
    *Lewis v. Henry’s Ex’ors & als.
    March Term, 1877,
    Richmond.
    Absent, Anderson, J.
    
    I. Testator by his will gives land and stock upon it to his son H. By the 3d clause of his will, he gives to his five daughters, by name, the balance of his land, his daughter M to account to the rest of his daughters, in the sum of $3,500, and his daughter T $5,200, these being the amounts paid for homes for them. By the 4th clause he gives to his son H and his five daughters the balance of his personal property to be equally divided among them — Heed:
    1. Advancements — Real Estate. — The advancements to M and T are only to be brought into the division of the real estate.
    2. Same — -Personal Estate. — The personal estate embraced in the 4th clause is to be equally divided among the son H and the five daughters.
    II. Testator, some months after making his will, makes a codicil to his will in which ne says: If my estate should have to pay the debt, or any part thereof in the lawsuit brought by M’s adm’r against Dr. B’s estate, I hereby will and direct that my daughter M is to forfeit all interest in my estate, and is to inherit nothing under my will. He was the surety of B, who had been the husband of M, and was not sued, but settled the debt and took an assignment of it. After his death in a suit by his executors, nis daughter brings the money into court, and tenders it — Heed:
    1. Wills — Condition Subsequent. — The condition created by tne codicil is a condition subsequent, ana the estate not having paid the debt, but M tendering the money to pay it, her interest in her father’s estate is not forfeited.
    III. Executors — Trustees-—Powers.—-As to the portion of the property given to his daughter S, testator directs that his executors shall hold it in trust, and manage and deal '■"out the proceeds thereof for licr and family as their necessities may require — Held:
    The executors, as trustees of S, may use the proceeds arising from sales and collections, as well as from rents and profits, as in their discretion the necessities of said S and family may require. They may give her possession of the property, or they may purchase for her such property as they may deem necessary for the use of herself and family, or to enable her to cultivate or improve the real estate devised to her; and to erect suitable buildings upon the real • estate, so as to enable her to reside upon and cultivate it. And they will not be responsible for any personal properly winch in their discretion they may put in the possession of said S, and which may be wasted or lost while in her possession. And they may sell and use or reinvest as in their judgment the necessities of said S and her family may require.
    In October 1872 Edward W. Henry, Sen., of the county of Charlotte, departed this life, having njade his will and a codicil thereto, which was duly admitted to probate in the county court of Charlotte, and Edmund W. .Henry, Jr. and James T. Buster qualified as executors thereof.
    By the second clause- of his will the testator gave to his' son, Edward W. Henry, a tract of land which is set out by metes and bounds, for his life; and at his death it was to be divided among his children by his then present wife. Testator gave also to his said son all testator’s stock of horses, mules, hogs and sheep, all his cattle, except two cows and calves, which he gave to his daughter, C. Catlett, and the furniture in the room occupied by the said Edward, &c.
    The third and fourth clauses are as follows:
    3d. I give and bequeath to my daughters, M. R. Lewis, S-. J. Armistead, Lucy D. Leighton, Celine Catlett and A. B. Smith, and their heirs, the balance of my "landed property, to be equally divided betVeen , them; but my daughter Lewis is to be 194 accountable to *the rest of my daughters in the sum of $3,500, and my daughter Leighton, $5,120, these being the amounts paid for homes for them.
    4th. I will and direct that all my household and kitchen furniture, not before willéd, silverware, all money in hand due me, bonds, accounts and everything which may be due me from any source, crops, and any personal property which may herein be omitted, shall be equally divided between my son E. W. Henry and my five above named daughters.
    By the fifth clause of his will, as to that portion of his property willed to his daughter, A. B. Smith, the testator directed that his executors shall hold it in trust, and manage and deal out the proceeds thereof, for her and her family, as their necessities may require.
    This will was written by the testator" himself, and bears date on the 21st of April 1871. The codicil bears date on the 15th of November 1871, and is as follows: If my estate should have to pay the debt, or any part thereof, in the lawsuit brought by Miller’s administrator against Dr. Wm. B. Lewis’ estate, I hereby will and direct, that my daughter M. R. Lewis is to forfeit all interest in my estate, and is to inherit nothing under this my will.
    The bond referred to in the above codicil bears date the 16th of November 1858. It was executed by Lewis, with E. W. Henry as his surety, to George M. Y. Miller, for the sum -of one hundred and ninety-five dollars. Dr. Lewis having died, and as it would seem without sufficient assets to pay his debts, an action on his bond was brought by Miller’s administrator against Mrs. Lewis as executrix of Dr. Lewis, and a judgment was recovered against her prior to the 15th of April 1872. No action was instituted upon the *bond against Mr. Henry; but after the judgment was rendered against Mrs. Lewis, he settled with the counsel of the plaintiff, by giving him a receipt for the amount upon a claim which he had upon an estate in the hands of the counsel of Miller, as administrator, and the bond was assigned by Miller’s administrator to E. W. Henry, Sr., without recourse.
    In January 1873 the executors of E. W. Henry, Sr., and E. W. Henry, Jr., in his own right, instituted a suit in equity in the circuit court of Charlotte county, against M. R. Lewis and the other daughters of E. W. Henry, Sr., and the husbands of those who were married; in which they set out the foregoing facts and asked the advice and direction of the court in the administration of their testator’s estate. The points on which they asked for instruction were: 1st. Whether upon the facts of the case Mrs. Lewis had, under the codicil, forfeited her share of the testator’s estate. 2d. Whether the charges made against Mrs. Lewis and Mrs. Leighton in the third clause of the will were to be considered as affecting the division of the personalty directed in the fourth clause. 3d. Whether, under the powers vested in the executors in the fifth clause of the will, they were authorized to use the principal of the fund, or only the interest and profits thereof, for the support and maintenance of Mrs. A. B. Smith and family. And if she should wish to reside on the land devised to her, to what extent might the money coming to her be used in improving by building, &c., on said land, or any other land selected for her home.
    Mrs. Lewis alone answered the bill. She insisted, that the case had not occurred on which the forfeiture of her interest in her father’s estate was to occur, he never having been sued for the debt; and if it was *paid, was paid by him in his lifetime, though in fact he had paid no money. But if the codicil created a forfeiture, it was upon a condition subsequent; and the facts must come precisely up to the terms of the condition, which was not the case here, and moreover, it lay in compensation; and she brought into court the amount of the debt, and tendered it in satisfaction thereof.
    On the question of the charges made in the third clause of the will, she insisted they were to be confined to the real estate disposed of in that clause.
    The cause came on to be heard on the 2d of April 187.3, when the court held, that the event had occurred upon which the testator, by the codicil to his will, provided for the forfeiture of Mrs. Lewis’ interest in his estate, and she had no interest therein beyond the advancements to her by the testator in his lifetime; and that the portion which had been willed to her passed to the other children mentioned in the third and fourth clauses of the will, and there was no intestancy thereof. And the court further held, that Mrs. Leighton could take no further interest in the estate, real or personal, until the other daughters should be made equal to her by receiving the like sum of $5,120.
    And the court held, that by the 5th clause of said will the said testator did not intend to change the bequest to his daughter, Ada B. Smith, but only to place it under the control and management of his executors as trustees for her sole use and benefit; and that, in exercising the said trust, they are to deal out the proceeds arising as well from sales and collections as from the rents and profits, according as in their discretion the necessities of said Ada B. Smith and family may require; and that the said trustees are at liberty to give the said Ada B. Smith the possession and use of any *and all of the said property, if in their discretion the necessities of herself and family require it, or they may purchase for her such property as they may deem necessary and proper for the use of herself and family, or to enable her to cultivate or improve the real estate devised to her; and they are at liberty, in the exercise of the same discretion. to erect suitable buildings upon the said real estate, so that she may be enabled to reside thereon and to cultivate the same. And any personal property which, in the exercise of their discretion, they may place in the possession of the said Ada B. Smith, and which may be used, wasted or lost while in her possession, shall not be chargeable to them, the said trustees, by reason thereof, but their responsibility therefor shall cease whenever, in the exercise of their descretion, they have so placed .her in the possession thereof. And the said trustees, if in their discretion they deem it best, are at liberty to sell any and all of the trust subject, and use or reinvest the proceeds, or any part thereof, as in their judgment the necessities of the said Ada B. Smith and family may require.
    From this decree Mrs. Lewis applied to this court for an appeal; which was allowed.
    
      Ould & Carrington, for the appellant.
    
      W. W. Henry and Wood Bouldin, Jr., for the appellees.
    
      
      Jddge Anderson was prevented by severe illness from sitting in most of the causes decided during this term of the court.
      See generally, Watkins v. Young, 31 Gratt. 84, and note on advancements.
    
   Christian, J.,

delivered the opinion of the court.

Two questions arise in this case for our consideration. Both depend upon the true construction to be given to the will of the testator, Edward W. Henry.

*They arise under the third and fourth clauses of said will, and under the codicil executed several months after the date of the will.

In the first clause of his will the testator provides for the payment of his debts. In the second clause he gives to his son, Ed. W. Henry, a tract of land set out by metes and bounds and certain personal property.

Then follow the third and fourth clauses in these words:

“3d. I give and bequeath to my daughters, M. R. Lewis, S. J. Armistead, Lucy D. Leighton, Celine Catlett and A. B. ¡Smith, and their heirs, the balance of my landed property, to be equally divided between them; but my daughter Lewis is to be accountable to the rest of my daughters in the sum of $3,500, and my daughter Leighton $5,120, these being the amounts paid for homes for them.
“4th. I will and direct that all my household and kitchen furniture, not before willed, silverware, all money in hand and due me, bonds, accounts, and everything which may be due from any source, crops, and any personal property which may be herein omitted, shall be equally divided between my son, E. W. Henry, and my five above named daughters.”

The court is of opinion, that reading these two clauses together, and looking to the general scope of the will, the intention of the testator was manifest in making, by the third clause of his will, an equal distribution of the balance of his real estate (after the disposition of that contained in the second clause to his son, Edward W. Henry,) among his daughters. He had in his lifetime advanced t'O his daughter, Mrs. Lewis, real estate to the value, fixed by himself, of $3,500, and to his daughter, Mrs. Leighton, real estate to the value, also fixed by himself, of the sum of *$5,120, these amounts being, as he expresses it in the third clause of his will above quoted, “the amounts paid for homes for them."

We think it is plain, that the testator disposing of his real estate among his five daughters, and having advanced certain real estate to two of his daughters as homes for them of the value of $3,500 to one, and $5,120 to the other, intended to make the distribution of this real estate equal by requiring his advanced daughters to account in the distribution for the real estate thus advanced ,at the price fixed by the testator.

We are of opinion that the third clause, thus disposing of his real estate, is entirely independent of, and is not controlled by the fourth clause of the will. The latter clause disposes of the residuum of the personal estate, which he directs “shall be divided equally between my son, E. W. Henry, and my five daughters.”

These two clauses are separate and independent. One relates to the disposition of his real estate, the other to that of his personal estate.

The advancements which the testator in his lifetime had made to his daughters were in real estate, “as homes purchased for them.” In disposing of his real estate, he requires an equal distribution; and in order to make it equal, his advance daughters are required to account in that distribution. Wh/m he comes to dispose of his personal estate in the fourth clause of his will, the objects of his bounty are no longer his daughters alone, but he divides this personal property equally among his son and his five daughters.

We think it is plain, that the testator having separated his bequests in two distinct clauses of his will, one having reference to real estate and the other to personal estate, and the objects of his bounty being different persons (in the one his daughters only, and *in the other his son and daughters), it was not his intention to charge the advancements to his two married daughters upon both the real and personal estate devised and bequeathed to them. If he had intended these advancements to be a charge ag'ainst both real and personal estate, he would not have created this charge by putting it in the third clause of his will, which related to real estate alone, but in a separate item, general in its terms, and without qualification of any sort.

• The court is therefore of opinion, that the advancements made by the testator in his lifetime are made by his .will a charge only upon the real estate disposed of by the third clause of the will, and are in no manner to be considered in the distribution of the personal estate bequeathed urider the fourth clause.

The second and most important question we have to determine arises under the codicil to the will of the testator, which is in these words:

“codicil.
“If. my estate should have to pay the debt, or any part thereof, in the lawsuit brought by Miller’s administrator against Dr. Wm. B. Lewis’ estate, I hereby will and direct that my daughter M. R. Lewis is to forfeit all interest in’my estate, and is to inherit nothing more under this my will.”

The record shows that this codicil had reference to a bond for the sum of $195.50, executed by William B. Lewis, the husband of Mrs. M. R. Lewis, payable to George M. Y. Miller, with the testator as the surety of said William B. Lewis, dated November 16th, 1858. In the year 1871 suit was instituted on this bond, and judgment in favor of Miller’s administrator against Mrs. Lewis as executrix of her husband. But it does not appear that any judgment was recovered against the surety (the testator), E. W. Henry, or that any suit or other proceeding was ever commenced against him on account of said suretyship.

But it-appears that the administrator of Miller, the obligee in this bond, assigned it to the testator and surety, by the following assignment which appears in the record: “For value received I assign the within bond to E. W. Henry, Sr., without recourse.” Signed, C. E. Miller, administrator of G. M. Y. Miller, by W. W. Henry, attorney.

It further appears’that this bond thus assigned to the testator, E. W. Henry, Sr., was found enfolded in his will.

In a bill filed by the executors of E. W. Henry, in the circuit court of Charlotte, the court is asked to construe the third and fourth clauses of the will above referred to, and also to construe the codicil; and the court is asked to say “whether on the facts stated (in the bill) the contingency mentioned in the said codicil has not happened; so that Mrs. M. R. Lewis is denied participation in the estate of her father; no part of the said debt having ever been paid by her or the estate of W. B. Lewis.”

In answer to this bill, Mrs. Lewis, after denying that her failure to pay the debt for which her father was bound as surety, in his lifetime worked a forfeiture of her interest in his estate under his will and codicil, produced in court and made then and there with the filing of her answer, a tender of the whole amount, principal, interest and costs, of the judgment against her husband, for which her father, the testator, was bound as surety, to Miller’s administrator.

*The circuit court decreed “that by the codicil annexed to his will the testator provided for a forfeiture of the portion of the estate willed to his daughter Lewis upon the happening of "a certain event, which actually occurred in the lifetime of the testator; and upon the happening of which she ceased to have any interest in the estate of the testator beyond the advancements to her by the testator in his lifetime; and the portion which had been willed to her passed to the other children mentioned in the third and fourth clauses; and there is no intestancy thereof.” The court is of opinion that the decree of the circuit court is erroneous.

The condition imposed by the codicil is plainly a condition subsequent. The distinction between conditions precedent and conditions subsequent is well marked and telearly defined by the authorities. The former are such as must generally happen or be performed before the legacy can vest. The latter are such as by non-performance, or breach of them, will in most instances defeat the legacy already vested. 1 Roper on Legacies 501. In other words, in the former the performance of the condition is required before the estate can vest; in the latter the failure to perform the condition will divest the estate. 2 Redfield on the Law of Wills 283; 2 Jarman, Ed. 1861-2.

In the case before use, the testator, by his will, devised a certain part of his estate to his daughter. By his codicil, executed six months afterwards, he declares, “If my estate have to pay the debt, or any part thereof, in the lawsuit brought by Miller’s administrator against Dr. W. B. Lewis’ estate, I hereby will and direct that my daughter M. R. Lewis is to forfeit all interest in my estate, and is to inherit nothing more under this my will.”

The condition here imposed is by its very terms a *condition subsequent. By it . Mrs. Lewis was to forfeit all interest in the testator’s estate if the condition was not performed. In other words, she was to forfeit, or be divested of all interest she had acquired under the will if the condition of the codicil was not complied with.

Nothing is better settled than that in conditions subsequent, since they are in defeasance of interests already vested, courts of law and courts of equity are strict in requiring the very event, or the act to be done, with all its particulars, which is to defeat the interest previously vested. Roper on. Legacies, 513, 514, and cases there cited. As was said Lord Alvanly, 5 Vesey’s R. 209, “where there are clear words of gift, creating a vested interest, the court will never permit the absolute gift to be defeated, unless it be perfectly clear that the ■very case has happened in which it is declared that the interest shall not arise.”_

Now the condition imposed by the codicil is, “If my estate have to pay the debt,” &c. Before there can be a forfeiture, the very event, to wit, the payment of the debt, for which the testator was bound, by his estate must happen. This never happened. His estate never paid one dollar of the debt. It was paid, principal, interest and costs, by Mrs. Lewis.

The fact that the debt was assigned to the testator, and filed by him in his will, has no significance, except to show that he intended that his estate should not be called on for payment, except on the condition of the forfeiture by Mrs. Lewis of her interest, provided for her and vested in her under his will. As long as he lived he had the control of the debt. If he had chosen to do so, he could have made its payment a condition precedent to his daughter’s taking any part of his estate, or, because of non-payment by her, have *cut her off from all participation in his estate. But he did not choose to do this; but taking an assignment of the debt to himself, he did not change his will, by which he made Mrs. Lewis ail equal beneficiary with his other daughters, but filed the bond with the will and codicil, in which he declared, “If my estate have to pay the debt,” &c., then his daughter, Mrs. Lewis, should forfeit her interest in his property devised to her. His estate has never paid'the debt. The event has never happened. The contingency has never arisen. A court of equity, always slow to enforce a forfeiture, will surely be quick to prevent it when there has not only been a substantial, but, as in this case, literal compliance with the condition imposed. That condition it is manifest was a condition subsequent, made in terrorem to secure the payment of the debt for which the testator was bound as surety.

The court is therefore of opinion that the decree of the circuit court of Charlotte is erroneous, and that the same be reversed.

The decree was as follow:

The court is of opinion, for reasons stated in writing and filed with the record, that the decree of the circuit court is erroneous: First, in holding that the advancements made by the testator to his daughters, M. R. Lewis and Lucy D. Leighton, was a charge upon both the personal and real estate devised and bequeathed to his said daughters in the third and fourth clauses of his will. Second, in declaring that tinder the codicil to said will the appellant, Mrs. M. R. Lewis, had forfeited her interest under the will, because of the non-payment by her in the lifetime of the testator of the debt of her husband William B. Lewis for -'‘which the testator was bound as surety. It is therefore decreed and ordered, that for these errors the said decree of the said circuit court be reversed and annulled, (but in all other respects be affirmed) ; and the appellant being the party substantially prevailing in this court, it is further decreed and ordered, that she recover of the appellees, Edward W. Henry, Jr., and James S. Buster, executor of Edward W. Henry, deceased, and of Edward W. Henry, Jr., in his own right, her costs by her expended in the prosecution of her appeal here.

And this court now proceeding to enter such decree as the said circuit court ought to have entered, it is ordered, adjudged and decreed, that under the true construction to be given to the will of the testator, Edward W. Henry, the advancements made in his lifetime to his daughters, M. R. Lewis and Lucy D. Leighton, are only to be considered in the distribution of the real estate devised to his five daughters, and that the personal estate bequeathed under the fourth clause of said will to his son and five daughters should be equally divided between them without reference to the advancements made to his two daughters, M. R. Lewis and Lucy D. Leighton, mentioned in the third clause of the will.

And it is further adjudged, ordered and decreed, that by the codicil to his will the appellant. Mrs. M. R. Lewis, did not forfeit her interest in the testator’s estate because the debt of William B. Lewis for which the •testator was bound as surety was not paid by her in the lifetime of the testator; that the condition imposed by the will was a condition subsequent, which was fully performed by her in the payment into court of the principal, interest and costs of said debt.

And this performance on her part entitles her to a full participation *in the division of the estate of her father, according to the terms of the will.

It is therefore decreed and ordered, that the decree of the said circuit court, to the extent in which it is herein declared to be erroneous, be and the same is hereby reversed and annulled; and that the cause be remanded to the said circuit court, to be further proceeded in in accordance with the principles herein declared.

Decree reversed.  