, citing the principal case as authority, said, “It is true as a general rule, that if an administrator reports debts as solvent or doubtful, it is his duty to produce proof of his exculpation from responsibility for them. He should show why such claims have not been collected.”
      But, in Wimbish v. Blanks, 76 Va. 368, the court, making reference to the principal case, said it was by no means certain that the rule as to liability of an executor for the collection of choses in action belonging to his testator laid down in the principal case extended to mere trustees for the collection and payment of debts like the case at bar. The court suggests that there is well defined distinction between the trust which devolves on executors and that with which trustees are invested.
    
   STAPLES, J.,

delivered the opinion of the court.

It is insisted by the counsel for the appellants, that the legacies bequeathed to Jennie, Sallie and Bettie Davis, should have been treated as a satisfaction of the debts due them by the testator, as guardian. In support of this proposition, the learned counsel relies upon the rule in equity, that where a debtor bequeaths a legacjr to his creditor, of equal or greater amount than the debt, and of the same character, and payable *after the debt becomes due, it is presumed that the legacy was intended to be in satisfaction of the debt. There is no doubt this rule still nominally exists; but the tendency of the more recent decisions is, to consider the bequest a bounty, and not the discharge of an obligation. And the courts now lay hold of any circumstances, however trifling, for the purpose of repelling the presumption that the legacy was intended as a satisfaction of the debt. 2 Roper on Legacies, 1742 ; 2 Redf. on Wills, g 52, 516.

So far as this record discloses, the only debt of any importance against the testator, at the time of the execution of the will, was the one due to his wards. After satisfying that debt, the testator was possessed of an ample estate to pay all the pecuniary •legacies, and also to make a reasonable provision for Mrs. Crouch and her children. There is no doubt that this was his purpose. Unmarried and intestate, he had no immediate family of his own to provide for. His nephew and nieces were very naturally the objects of his bounty and his affection. It is clear that the legacy bequeathed to R. D. James was not intended as a satisfaction of the debt due him; because that debt was contracted after the will was executed. This legacy is the same in amount with those given to the nieces respectively. Why should the testator make this difference between them? Why discriminate in this way, in favor of the nephew, and against the nieces? They were his wards; and it is reasonable to suppose his relations with them were more intimate, and his regard for them stronger than for either of his other relatives. The very first clause in the will contains the bequest in their favor; thus showing they were prominently in his mind when he determined to make his will. “Item first (he declares) : I give to my nieces Jennie, Sallie and Bettie Davis, the sum of fifteen thousand *dollars, to be equally divided between them.” This language, taken in connection with the other provisions of the will, and all the facts and circumstances of the case, plainly indicates, I think, that the testator intended a gift of five thousand dollars to eaoh of his nieces, without deduction or abatement. There was no error, therefore, in the decision of the .Chancery court on this point.

In the next place, it is insisted that the court erred in holding that the pecuniary legacies constitute a charge upon the real estate. It is universally conceded that as a general rule the personal estate is the natural primary fund for the payment of legacies. Whether they are chargeable on the land, when the personal property proves deficient, is always a question of intention. When the charge is not created in express terms, it may be established by implication. And in seeking for the expressed intention of the testator, his words are to receive that interpretation which a long series of decisions has attached to them; unless it is very certain they were used in a different sense. 1 Redfield on Wills, p. 433-435. Thus it has been held in numerous cases, that where pecuniary legacies alone are first given, and no part of the real estate is specifically devised, and there is a residuary clause, devising and bequeathing the residue of the real and personal estate, this 'operates to charge the entire property with the legacies. This rule of interpretation is founded upon the idea that the testator, in blending his real and personal estate into a common fund, plainly manifests his purpose to make no distinction between them. And inasmuch as the will contains no previous devise of any .part of the real estate, the residue in such case can only mean what remains after satisfying the previous gifts. This is the well established doctrine of both English and American *courts. Greeville v. Brown, 7 House of Lords Cases, 688; Lewis v. Darling, 16 How. U. S. R. 1, 10; Wilcox v. Wilcox, 13 Allen’s R. 252; Shulters v. Johnson, 38 Barb. R. 80.

The only case cited by the learned counsel for the appellants, as establishing a different rule, is Lupton v. Lupton, 2 John. Ch. R. 614. That case is, however, easily distinguished from the one now under consideration; and is not in conflict with the authorities mentioned. Chancellor Kent was of opinion that the residuary clause in that case was nothing more than the usual formula in wills, indicating merely that the testator did not intend to die intestate as to any portion of his property, but to dispose of the whole of it. In the present case it is apparent that the residuary clause was not designed simply to prevent a partial intestacy, from a failure to recollect all the testator’s property; but was intended as a substantial and beneficial bequest in favor of the residuary legatees:

In Lupton v. Lupton the will contained several antecedent specific devises of real estate, to which the residuary clause might be referred; thus giving it its appropriate construction. In this case the testator makes no specific devise of an3r part of his real estate; and he does not even refer to it in his will. Nor does he adopt the ordinary formula to which Chancellor Kent refers. By a single clause he blends his real and personal property into one mass; and declares, “whatever balance I may be worth, I want given to my sister Ann Crouch and her children.” What did he mean by these words? Did he refer to the balance of his personal estate simply? If his purpose was to devote his personal property only to the payment of the pecuniary legacies, and to give all his real estate to Mrs. Crouch and her children, nothing would have been easier than to have so provided in *plain and explicit language. The testator having made no specific devise of any part of his real estate, and having- blended his entire estate into one residue, it seems to me the inference is irresistible that his intention was to give only the residue remaining after the previous dispositions of his will are satisfied.

It is also insisted that the executor ought to have paid the debts and legacies with the Confederate currency in his possession. If it appeared that the creditors of the estate were willing to receive payment in that currency, there might be some reason in holding the executor responsible for his failure so to employ the funds in his hands. But, nothing of the kind is proved or asserted. As the Confederate notes were then greatly depreciated, and the debts contracted before the war, the fair presumption is, I think, the creditors were not willing to accept those notes in payment of their debts.

The same may be said with respect to the legatees. The executor cannot be justly chargeable with a devastavit, in failing to pay them, even if there were no debts against the estate; unless it appears that the legatees were willing to receive the Confederate notes, if they had been tendered. The ground is taken, however, that the legatees were payable in the currency in circulation at the death of the testator in 1863. It is true that a will of personal estate generally operates upon the property possessed by the testator at the time of his death, whenever acquired; but in order to ascertain his meaning and intention, we look to the date of the will. 2 Lomax on EJx’ors, p. 8. The cases cited by counsel only show that where legacies are given generally, it will be presumed that the testator intended they should be paid in the money of the country in which he was domiciled and the will was made. And this rule will be observed, though the testator may change his residence and die in ^another country. This but illustrates the principle of ' looking, not to the death of the testator, but to the time and place of executing the will, in order to ascertain the objects of his bounty, and the kind or value of the currency in which they are to be paid. This is the rule fairly deducible from all the cases. Holmes v. Holmes, 1 Russ, and Myl. R. 660 ; 2 Wm’s Ex’ors, 1232. This principle is not affected by the act of March 3d, 1866, for the adjustment of Confederate liabilities. That act, by its very terms, only embraces wills executed between the first day of January 1862 and the 17th of April 1865. It does not confer the slightest authority upon the courts to apply the scale of depreciation to .legacies given long anterior to the existence of the Confederate currency.

It is next made a ground of complaint, that the executor did not use the Confederate notes in the purchase of gold, and with that pay the debts and legacies. In the light of subsequent events, such a course would have been wise and judicious. Judged by circumstances then existing, it would have been regarded as an act of the greatest folly and rashness in a fiduciary. If, as was the prevailing opinion, the southern cause had been successful, such an act would have been regarded as an unjustifiable sacrifice of the assets and securities of the estate, and treated as a devastavit on the part of the executor. He was not bound to incur any such risk. The executor was required to act as a judicious man, looking alone to his worldly interests, would have acted under the circumstances; but he was not required to go beyond that.

Another ground of complaint urged by appellants, was the failure of the executor to invest the twenty thousand dollar legacy given to Ann and her children, in State stocks or bonds; as directed by the will. It is *to be borne in mind, that the condition of the country and of all securities, public and private, was altogether different in 1863 when the testator died, from what it was in 1859, when the will was executed. The executor being greatly embarrassed by this altered condition of affairs and1 other difficulties attending the administration of the assets, filed his bill in the Circuit court of Richmond, in order that the trusts of the will might be executed under the supervision of a court of chancery. In the progress of the cause, the court, upon the petition of the executor, entered an order or orders, authorizing him to invest the currency in his hands in Confederate or State securities. The investment was thereupon made in Confederate bonds. It is true that Ann and her children were alien enemies, and could not be served with process or brought before the court. Nevertheless, the executor had the right to apply to the court for its assistance; and the court had the right to make just such an order as was made. No existing investments were thereby altered, no rights were violated. Confederate currency received properly, in a due course of administration, was simply converted into Confederate bonds, until it could be applied to the claims of creditors or legatees. The estate, exclusive of this fund, and exclusive of the realty, was greatly more than sufficient to pay all the legacies. But for the loss of this property, the investment could now be made according to the directions of the will. And the burden -would fall upon the residuary legatees, who were parties to the suit; must have been apprised of what was done, but made no objections to any of the orders entered in the cause. But let it be conceded that these orders were not binding upon the non-resident parties. The act of the executor, in bringing the suit and invoking the aid of the court, evinces, I think, entire good faith, due diligence, *and a laudable desire to protect the rights of creditors and legatees. And I do not see how it is possible, consistently with the rulings of this court, to throw upon him the loss of this fund. Eliot v. Carter, 9 Gratt. 541; Myers v. Zetelle, 21 Gratt. 733.

It was argued, however, that as the court authorized an investment in State bonds, and the testator so directed, those securities should have been selected by the executor. The executor states that he made no investment in the name of Ann and her children, because _ they were alien enemies; and he was notified that the Confederate authorities would take step to sequestrate their legacies. He did not deem it advisable to purchase State bonds, because they were greatly appreciated, as compared with the currency. He, therefore, concluded to make what he considered as merely temporary investments in Confederate bonds. They were regarded by many of the most sagacious business men of the country as equally safe with any other securities. The executor honestly exercised the discretion vested in him by the. court in purchasing them.

If we are now to say that he is liable, because he did not purchase State bonds rather than Confederate, we must declare that he had no discretion in the premises. We must hold, that whatever may have been the condition or the resources of the estate, or the circumstances surrounding the executor, he could not make, and the court could not authorize, any disposition of the funds, until this legacy was secured. At that time there were large claims against the estate, which could not be paid. Until they were settled, however, the executor was under no obligation to pay legacies or make investments for legatees. He had the right, under the sanction of the court, to retain the funds under his control until the liabilities of the estate and the rights of all parties were *settled and adjusted. If loss has thereby ensued, it is not fairly attributable to any breach of duty on the part of the executor; and the Chancery court very properly so decided.

The appellant’s exceptions to the commissioner’s report, from No. 1 to No. 8 inclusive, also Nos. 11, 16, 17 and 19, were properly overruled. In regard to the questions arising under the fifteenth exception, there is more difficulty. That exception is based upon the failure of the executor to collect debts due the estate, or to institute any proceeding to secure the same. A list of these debts is reported by the commissioner, amounting to forty-eight thousand five hundred and eighty-five dollars and twenty cents. One of the witnesses examined expresses the opinion that but little could have been realized from these claims, and that many of them were not recognized by the testator as existing debts. It seems, however, that a large number of the debtors reside now, or did reside, in Virginia; and a majority of these is reported bjr the commissioner as good, or in doubtful circumstances. And this is all the information we have upon the subject. The Judge of the Chancery court, in the course of his opinion, said: “That as to the claims in Virginia uncollected, no proof has been brought before me, showing that any of these claims have been lost by the negligence or improper conduct of the executor. ’ ’ The learned Judge is not entirely correct in his statement of the principle. The executor was bound to adduce the .proof in his exculpation. When assets are traced to his hands, it devolves upon him to show why they have not been collected; and not upon the legatees or distributees to establish misconduct or negligence. Tebbs v. Carpenter, 1 Mad. R. 290; Lawson v. Copeland, 2 Bro. Ch. Cas. 130.

It is not intended, however, now to decide any of the ^questions arising under this exception. There ought to be further inquiry as to the claims upon resident debtors, whether any of the debts reported as doubtful or worthless are now available, and whether the executor, by instituting suits at any time since the death of the testator, ought to have collected any of them, or secured satisfactory liens upon real estate.

Appellants’ exception number 10, in relation to the claim of R. D. James, the executor, against the estate, amounting to $5,760 13, was properly sustained, for the reasons given by the Judge of'the Chancery court. No error was, therefore, committed in that particular, to the prejudice of the appellee.

The decree affirmed, except, as to the debts in Virginia uncollected by the executor.  