
    *Skipwith & als. v. Cabell’s Ex’or & als. Lee & als. v. Cabell’s Ex’or & als.
    April Term, 1870, Richmond,
    i. Wills—Interpretation — Conditional Legacy.—Mrs. C. au old and very wealthy lady, after disposing by her will and two codicils, of a large amount of her property, at the close of the second codicil says: In case of a sudden and unexpected death, I give the remainder of my property to he equally divided between my cousin Dr. C. of Philadelphia and my cousin P. S., of New Orleans, one-halt of which each must hold in trust for the benefit of their children. This is not a conditional legacy dependent upon the sudden and unexpected death of the testatrix.
    2. Same—Same—Same.—In such cases the question is whether the contingency Is referred to as the reason or occasion for making the disposition, or as the condition upon which the disposition Is to become operative.
    3. Same—Revocation.—The second codicil Is dated August 18, 1861. On the 27th November 1861. the testatrix made a sixth codicil, as follows: In consequence of the state of the country, I now revoke my bequests to Dr. O. and his children, and also to Mrs. T. her daughter C. and also to Miss D. all of them residents of Philadelphia. Evidence was offered to prove that testatrix had been advised that there was danger that the legacies would be confiscated by the Confederate government, and that this was the reason of the revocation. Hem):
    1. Same—Same.—If the advice was erroneous it would not avoid the revocation.
    2. Same —Same—Parol Evidence — Inadmissible to Show mistake oí Testatrix.—Parol evidence is not admissible to show the views or opinions of the testatrix, in order to show that she acted under a mistake. The mistake which Induces the revocation must appear on the face of the will.
    3. Same—Tenants in Common—Effect of Revocation as to One Tenant.—o. and S. took under the residuary clause of the will each one-half as tenants in common, and upon the revocation of the bequest to Dr. C., the half given to him does not pass to S. but is undisposed of by the will and goes to the next of kin.
    4. Same—“Money Legacies.”-By thefirst clause of her will testatrix says: Of the ten thousand *and fifty dollars which I received from my uncle Fitzhugh Garter’s estate, I give and bequeath two thousand dollars of it to Mrs. O.; two thousand dollars of It to Mrs. J.; two thousand dollars of it to my cousin Mrs. Y.; one thousand dollars of it to my friend Miss L.; one thousand dollars of it to Mrs. B.; one thousand and fifty dollars to Mrs. F. of Philadelphia, and one thousand dollars of It to my cousin Miss It. 1 give the sums mentioned above to Gen’l Cocke in trust, &c. At the death of the husband of testatrix he had standing in his name $10,050 of bonds of the State of Virginia which he had purchased with money derived from the estate of Fitzhugh Carter; he intended these bonds to be transferred to his wife and they were accordingly transferred to her by his ex'or. These are money legacies, and are not specific bequests of the bonds.
    5. Same—Ademption.—By another danse of the will testatrix leaves to the unmarried daughters of her cousins B. and C. “my guaranteed bonds of the James River and Kanawha Company, to be equally divided between them.” After the date ot" the will an act was passed which authorized the holders of the bonds of this Company, for which the State was bound, to surrender them and receive in lieu thereof, bonds of the State for the same amount, and under this act the testatrix exchanged her guaranteed bonds for State bonds, which she held at her death. The exchange of the guaranteed bonds for Stale bonds was not an ademption of the legacy; and the legatees are entitled to have the State bonds.
    6. Investment in Confederate Bonds.—In tiie progress of a suit brought by the ex’or to have the estate administered, the court authorized him to invest funds of the estate in his hands, in Confederate bonds. He paid large sums of Confederate money to one of the residuary legatees, but the parties entitled, to the other half of that legacy being unascertained, he paid nothing to them. Heed:
    1. Same—Loss Borne Ratably.—That the loss sustained by the investment in Confederate bonds, must be borne ratably by all the parties entitled to residuum.
    2. Same—Scaling.—That in ascertaining the residuum, and the payments made to the one residuary legatee, these payments must be scaled according to the value of the money at the time of the payment.
    
    7. Will—Interpretation.—-By the second clause of the will testatrix says: I give half the Virginia State stock that I may own when I die to my cousin S. L. He is entitled to one-half of the 'aggregate ’'"amount of State stocks she owned at her death, except the Slate bonds exchanged for the guaranteed bonds of the James River and Kanawha Company. But though her money was invested in State bonds by a bank in its own name, and deposited with the treasurer of the State, under an agreement with her to pay the taxes on the bonds, and also the investment, and return her the bonds when she required it, or purchase others and deliver them to her, this does not make the bonds hers, so as to entitle S. L. to one-half thereof.
    This was a bill filed in January 1863, in the Circuit court of Nelson county, by D. J. Hartsook, executor of Mary W. Cabell, deceased, to obtain a construction of certain clauses of her will and the codicils thereto, and to have the direction of the court in the administration of the estate. The legatees interested in the clauses, which were supposed to be of doubtful construction, and the next of kin, so far as they were known, were made parties defendants.
    Mrs. Cabell was the widow of the late Joseph C. Cabell, of Nelson county, and she died in that county in December 1861. She was the daughter of George Carter, and her mother was a Skipwith. She was an old lady, possessed of a very large estate, consisting principally of slaves, bank stock and bonds, without children, or brothers or sisters, or their descendants; all her uncles and aunts but one were dead, and her next of kin scattered over the United States, and a number of them in Furope, were the descendants of these uncles and aunts; and those of them who were known and made parties in this suit were about one hundred.
    The will of Mrs. Cabell, and the six codicils thereto, were written by herself; and they give abundant proof that not only the handwriting, but the whole frame and structure, as well as the provisions of these instruments, were her own work. The legatees number about fifty, and the legacies range from a gold thimble up to twenty thousand dollars, and even more, given specifically, *beside the residuary bequests. The clauses of the will •and codicils on which the questions decided in this court arose, or which may throw light upon them, are the following: The will is dated the 22d of December 1859, .and says first: “Of the ten thousand and fifty dollars which I ■ received from my uncle Fitzhugh Carter’s estate, I give and bequeath two thousand dollars of it.to Mrs. Hill Carter, of Shirley; two thousand dollars of it to Mrs. Mary Cabell Irvine; two thousand dollars of it to my cousin Mrs. Fanny Young; one thousand dollars of it to my friend Miss Buey Claiborne; one thousand dollars of it to Mrs. Margaret Brown, daughter of Mrs. McClelland; one thousand and fifty dollars to my friend Mrs. Fanny Taylor, of Philadelphia; and one thousand dollars of it to my cousin Miss Bandonia Randolph. I leave the sums mentioned above, to Gen’l Cocke, in trust for the sole and separate use of the ladies whose names are mentioned.”
    The second bequest is:—“I give and bequeath half the Virginia State stock that I may own, when I die, to my cousin Smyth Bee.”
    After a number of other bequests, the first of them being to her cousin Peyton Skip-with of all the Richmond city stock that she might own at her death, and her mother’s portrait, comes the following: “I leave to Dr. Charles Cocke, in trust for the sole and separate use of the now unmarried daughters of my cousin Carter Braxton, and my cousin Dr. Corbin Braxton, my guaranteed bonds of the James River and Kanawha Company, to be equally divided between them.”
    In the conclusion she says:—-“I have written one, and I mean to write another codicil to this will. ’ ’ And after signing it she says:—I appoint my cousin, P. H. Skipwith, my executor; if he cannot act, I appoint D. J. Hartsook, without either of them giving security.
    The first codicil is dated the 24th of December 1859. After making a number of bequests of money, trinkets, *portraits and furniture to different persons, sh^ signs it; and then adds: I intend, hereafter, writing another codicil to dispose of the rest of my property; but in case of a sudden death, I will add to this codicil, that I give to my cousin, Peyton H. Skipwith, my servant Peyton, &c., mentioning several slaves. And then, after another signing, comes the following clause: “I have specified in several instances, exactly what different stocks are to be given to different persons; but in case changes be made in the location of my stock, I wish it to be distinctly understood, that out of my general property, those same persons are to receive the sums of money specified as given to them. I also leave all and every thing' that I have given to my cousins, Peyton Skip-with and Smyth Bee, in trust to D. J. Hartsook for their sole and separate use, to do with as they please.”
    The second codicil, which is dated at its commencement, on the 28th of February 1861, and at its conclusion, August 18th, 1861, after several legacies of money to other persons, gives to Miss Cornelia Taylor, of Philadelphia, one thousand dollars, and to Mrs. Bewis, of Philadelphia, two thousand dollars; and then says: ‘ ‘In case of a sudden and unexpected death, I give the remainder of my property to be equally divided between my cousin, Dr. Carter of Philadelphia, and my cousin Peyton Skip-with, of New Orleans one-half of which, each must hold in trust for the benefit of their children.”
    The third, fourth and fifth codicils are of no importance; the sixth, which bears date the 27th of November 1861, says: “In consequence of the state of the country, I now revoke my bequest to Dr. Charles Carter and his children, and also to Mrs. Fanny Taylor, her daughter Miss Cornelia Taylor, and also to Miss Fanny Bewis, all of them residents of Philadelphia.”
    *On the 30th of April 1863, the court, on the motion of the plaintiff, made an order, that it appearing that the plaintiff has money in his hands received in the due course of his trust, belonging to the estate of his testatrix, which moneys, owing to the difficulties and doubts concerning the construction of the will, and the dispersed situation of some of the legatees, he is unable to -pay over to the parties entitled, leave is granted him to invest the whole or any part of said money in registered bonds of the Confederate States or of the State of Virginia, taking said bonds in his name in his fiduciary character. And it shall be the duty of the plainfifl: to preserve the bonds thus taken, and to exercise due diligence in collecting the interest thereon.
    Several of.the legatees mentioned in the first clause of the will, Smyth Bee and Peyton H. Skipwith, answered separately, and all the next of kin mentioned in the bill united in an answer; all of them setting up their respective pretensions. But without going into detail, the several questions, with the evidence in relation to them, may be stated as follows:
    It was contended by the legatees under the first clause, that they were demonstrative legacies, and that the legatees were entitled to receive in money, the sums men-, tioned. And it appeared from the evidence that Joseph C. Cabell, the husband of the testatrix, had, in his lifetime, received from the representatives of Ritzhugh Carter’s estate, a sum of money which he invested in State bonds in his own name, to the amount of ten thousand and fifty dollars. As this was money derived through his wife, he wished it to be transferred to her, and had executed a power of attorney to D. J. Hartsook, authorizing him to transfer the stocks to her; though this power had not been delivered to Hartsook, and nothing was done under it during his lifetime ; but after his death, with the consent of the residuary legatees of Joseph C. Cabell, his executors transferred the *stock to Mrs. Cabell. These bonds were kept separate from her other bonds by Mrs. Cabell, and they are entered separately in the book in which she entered a statement of the bonds and stocks which she held. This book was before the commissioner, and is referred to as marked A.
    Under the second clause of the will, Smyth Uee claimed that he was entitled to one-half of all the State bonds which the testatrix owned at her death. Of these bonds, there were $29,550 of which there was no dispute, that he was entitled to one-half. He contended that the bonds mentioned in the first clause should be taken into the estimate and added to the above sum; and further, that bonds to the amount of $7,600, which she held at her death, and for which she had exchanged her guaranteed bonds of the James River and Kanawha Company, should be taken as constituting a part of the State bonds referred to in the second clause of the will. And he insisted still further, that the Bank of Howardsville held the State bonds of the testatrix to the amount of $34,600, which should also be taken as a part of the fund of which he was entitled to share.
    It appears from the evidence, that at the time Mrs. Cabell wrote her will, she held $7,600 of the bonds of the James River and Kanawha Company, guaranteed by the State. These are the bonds given in the will to the unmarried daughters of Carter and Corbin Braxton. On the 23d of March 1860, the general assembly passed an act to amend the charter of the James River and Kanawha Company, bj' the 4th section of which act, the Board of Public Works was directed, upon the surrender by the holders thereof, of any of the bonds of the James River and Kanawha Company, for the payment of which the State is responsible, to issue to said holders a correspondent amount of the bonds of the State. Under this act, Mrs. Cabell surrendered her guaranteed bonds, and received in lieu thereof, a certificate *of debt of the State for $7,600, bearing date January 1st, 1861; and this she held at her death.
    In relation to the $34,600, Hartsook who was the agent of Mrs. Cabell during her widowhood, for the management of her property, and also the cashier of the Howardsville Bank, states in his first examination: “The sum of $34,600 of State stock, purchased from time to time, in the lifetime of Mrs. Cabell, was transferred by her or by me as her agent, to the Bank of Howardsville; the agreement being that the said bank should pay the State taxes, and Mrs. Cabell should receive the interest. This stock was either purchased in the name of the Bank of Howardsville, or transferred to said bank, and now stands in the name of said bank, and is held by the State treasurer as security for the redemption of the issues of said bank. This stock is not entered in the book marked A (the book kept by Mrs. Cabell in which she entered her stocks and bonds), and heretofore referred to; not being in her possession, but standing as above stated, in the name of the bank, and the certificates in the hands of the State treasurer.
    In his second examination he says: On the ledger of the Bank of Howardsville, there stands to the credit of Mrs. Mary W. Cabell’s estate the sum of $34,600, in the registered stock of the State of Virginia. This affiant was cashier of said bank, and the agent of Mrs. Cabell; and at various times had collected for her, and had in his possession, large sums of her money, which money she wished invested in stocks. This affiant at various times purchased from others certificates of stock of the State of Virginia, which was by them transferred to the Bank of Howardsville, and by it deposited with the treasurer of the State for the purposes mentioned in the charter of the bank. This was done in pursuance of an agreement with Mrs. Cabell, that the bank was to pay her the whole interest on said stock, taxes thereon to be paid by the bank; and whenever *Mrs. Cabell wished it, the bank was to redeem the stock so deposited, or purchase for her a like amount. After her death I transferred to her credit on the books of the bank all the stock thus purchased and deposited with the treasurer of the State, amounting to $34,600 as above stated. During her lifetime this affiant was credited with this stock on the books of the bank, but the officers of the bank knew it to be Mrs. Cabell’s,under the agreement aforesaid; and therefore her estate was credited with it. “There was no written contract between Mrs. Cabell and the bank in regard to this matter.” He further stated, that of this $34,600 there were still deposited with the treasurer three certificates of $10,000 each deposited by the bank, two of which are the identical certificates deposited by him; the residue, amounting to $4,600, he believed had been exhausted in the redemption of the issues of the bank.
    The commissioner who was directed to enquire into the facts in relation to these subjects, reported the facts as herein stated; and on the last question concluded his report as follows: No evidence that Mrs. Cabell ever owned any such stock appears on her book, wherein she kept lists of her stocks, which is herewith filed, marked cotn’r A. It therefore appears to the com’r that the Bank of Howardsville was a borrower of Mrs. Cabell to the extent of said $34,600, and is debtor to her estate in that amount; and he, so regarding it, has listed the same among the assets of the estate, as a debt due from said bank; and under the provisions of the charter of said bank has reported it as a good debt. The report on this question was excepted to by Smyth Dee.
    The legatees of the bonds of the James River and Kanawha Company, guaranteed by the State, insisted that the exchange of the bonds was an ademption of the legacy; and that under the provision of the 1st codicil, they were entitled to be paid out of the general *property of the estate the nominal amount of the bonds. And Peyton H. Skipwith insisted that the residuary clause of the will in favor of Dr. Carter, of Philadelphia, having been revoked, he was entitled to the whole of the residuum. Whilst the next of kin insisted, first, that the bequest of the residuum having been on the contingency of her sudden and unexpected death, and this not having occurred, the bequest was void; and, second, that if the bequest was valid, it was revoked as to the one moiety given to Dr. Carter; and as to that and the other legacies mentioned in the clause of revocation, Mrs. Cabell died intestate, and that the legacies given to these legatees, passed to them as the next of kin.
    In relation to the revocation of the bequest to Dr. Carter and the other legatees living in Philadelphia, Hartsook, in his examination, says: Some time before her (Mrs. Cabell’s) death, I was at her house, and she said she had made her will and had written it so plain that no difficulty could be made; and said she wanted the persons to whom she had given her property to get it as soon after her death as possible. I remarked to her, that under the sequestration act, if she had given property to any of her northern friends, it might be confiscated, and that I mentioned it for her consideration. She thanked me, and said she had, and that she would revoke the bequests. On visiting her the next time, she remarked that she had revoked the bequests to her northern friends on account of the state of the country. I then asked her if she had made any disposition of the property given in these revoked bequests, or whether she had any residuary clause to her will which would take it. She replied she had a residuary clause; and that would do. I told her that perhaps it would not. She replied, well, I cannot help it now. She was suffering greatly and very feeble.
    Mrs. Mosby, another witness, says: “She (Mrs. *Cabell) talked about dying for several months before her death, but I do not think she gave up all expectation of recovery until about eight days before she died.
    The only other questions in the cause were, whether the assets, amounting to $47,600, invested under' the order of the court in the cause in 'Confederate bonds, were to be considered as invested for the next of kin, and they to bear the whole loss, or whether it was to be considered a part of the residuum, and the loss to be borne by all the parties interested in that residuum; and, second, whether the payments made by the executor during the war to " Peyton H. Skipwith, on account of his interest in the residuum, should be charged to Skipwith at their nominal amount, or at their real value at the time of payment. These payments amounted to $73,910 in Confederate money.
    By the decree of the court made on the 10th of October 1866, the court held, 1st. That the bequest of the residuum was not on a contingency which avoided it. 2d. That Peyton H. Skipwith took only one-half of the residuum, and the testatrix died intestate as to the half left to Dr. Carter. 3d. That the legatees of the Fitzhugh Carter fund under the first clause took only the State bonds. 4th. That the legacy of the guaranteed bonds of the James River and Kanawha Company was adeemed by the change into State bonds; and that the legatees were entitled to be paid the nominal amount of said bonds out of the general assets of the testatrix. 5th. That the State bonds constituting the Fitzhugh Carter fund, except the $1,050 left to Mrs. Fanny Taylor of Philadelphia, and afterwards revoked, were not to be taken into the account of the State bonds owned by the testatrix at her death, of which Smyth Dee was to receive one-half. And the commissioner’s report was recommitted, with instructions to retake the accounts before ordered and any others which the parties may require to be taken.
    *The second decree was made on the 10th of October 1867, when the court held, that the $47,600 invested under the order of the court in Confederate bonds, should be embraced in the residuum, and all the parties interested in that residuum should bear the loss ratably; and that Peyton H. Skipwith should be charged only the real value of the Confederate money received by him from the executor on account of his interest in the residuum, as at the time it was paid to him.
    From these decrees, Skipwith for himself, and as trustee for his children, obtained an appeal to the District court, where they were affirmed; and he then obtained an appeal to this court. On the 8th of May 1868, after the decision in the District court and before the appeal to the Supreme Court of Appeals, the Circuit court made another decree, carrying out the principles settled in the former decrees. And C. C. Dee and others, the next of kin, obtained an appeal from that and the former decrees.
    Baldwin, for the appellant Skipwith. It is obvious on the face of these testamentary papers, that it was the intention of this testatrix not to die intestate as to any part of her property. Her next of kin are exceedingly numerous, there being over one hundred of them parties on this record; and they are scattered over the world; many of them wholly unknown to her.
    
      1st. I shall discuss the effect of two of the codicils of this testatrix: first, that of the 18th of August 1861, which is the second codicil to the will; and second, that of the 27th of November 1861, which is the sixth of these papers. It is said for the next of kin that the provision in the second codicil, giving the residuum of the estate to Dr. Carter and Peyton Skipwith and their children, is contingent, depending on the sudden and imexpected death of the testatrix; and that she did not so die. This language is used in the first codicil; and *it is not pretended that in that codicil it has this effect. Here is an old lady, seventy-five years old; what death as to her can be sudden and unexpected. In construing such words the courts are cautious in construing them as conditions. 1 homax Ex’ors 19; 1 Redfield on Wills 176, 178-9, 180. This being an olograph will, no particular formality7 is required in its ptiblication. Now this second codicil is dated the 18th of August. She made several codicils afterwards; and in none of them has she shown a disposition to change it. In the sixth codicil she recognizes this provision in the second, for there is no other bequest to Dr. Charles Carter and his children.
    2d. It is said on behalf of Dr. Carter and his children, that the revocation of the bequest to him and his children in the sixth codicil is void, because it was done under a mistake. There are some cases of mistake which will avoid a provision in a will; there are some cases in which a testator is allowed to be deceived; as a bequest under the belief that the attention of the legatee proceeds from affection; it will not be allowed to show that this was not the fact. On the other hand, when there has been a bequest to a son, which has been revoked under the belief that he was dead; the revocation will be held to be void. And if there is a bequest to a woman under the belief that she is his wife, and it appears she is not his wife, the bequest is void. But in all these cases you must find the mistake on the face of the will, and it cannot be proved by parol. 1 Domax Ex’ors SI; 1 Redfield Wills 3S8. The distinction taken in the cases is shadowy; and the only safe rule is that you must stand upon the will and the facts appearing in it which induces the revocation. In this case the testatrix says in consequence of the state of the country she revokes the bequest. If the state of the country was not as it was, then you might say the mistake would avoid the revocation.
    *It is said that this is a patent ambiguity, and therefore parol proof is admissible to explain it. Parol evidence to prove what was the state of the country; what Mrs. Cabell thought was the state of the country ! Counsel confine it to her mistake as to confiscation; but no case goes so far as to hold that a mistaken belief or opinion or conjecture will avoid the revocation. Who will say what was the state of the country at that time? Though Hartsook says he suggested the danger of confiscation, she says, she revokes on account of the state of the country.
    3d. The counsel, all of them, seem to consider that the rule in relation to lapsed legacies governs this case. It in fact has no application to it. A lapsed legacy is a defeat pro tanto of the testator’s will. The courts have said if a specific legatee dies in the testator’s lifetime, the legacy goes into the residuary bequest; not because the testator intended it; but for no reason but the strong disposition to prevent an intestacy. They presume what is true, that a party sitting down to write his will intends to dispose of the whole of his estate.
    Then when they came to the residuary estate, as there may be two residuary legatees, they established the rule, that where they were joint legatees, and one died in the lifetime of the testator, the survivor should take the whole; but if they7 were to take as tenants in common, it does not pass to the survivor.
    And so there is another rule. If there is a bequest to a class, the legacy will go to those who survive the testator.
    These are arbitrary rules established by the courts; and these being established, gentlemen jump to the conclusion, that the rule applies to a revocation of a legacy. But there is no ground for this conclusion. When a testator revokes a legacy, he is doing a testamentary act; and it is his intention which is to govern. In the *one case, the intention of the testator is defeated; in the other, his intention is expressed. The codicil is a part of the will, and both are to be regarded as one paper. It is a republication of the will as modified by7 the codicil, and if there is a clause of revocation, the will is to be read as if the clause revoked was non scriptum.
    Then, if the courts struggle against an intestacy when the intention of the testator is defeated, much more should it be the policy of the courts to construe the testamentary acts to effect the same object. 2 Redfield Wills 442, giv.es the rule as to lapses. The testator is supposed to give away the legacy from the residuary legatee only in favor of the special legatee. A fortiori, the court is bound to presume against the intestacy in the case of a revocation, and to enquire what is the intention of the testator expressed upon the face of the paper read as one.
    It may be supposed that this question is concluded upon authority; but I have been surprised to find how little authority there is upon it. The judges and text writers have fallen into the error of confounding the principles; yet, there is no such authority as concludes it. The first case is Humphreys v. Taylor, Amb. R. 136. This case shows that the will is to be read as if the bequest revoked was non scriptum. In a case of a lapse, you must read the will as with the clause in it; but when you consider a revocation, you read it as with the clause out. This case is referred to in several books. Larkins v. Larkins, 3 Bos. & Pul. R. 16, , 17, refers to Humphreys v. Taylor, for the principle that a revocation without a new gift is the gift of the whole to the other. Bacon’s Abr. folio edi. Wills & Testaments, Letter G.
    This case of Larkins v. Larkins, is a case in favor of the appellant; as is also Harris v. Davis, 28 Eng. Ch., 1 Coly. R. 416.
    The only case in which in such a case as the present, *the revocation was held to be a lapse, is Creswell v. Cheslyn, 2 Eden’s R. 123. To this case, is appended a note of sergeant Hill, in which he -questions its correctness.. Then the question is, whether this case so disapproved, so settles the law as to bind this court.
    Then how does this will read as corrected by the codicil. I give the remainder of my property to be equally divided between my cousin Dr. Carter of Philadelphia, and my cousin Peyton Skipwith of New Orleans, &c. Strike out all that relates to Dr. Carter ; and it will all be given to Skipwith. This is not a case of artificial construction, where you are settling a principle; but it is a case of the intention of the testatrix in writing the two provisions. The whole is given to be divided; the division is dispensed with, and therefore-it is not to be divided. You re-write the will and strike out every thing which relates to Dr. Carter and his children.
    Fitzpatrick, for Smyth Lee’s adm’x. We contend that there is error in the decrees and rulings of the court below, in so far as the decrees relate to the distribution of the Virginia State stocks; first, because $10,050 of State stocks, called the Fitzhugh Carter fund, is ordered to be distributed as specific stock legacies, and not to be estimated as stock owned by the testatrix at her death, in the computation to be made, to ascertain the legacy which would pass to Smyth Lee under the second clause of the will; by which ruling the legacy of Smyth Lee is diminished to the extent of $4,500 in State stocks.
    Second, because $34,600 of State stocks which were loaned to or deposited with the Howardsville Bank, were not treated as the property of the testatrix, whereby the legacy to Smyth Lee is diminished the sum of $17,300, being one-half of the stocks so deposited.
    The question i.s one purely of construction, and *must be decided by gathering the intention of the testatrix from the instrument itself. The language used in the second clause of the will is general and not restricted in the least. By it Smyth ,Lee is entitled to receive one-half of all the State stock owned by the testatrix at her death; no exceptions whatever are made; we have only to ascertain what amount of Virginia stocks were owned by testatrix at her death in order to fix the rights of this legatee. But it is contended that the legacies given under the first clause of the will are specific stock legacies and not demonstrative, as the authorities would indicate. If this be so, which we submit is not the case, yet the general legacy to Smyth Lee, although it ma3r have been fluctuating during the life of the testatrix, cannot be reduced by reason of such specific legac3’-, provided the common fund charged with the specific and general legacy be sufficient to satisfy both; as in this instance. It appears from the master’s report that the testatrix owned at her death $37,700 of Virginia stocks, one-half of which is $18,850, which, if the Fitzhugh Carter stock be added, will amount to $28,900, which being deducted from the $37,700, leaves in stock for general administration, the sum of $8,800, after paying all stock legacies, general and specific. Thus it will be seen that, without necessity, the provisions of the second clause of the will are limited and restricted by the decree of the court, so as to reduce the legacy thereunder; thus doing violence, to the plain meaning of the language used. But it is contended that the first clause qualifies the second. In what wa3r? No allusion is made in either clause to the other. If the legacies under the first clause were specific, and there was not enough stock to satisfy all stock legacies, general and specific, then the specific stock legacies would be paid to the exclusion of the general stock legacies; but no such question can arise here, as a large amount of stock remains after satisfying all. *But it may not be amiss to enquire if the legacies under the first section of the will are specific; if so, they are specific stock legacies, and a sale of the stocks by the testatrix in her lifetime would have defeated the legacies. Would such a sale have so operated? We think not. The Fitzhugh Carter fund would have remained, and the legacies would be paid as general money legacies or as demonstrative legacies; which would not be the case if they are specific legacies. We think there is clearty error in this part of the decree.
    As to the second ground of the complaint, we think that the record abundantly shows that at the time the testatrix made her will, she believed that she was the owner of State stocks, deposited with the Bank of Howardsville, to the amount of $34,600, which had accumulated in the hands of her agent D. J. Hartsook during the period from 1856 to 1858, and which had been invested by said agent under her direction. Under this belief she makes her will in 1859, giving Smyth Lee one-half of all her State stocks. Was it not her intention to embrace one-half of the State stocks deposited with the Bank of Howardsville in this bequest? Clearly it was. The stocks were purchased with her money. She received the interest. Her agent, who was also the cashier of the bank, regarded them as belonging to her.. She died under that conviction; they were listed and appraised as her property; and were in truth hers against the world, except that being in the hands of the State treasurer they were liable to make good the redemption of the notes of the bank; and that, not because they belonged to the bank, but because they were deposited for that purpose under an arrangement between the bank and the owner, which was accomplished bjr the cashier of the one and agent of the other, who happened to be one and the same person. But for the results of the war, this stock would have been released by the bank, and returned *to the estate; in which event no difficulty or question would have been raised as to the right of Smyth Bee to receive one-half of the same. If the bank cannot replace the stocks, is not Smyth Bee entitled to one-half of the claim against the bank for said stocks? We think he is, and therefore ask that the decree be corrected accordingly. We do not think it necessary to add words in support of that portion of the decree which gives to Smyth Bee one-half of the guaranteed bonds of the James River and Kanawha Company which had been converted into State stocks in the lifetime of the testatrix. They were Virginia stocks at her death, and, as such must pass under the will.
    Byons and Young, for Mrs. Irvine, &c., insisted:
    I. That the bequests to Mrs. Irvine, Mrs. Young, and Miss Buey Ann Claiborne are demonstrative legacies, so far partaking of the nature of specific legacies, that they are not liable to abatement, and must be paid before any residuum can be declared. I. Roper on Begacies 198-9; 2 Bomax on Ex’ors 70, 71.
    II. That the bequests in the second codicil to Dr. Charles Carter and Peyton Skipwith, being made “in case of a sudden death,” which did not occur, pass nothing, and the subsequent codicils show that the testatrix so regarded them. 1 Jarman on Wills 156, 7, 8.
    The testatrix left no residuary legatee; therefore,
    III. The legacies to Dr. Carter and his children, Mrs. P. Taylor, Mrs. Cornelia Taylor and Miss Panny Bewis, were expressly revoked by the sixth codicil.
    IV. The devisees, Skipwith and Carter, if they took at all, took in severalty, and not jointly, as they would have done if the subject had not been money ; the bequest is not to them jointly, but “to be equally divided” between them, and each therefore took one moiety in severalty, and not one-half of each dollar and each share *of stock. And the executor could not legally have paid or transferred to either, more than a moiety; to have paid two-thirds to either, when both were living, would have been a devastavit as to the excess above a moiety. Between such owners or tenants there would have been no survivorship at the common law; but if there would, there can be none in Virginia, because of the statute which abolishes it. The idea that Skipwith succeeds to the share of Dr. Carter and his children, is entirely without foundation ; and as to that share, as well as to the share of Mrs. Panny Taylor and her daughter, and Mrs. Bewis, the testatrix died intestate. The legacy to Dr. Carter was for his children, and did not lapse, but was revoked. But the rule that lapsed legacies fall into the residuum does not apply to the subject of the residuary legacy itself. Frazier v. Frazier’s ex’or et al., 2 Leigh 642.
    V. As to the bequest to Smyth Bee, there is no difficulty, and no conflict between that bequest and the bequest to these appellees. First, because, as already shown, the legacies to those legatees cannot fail. Secondly, because the testatrix, knowing that the $10,050, which she received from Fitzhugh Carter, was invested in State stock prior to the devise, by the bequest of the fund bequeathed the stock necessary to pay it, and therefore did not intend to bequeath it, and did not bequeath it to Smyth Bee; and intended, of course, to bequeath him one-half of her State stock, exclusive of that in which the fund aforesaid was invested, and so much, if any, as might be necessary to raise the amount of the legacies. Any other interpretation of her will would convict the testatrix of the absurdity of bequeathing a fund in the first clause of her will to one set of persons, and the very next clause to another person. Such interpretation is repudiated by the law, as it is by common sense; the rules of law being, first, that every interpretation of a will shall be rational; and secondly, *that the interpretation shall be such, if practicable, as to give effect to all parts of the will, and destroy none.
    In this case, the interpretation here insisted upon conforms to all these rules, and makes the will harmonious; while the opposing interpretation violates them all, and makes the will incongruous. 2 Williams on Ex’ors, p. 974, {j 3.
    Howison, for Dr. Carter and his children, insisted:
    1. That it was the clear intent and meaning of the testatrix that Dr. Carter and his children should have one-half the residuum of her estate, and full effect should be given to this intent.
    2. That the deposition of D. J. Hartsook is admissible in evidence to show acts and declarations of the testatrix or in her presence just before and just after the 6th codicil was made, in order to ascertain its true meaning. 1 Jarman on Wills 362-367; Shelton’s ex’ors v. Shelton, 1 Wash. 53; Flemings v. Willis, 2 Call 5; Mackey v. Fuqua, 3 Call 19; Bates v. Holman, 3 Hen. & Mun. 502; Ambler v. Norton, 4 Hen. & Mun. 23; Jones v. Robertson, 2 Munf. 187; Land v. Jeffries, 5 Rand. 211; Early v. Wilkinson & Hunt, 9 Gratt. 68; Smith’s ex’or v. Spiller, 10 Gratt. 318.
    3. That in the light of this deposition, of the codicils themselves, and of the public history of that time, it is clear that the testatrix did not intend to revoke her bequest to Dr. Carter and his children unless it was subject to confiscation.
    4. That her impression that it was so subject was false both in law and in fact. In law, because the sequestration acts of the Confederate congress were null and void in law. Folliott v. Ogden, 1 H. Black. R. 123, 136; Same on appeal, 3 Durnf. & East 726-737; Wolff v. Oxholm, 6 Maule & Sel. 92; Texas v. White & als., 7 Wall. U. S. R. 701. In fact, because the sequestration acts never confiscated the property, but only sequestered the ^annual interest, rents and profits. Act August 30th, 1861, sec. 6.
    5. That the sixth codicil being made under the influence of an impression false at the time, though not ascertained to be false until afterwards, did not revoke the bequest previously made in favor of Dr. Carter and his children. Jarman’s Powell on Devises, 21 Baw Bib. top pages 306, 309; 1 Jarman on Wills 163-166; T Bomax on Ex’ors 51-S3; Campbell v. French, 3 Ves. R. 321; In re Moresby, 1 Haggard’s R. 378; Doe dem. Evans v. Evans, 2 Perry & Dav. R. 378; Tulk v. Houlditch, 1 Ves. & Beame R. 248. The distinction made in the following cases does not weaken, but rather confirms the above: Att’y Gen’l v. Ward, 3 Ves. R. 327; Ashburnham v. Bradshaw, 2 Atk. R. 36; Att’y Gen’l v. Lloyd, 3 Atk. R. 551; Willet v. Sandford, 1 Ves. sen. R. 178, 186.
    Even the word “revoke” will be construed not to revoke a bequest, when the true intent is not to destroy the benefit previously given. Lord Carrington v. Payne, 5 Ves. R. 404; 1 Jarman Wills 441, 458.
    Grattan and Young, for the unmarried daughters of Carter and Corbin Braxton. Dor these legatees we insist:
    That by the surrender of the guaranteed bonds and the taking the State bonds, these legatees have become entitled to come under the provisions of the codicil, and to receive the amount of the bonds out of the general property of the testatrix.
    1st. Upon the language.of the codicil.
    2nd. Because the legacy was specific, and adeemed by the change of the bonds; and thus is the case provided for by the codicil.
    1. Begacy specific.
    2 Lomax Ex’ors, p. 73, 74; Barton v. Cooke, 5 Ves. R. 461; Sibley v. Perry, 7 Ves. R. 522, 529, 530; Parrott *v. Worsford, 1 Jac. & Walker 574, 582; Ashburner v. McGuire, Lead. Cas. Equ. 201, 346, 352, 353; Patteson v. Patteson, 1 Mylne & Keene 12; Ademption, Lead. Cas. 356-7-8. Intention not the enquiry. King’s ex’ors v. Sheffey’s adm’r, 8 Leigh 614.
    The act of March 23d, 1860, Sess. Acts of 1859-60, p. 113, did not, of its own operation, convert the bonds of the company into State bonds. See § 13, p. 117.
    2. The amount of the bonds is to be paid out of the general property. On the language of the codicil.
    3. If the legacy is not adeemed, the legatees are entitled to the State bond into which the guaranteed bonds were converted.
    Halyburton & Gites, and J. Alfred Jones, for the next of kin, insisted. 1st. That the disposition made by the codicil of August 18th, 1861, is inoperative because it was only to take effect “in case of sudden and) unexpected death” of the testatrix; and her death was not sudden and unexpected. And they referred to the cases of Parsons v. Banoe, 1 Ves. sen. R. 190; and Sinclair v. Hone, 6 Ves. R. 607.
    2d. That the legacy of the guaranteed bonds to the unmarried daughters of Carter and Corbin Braxton was not adeemed; or if it was, they were not entitled to be paid out of the general property of the testatrix. And they referred on this point to 2 Bomax Ex’ors 105-6; Stout v. Hart, 2 Halst. Law R. 414; Anthony v. Smith, 1 Busbee Equ. R. 188.
    3d. That the legacy to Mrs. Irvine and others of the Ditzhugh Carter fund, was a specific legacy of the State bonds. That it came precisely within the definition of a specific legacy as given by Williams; and exactly resembles the case of Rider v. Wager, 2 P. Wms. R. 328, cited 2 Wins. Ex’ors 820, 821.
    4th. That the legacy to Dr. Carter and his children of one-half the residuum of the estate, was revoked *by the codicil of the 27th of November. That the bequest was not shown to have been revoked under a false impression or in consequence of such impression; and they insisted that extrinsic evidence was inadmissible to show a different motive from that stated in the will. And thejr referred to 1 Jarm. on Wills 343 top, 348 marg. 2d Amer. edi. ; 2 Philips on Evi. Cow. & Hill 350, (S 4; Wooten v. Redd, 12 Gratt. 196; Ratcliffe v. Allison, 3 Rand. 537; Land v. Jeffries, 5 Id. 211; Roberts v. Roberts, Law Journal 1862, No. 4, p. 46, of Probate, Matrimonial and Admiralty; In re Winn, Jurist of 1861, part 1st, p. 764; Maxwell v. Maxwell, 3 Metc. Ken. R. 102; Dougherty v. Dougherty, 4 Id. 25.
    5th. That by the revocation of the bequest to Dr. Carter, the next of kin became entitled to the legacy bequeathed to him. And they referred to 2 Wm’s Ex’ors 763; Viner v. Francis, 2 Cox’s R. 189; Doe v. Sheffield, 13 East’s R. 526; Andrews v. Partington, 3 Bro. C. C, 401 in note; Gaskell v. Holmes, 25 Eng. Ch. R. 438: Mann v. Mann, 2 Stra. R. 905; Bagnell v. Dry 1 P. Wm’s R. 700; Page v. Page, 2 Stra. R. 820; Knight v. Gould, 2 Myl. & Keene R. 295, 8 Cond. Eng. Ch. R. 2; Sykes v. Sykes, 3 Law R. 1867-68, 299; S. C. in the Chancery Appeal Cases, 3 vol. p. 301; Lord Bindon v. Earl of Suffolk, 1 P. Wm’s R. 96.
    6th. And they insisted that Skipwith should have been charged with the whole amount received by hini from the executor at its nominal amount, $73,910.
    
      
      WiIIs — Interpretation — Conditional Legacy. — In French v. French, 14 W. Va. 499, the court, after quoting in full the first two headnotes of the principal case, said: “It seems that it is now an established principle, that while a person may make a conditional will, his intention to do so must appear clearly. ”
      See also, the principal case approved in Cody v. Conly, 27 Gratt. 322.
    
    
      
      Same-Parol Evidence—In French v. French, 14 W. Va. 507, the court, citing as authority the principal case, said: “Parol declarations of the testator cannot be admitted to control the construction of a will, except when the terms used in the will apply indifferently without ambiguity to each ot several different sub: ects or persons, when evidence may be received as to which of the sub: ects or persons so described was intended by the testator.” See also, Wootton v. Redd, 12 Gratt. 196.
      See Young v. Cabell, 27 Gratt. 761 for the sequel of the principal case.
    
    
      
      Same—“Money Legacies.”—See, as to Demonstrative "Legacies, foot-note to Corbin v. Mills, 19 Gratt. 438.
    
   JOYNES, J.

These are three several appeals in the same case. The bill was filed by D. J. Hartsook, executor- of Mrs. Mary W. Cabell, dec’d, against her legatees and distributees, for the purpose of obtaining the advice and direction of the court, in his administration of the estate, and especially in respect to the construction and effect of certain provisions of the will and codicils of the testatrix. ■ The first two appeals are from the decree *of the District court affirming interlocutory decrees of the Circuit court. The last appeal is from the first decree of the Circuit court. The various questions arising on these appeals will now be disposed of:

I. Mrs. Cabell, after disposing, by her will and two codicils of a large amount of her property, embracing probably the greater part of it, at the close of the second codicil, made the following provision: “In case of a sudden and unexpected death, I give the remainder of my property to be equally divided between my cousin Dr. Carter of Philadelphia, and my cousin Peyton Skipwith of New Orleans, one-half of which, each must hold in trust for the benefit of their children.”

It is contended, on behalf of the next of kin, that the bequest contained in this clause is dependent on the condition of the testatrix dying suddenly and unexpectedly. It is contended, that according to the evidence, she did not die suddenly and unexpectedly, and that, therefore, nothing passed by the bequest.

In cases of this sort, the question to be determined is, whether the contingency is referred to as the reason or occasion for making the disposition, or as the condition upon which the disposition is to become operative. Porter’s case, Eaw Rep. 2 P. & D. 22; Dobson’s case, Eaw Rep. 1 P. & D. 88. These were cases in which the words of contingency had reference to the whole will; but the same principles apply when they have reference only to a particular bequest, as in the present case. In Dob-son’s case, the court said, that a will will not be held to be conditional, unless it is clear that the testator intended that it should operate only in a certain event; and in Porter’s case, the court said, that if the language used by the testator can, by any reasonable interpretation, be construed to mean that he referred to the contingent event as the reason for making the will, then the will is not conditional. In Dob-son’s case, the language was this : 1 ‘In case of any fatal accident ^happening to me, being about to travel by railway, I hereby leave all my property, ’ ’ &c. The court said, that the meaning seemed to be this: “My mind is drawn to the consideration that all railway travelling is attended with danger, and I, therefore, think I had better make my will. ’ ’ It was accordingly held, that the will was not conditional, and it was admitted to probate, although the testator returned unhurt from the travel by railway alluded to in the will.

Mrs. Cabell had disposed of part, and probably the greater part, of her property by her will, and the codicils already made, and she evidently desired and intended to dispose of the residue. The fact, no doubt, was, that she had not fully made up her mind as to the objects, or all the objects, on whom she would bestow the residue, and she seems to have apprehended, that she might be cut off by a sudden and unexpected death, before she would be able to do so. To provide against that contingency, she thought proper to make the disposition contained in the clause in question, which she intended to stand, in case she should make no other. So, in like manner, in a previous codicil, she had said: “I intend hereafter writing another codicil, to dispose of the rest of my property, but in case of a sudden death, I now add to this codicil, ’ ’ &c.

In putting a construction upon the ambiguous language of this clause, we may properly take into consideration the character of the contingency referred to. And when we do so, it seems hardly possible to believe that the testatrix could have intended the bequests in this clause to be contingent, upon her happening to meet a sudden and unexpected death. What is a “sudden death?” What we call the occasion or the cause of death, as a shot, or a blow, or a fall, may be sudden, but how soon must death follow, to give it the character of a “sudden death?” And what is an “unexpected death?” Unexpected to whom? Unexpected *for how long a time? We may well say of a death taking place under certain circumstances, that it was sudden and unexpected; and of a death taking place under certain other circumstances, that it was not sudden and unexpected. But how can we draw the line? It is plainly impossible, in the nature of things, to lay down a rule for determining when a death is sudden and unexpected, and when it is not; and this must have been as obvious to the testatrix as it is to us. And then, what possible motive could she have had to make her bounty dependent on such a condition? She might live many years. Could she have intended, in that event, that it should depend upon the mere manner of her death, whether her legatees should take? Such a purpose would have been whimsical and absurd to the last degree, and inconsistent with all our experience of human motives and feelings.

Upon the whole, it seems clear, that such expressions as those used in this clause, could not properly be construed as creating a condition, unless accompanied by other language, so clear as to admit of no other interpretation. They are not so accompanied in the present case, and without putting the slightest strain upon the language, we can understand it as designed only to express the reason, which led the testatrix to dispose of the residue at that time, and to avoid the risk of further delay.

The bequests, therefore, were absolute and not conditional,. and so the Cicuit court held.

II. The second codicil, containing the residuary clause just considered, is dated, at the beginning, February 28, 1861, and at the end is the date August 18, 1861. On the 27th day of November 1861, the testatrix made a sixth codicil, as follows:

“In consequence of the state of the country, I now revoke my bequests to Dr. Carter and his children, and also to Mrs. Fanny Taylor, her daughter Miss Cornelia *Taylor, and also to Miss Fanny Bewis, all of them residents of Philadelphia.” It is contended on behalf of Dr. Carter and his children, that this revocation is inoperative and void, because made under a mistake. To establish the alleged mistake,-they refer to the testimony of Mr. Hartsook, who says that in a conversation with the testatrix, he suggested to her, for her consideration, that if she had given property to any of her northern friends, it might be confiscated under the sequestration act [of the Confederate States]—that she replied, that she had done so, and would revoke the bequests; and that she subsequently told him that she had revoked the bequests to her northern friends, in consequence of the state of the country. The alleged mistake is, that she supposed that these legacies, if not revoked, would or might be confiscated, whereas, it is insisted, the sequestration act was wholly void in law; and, moreover, did not confiscate the corpus of any property, but only sequestered the profits.

The most that can be made of this evidence is, that the testatrix had been advised by the witness, as his opinion, that the legacies referred to would be liable to confiscation, and that she adopted that opinion by making the revocation. But it is laid down, that if a revocation is made dependent upon the information received by the testator, or upon his belief or opinion, the act will be held valid, notwithstanding he may have been misinformed, or under a misapprehension. 1 Redfield on Wills 358, pi. 25. It is as if she had. said, “I have been advised that these legacies will be liable to confiscation, and, to avoid all risk, I revoke them.” She chose to make the revocation because she had been so advised, but she does not put it on the soundness of the advice, and the revocation cannot be set aside by showing that the advice was unsound. 1 Powell on Devises 527; Atto. Genl. v. Lloyd, 3 Atk. R. 551. Besides, it has not been shown that the testatrix was *under any mistake. The counsel admits that the profits of - the legacies would have been liable to confiscation, or to sequestration, which was practically the same thing: and this may have been just what she apprehended. We ought to presume so, if this was the only sort of confiscation that was lawful or usual. And if she apprehended confiscation of the whole, it has not been shown that the apprehension was unfounded.

But the codicil does not state any fact upon the supposition of whose existence the testatrix proceeded in making this revocation. All that she says is, that she revokes the bequests, “in consequence of the state of the country.” What there was in the state of the country that caused her to do so, or what she thought or feared in regard to the state of the country, does not appear on the face of the will. In the cases cited by counsel, the fact which the testator assumed to exist, and the assumed existence of which induced the revocation, appeared on the face of the will. But here we are asked to go outside of the will, and to ascertain from paro'l evidence what were the particular views and opinions of the testatrix, so as to lay the foundation for a case of mistake. No case has been found in which this has been allowed, and to allow it would violate fundamental principles.

The Circuit court, therefore, was right in holding, that the revocation was. valid and effectual. .

III. The next question is, what became of the half of the residuum, the bequest of which was thus revoked? The next of kin claim, that it passed to them as undisposed of; which was the view held by the Circuit court; while Skipwith claims, that the effect of the revocation was to make the whole residuum pass to him and his children.

The claim of Skipwith has been maintained on two grounds, one of which is, that the original bequest of *the residue was to a class, composed of the children of Carter and the children of Skipwith. The short answer to this is, that the bequest was not to the children of Carter and the children of Skipwith, jointly and collectively, but to the children of Carter and the children of Skipwith, as separate families, each family taking one-half; in other words, the bequest was not to one class, but to two classes.

But the ground mainly relied upon is, that, in'consequence of the revocation, the will must be read as if the revoked bequest, and'everything relating to it, were struck out, or had never been inserted; the effect of which, it is said, will be, that the whole residuum is still disposed of, and that Skip-with and his children are the only persons to whom it is given.

It is clear that under the terms of the residuary clause, Dr. Carter and Mr. Skip-with, as trustees for their children respectively, took the residuum as tenants in common. Each took a moiety, and a moiety only.' If, therefore, -the words importing a bequest to the Carters, be considered as struck out, there will remain only a bequest of a moiety to the Slcipwiths. And it is a well settled doctrine in England, that where there is a devise or bequest of a residue to several as tenants in common, and a revocation by codicil of the devise or bequest of one of the shares, that share does not fall into the residuum and pass under the will, to the other devisees or legatees, but becomes undisposed of, and goes under the law to the heir at law, in case of real estate, and to the next of kin [distributees], in case of personal estate. The reason is, that each tenant in common took only his several share, by the original gift, since tenants in common do not, like joint tenants, take per my et per tout, and there being no new gift by the codicil of the share revoked from one of them, the others can take no greater share than they had by the original will.

*The leading case on this subject, is Cresswell v. Cheslyn, 2 Eden R. 123, decided by Bord Northington in 1761, whose decision was affirmed by the House of Rords. There is a note to that case by Serjeant Hill, in which he questions the correctness of the decision upon the same ground as that mainly relied upon in the present case. That case, however, has always been followed, and its doctrine is firmly established in England. The latest case is Sykes v. Sykes, decided at the Rolls in 1867, Raw R. 4 Eq- 200 and by the Rord Chancellor on appeal in 1868, Raw R. 3 Ch. App. 301. The Master of the Rolls said, that Cresswell v. Cheslyn had been considered an authoritjT for more than one hundred years, and that he did not know a single case in which its authority had been doubted. See, also, the following cases, in which the doctrine of Cresswell v. Cheslyn was recognized and approved. Skrymsher v. Northcote, 1 Swanst. R. 566; Shaw v. McMahon, 4 Dr. & War. R. 431; Harris v. Davis, 1 Coll. R. 416; Clark v. Phillips, 21 Eng. R. & Eq. R. 122; Ramsey v. Shelmerdine, Law Rep. 1 Eq. 129. In Humphrey v. Taylor, Ambl. R. 136, cited by the counsel for Skip-with, the legatees took as joint tenants, and not as tenants in common; and that was the ground of the decision. Cresswell v. Cheslyn has likewise been approved and followed in this country. Brownell v. De Wolf, 3 Mason R. 486; Floyd v. Barker & al., 1 Paige R. 480.

IV. By the first clause of her will the testatrix bequeathed as follows :

“Of the ten thousand and fifty dollars which I received from my uncle Eitzhugh Carter’s estate, I give and bequeath two thousand dollars of it to Mrs. Hill Carter of Shirley, two thousand dollars of it to Mrs. Mary Cabell Irvine, two thousand dollars of it to my cousin Mrs. Eanny Young, one thousand dollars of it to my friend Miss Rucy Claiborne, one thousand dollars of it to Mrs. Margaret Brown, daughter of Mrs. ^McClelland, one thousand and fifty dollars to my friend Mrs. Eanny Taylor of Philadelphia, and one thousand dollars of it to my cousin Miss Randonia Randolph. I give the sums mentioned above to Gen’l Cocke, in trust for the sole and separate use of the ladies, whose names are mentioned.”

It appears from the evidence, that, at the death of the husband of Mrs. Cabell, he had standing in his name S10,050 of bonds of the State of Virginia, which he had purchased with money derived from the estate of Wm. Eitzhugh Carter; that he regarded these bonds as belonging to his wife, and they were accordingly transferred to her by his executor; that in a book kept by Mrs. Cabell, and containing a list of all her stocks and public bonds, the said bonds were entered under the head of “State bonds transferred by J. C. Cabell’s ex’or to Mars' W. Cabell, derived from Wm. Eitzhugh Carter’s estate,” and that these bonds were kept by Mrs. Cabell, and were found after her death, wrapped up together in a separate wrapper.

It is contended, on behalf of the next of kin, that the language of this clause of the will must be construed with reference to the facts disclosed by this evidence; and that the effect of it, when so construed, is to give specific legacies of stock, and not legacies of money, as the words, taken literally, import. And so the Circuit court held. The legatees, on the other hand, insist, that the legacies are money legacies, with a fund referred to out of which they are to be paid, though they are to be paid at all events; in other words, that the3T are what are called demonstrative legacies.

It is a well settled rule, that the court will incline against construing a legacy to be specific, and that a legacy will not be held to be specific, unless there appears in the will a clear intention to make it so.

The following language is used in 1 Roper on Regacies 213, *in reference to the class of cases in which the question is, whether a legacy of stock is general or specific. “The intention of the testator to bequeath specifically must not be inferred by conjecture, nor upon a term which is capable of a double intendment, when the form of bequest is general; for a court of equity requires the intention to give specifically, either to be expressed, or to be clearly and indisputably manifested from perusal of the whole will.” Thus, a direction to transfer stock to a legatee will not make the legacy specific, though the testator had such stock at the date of his will. Eor the testator may have meant a transfer of the particular stock he had at the date of the will; or that the executor should purchase stock and transfer it to the legatees. In a case of that sort (Sibley v. Perry, 7 Ves. R. 522), Rord Eldon held, that the legacy was not specific, though he had no doubt, in private, that the testator meant to give the stock which he had; but he said there was no case deciding that a legacy was specific, without something marking the specific thing, the very corpus.

So when the bequest is of stock, the fact that the testator possessed at the date of his will, the precise number of shares bequeathed, will not of itself make the bequest specific. Thus, in Robinson v. Addison, 2 Beav. R. 515, the testator made a bequest of five and a half shares in the Reeds and Riverpool canal, and two other bequests of five shares each ; making fifteen and a half shares in all. At the date of the will, he owned just fifteen and a half of those shares. Rord Rangdale held, that the bequest was not specific, and in giving judgment, said: “In the gift, the testator has used no words of description or reference by which it appears that he meant to give the specific and particular shares which he then had.

Various arguments depending on the general scope and effect of the will, were used for the purpose of *showing, that the testator in giving the precise number of shares which he possessed, must have had those shares in contemplation and none other, and consequently must have meant specific gifts of them. ’ ’ * * * * ¡ ip|. jS; however, clear, the testator, if he had meant to give only the shares which he had, might have designated them as his; that the mere circumstance of the testator having, at the date of the will, a particular property of equal amount to the bequests of the like property which he has given, without designating it as the same, is not a ground upon which the court can conclude that the legacies are specific.” Davis v. Cain, 1 Ired. Eq. R. 45; and Tifft v. Porter, 4 Seld. R. 516, are cases of the same sort. See, also, 2 Wh. & Tud. E. Ca. 241.

In Kirby v. Potter, 4 Ves. R. 748, where the question was, whether the legacy was a specific legacy, of stock, or a legac3r of money payable out of stock, Eord Alvanley held the rule to be, that no legacy should be held to be specific unless demonstrably so intended, and he said, that “whenever there is a legacy of a given sum, there must be positive proof that it does not mean sterling money, in order to make it specific.” In a subsequent case (Deane v. Test, 9 Ves. R. 152), Eord Eldon thoughtEord Alvanle3' had spoken too strongly in saying that nothing less than “positive proof” of intention would be sufficient to overrule the prima facie construction of the words. Eord Eldon held, that where the words import a gift of money, as of a sum of money out of certain stock, the prima facie intention is to give a money legac3r; a settled rule of construction to which it was wholesome to adhere, “until driven out by strong, solid and rational interpretation, put upon plain inference drawn from the rest of the will. ’ ’ He said further, that minute criticism would not vary the prima facie rule of construction. See, also, 1 Roper on Eeg. 219, 220, 227, 234, 235, 240. In Walton v. *Walton, 7 John. Ch. R. 259, Chancellor Kent la3's down the rule in these words: “The courts are so desirous of construing the bequest to be general, that if there be the least opening to imagine, that the testator meant to give a sum of money, and referred to a particular fund only as that out of which he meant it to be paid, it shall be construed pecuniary, so that the legacy may not be defeated by the destruction of the seciirity. ”

In construing a will, the enquiry is, not what the testator- meant to express, but what the words used by him do express; and, as was said by Sir William Grant in Attorney General v. Grote, 3 Mer. R. 316, “to authorize a departure from the words of a will, it is not enough to doubt whether they were used in the sense which they properly bear. The court ought to be quite satisfied that they were used in a different sense, and ought to be able distinctly to say, what the .sense is in which the3r were meant to be used.” And, as was said by Eord Eldon in the same case (2 Rus. & Myl. R. 699), “individual belief ought not to govern the case; it must be judicial persuasion.” As a general rule, the question whether a legacy is general or specific, is to be determined upon the face of the will. Innes v. Jolmson, 4 Ves. R. 568.- And though it has been held, that where a testator has described the subject of the bequest-in ambiguous terms, evidence of the state and value of the property may be received, in aid of the construction, to determine whether a legacy is general or specific; Boys v. Williams, 2 Rus. & Myl. R. 689; Attorney General v. Grote, Ib. 699; it is not admissible to alter the meaning of the words employed, when the meaning is plain, or to supply a reference to a particular subject or corpus, when none is imported by the language of the will. Parol evidence is always admissible to ascertain the thing actually described, but it is not admissible to show that the testator intended, by his will, to refer to a thing which the will does not describe. Pell v. Ball, 1 Speers’ Eq. R. 48.

* Applying these rules to the clause under consideration, it seems to be clear, that the bequests contained in it cannot be regarded as specific. There is no mention of stock or bonds. The subjects of the several bequests are described as so many dollars; in the latter part of the clause they are referred to as “the sums mentioned.” In the beginning of the clause, the aggregate subject is spoken of as so many dollars, the amount being equal to the sum of all the several legacies. It is only by going out of the will that we find an argument in favor of holding the legacies to be specific; it is only by going out of the will that we find that it was stock and not money that came to the testatrix from the estate of her uncle Eitzhugh Carter. And even if we consider the evidence relied upon, it is by no means conclusive. The testatrix may have chosen to consider, that she had received ten thousand and fifty dollars in value from her uncle Eitzhugh Carter’s estate, and to give that amount, in money, to those among whom she divided what came from that source. The fact that the identical bonds derived from Eitzhugh Carter’s estate were kept by her in a separate wrapper, apart from her other bonds and stocks, indicates nothing decisive, if indeed it can be said to indicate anything at all to the purpose. The most that can be said of all this evidence is, that it affords a conjecture, that the testatrix intended by this clause to give stock and not money. But, as we have seen, no conjecture, however strong and plausible, will be sufficient to overrule the prima facie construction of the language.

The Circuit court, therefore, erred in holding these legacies to be specific legacies of stock. They are money legacies, but whether general or demonstrative, it is not necessar3' to decide, as the estate is ample to satisfy them, so that the question whether a special fund is appropriated to their satisfaction is unimportant.

*V. By another clause of the will, the testatrix bequeathed “my guaranteed bonds of the James River and Kanawha Company,” to the unmarried daughters of Carter Braxton and Dr. Corbin Braxton. At the date of the will, she owned certain bonds of the James River and Kanawha Company, the payment of which was guaranteed by the State of Virginia, which amounted, in the aggregate, to $7,600. In the 3'ear 1860, an act was passed by the legislature of Virginia which provided, among other things, that such of the holders of guaranteed bonds of the James River and Kanawha Company, as should surrender them, should receive, in lieu thereof, bonds of corresponding amount of the State of Virginia. Sess. Acts 1859-60, p. , sec. 4. In pursuance of this act, Mrs. Cabell surrendered the bonds of the James River and Kanawha Company held by her, and received in lieu of them, a corresponding amount of bonds of the State, which she held at the time of her death. It is contended, on the part of the legatees in this clause, that, by the conversion of the bonds, the legacies were adeemed, and that they are entitled to receive money to the nominal amount of the bonds, under a subsequent clause of the will; and so the Circuit court held. The clause referred to is in these words: “I have specified in several instances, exactly what different stocks is to be given to different persons, but in case changes may be made in the location of my stock, I wish it distinctly understood, that out of my general property, those same persons are to receive the sums of money specified as given to them. ” It is contended, on behalf of those who take the residuum, that there was no ademption, and that the legatees of the guaranteed bonds are entitled to the State bonds into which they were converted, and have, therefore, no claim to receive monej", under the provision referred to. i 1

The general rule in regard to specific legacies is, that ^the claim of the legatee will be defeated, if the thing specifically bequeathed to him is not in existence at the time of the testator’s death; in that case, the legacy is said to be adeemed. And it seems to be the better opinion, and is now the established rule in England, that ademption depends on a rule of law, and not upon the intention of the testator. 1 Roper on Leg. 329, et seq. ; 2 White & Tudor Lead. Cases, notes to Ashburner v. Macguire.

The word ademption, as applied to specific legacies of stock, or of money, or of securities for mone3T, must be considered as synonomous with extinction or annihilation. Where stock specifically bequeathed has been sold by the testator, or where a debt specifically bequeathed has been received by the testator, the subject of the bequest is extinguished or annihilated; nothing exists upon which the will can operate, and the legacy is adeemed and gone. But “where the thing specifically given has been changed in name and form only, and is in existence, substantially the same, though in a different shape, at the time of the testator’s death, it will not be considered as adeemed by such nominal change. ” This is the language of the English annotators upon Ashburner v. Macguire, 2 Wh. & Tud. 249. It may be illustrated by the following cases. . . . ■ : ' . : s : L ■ ■ :

In Dingwell v. Askew, 1 Cox Eq. R. 427, stock standing in the name of trustees for the testatrix, was specifically bequeathed, and the testatrix subsequently took a transfer of the stock from the trustees into her own name. This was held not to be an ademption of the bequest. In Roper it is said, that this case is an authority, that the transfer of a fund specifically bequeathed, into the names of new trustees, will not affect a specific bequest. And the author supposes the case of trustees authorized b3T deed or will to change securities, with the concurrence of A., the person who was empowered to dispose, and had disposed, by will, *of the fund then in stock, and they, with his consent, sold the stock specifically bequeathed, and invested the proceeds upon a mortgage; and rie expresses the opinion, that, in such a case, there would ’be no ademption. In Blackwell v. Child, Ambl. R. 260, Child, the testator, who was a partner, under articles providing for a renewal of the partnership, bequeathed specifically his share, described as nine-twelfths of the profits of the partnership. After the date of the will, the articles of partnership expired, and the partners, about a year later, entered into new articles, in which the shares were divided into twenty-four parts, fourteen of which belonged to Child. It was held by Lord Hardwicke, that though the interest of the testator was varied, there was no ademption. In Ashburner v. Macguire, 2 Bro. C. C. 108, the testator bequeathed specifically to A., for life, the interest of a bond due him, and, after the death of A., bequeathed the principal of the bond to her children. After the date of the will, the debtor became bankrupt, and the testator proved his debt under the commission, and received a dividend upon it. It was held by Lord Thurlow, that the legacy was not adeemed, except to the extent of the dividend received out of the bankrupt’s estate by the testator, and he decreed that the bond should be delivered to the legatees. In Oakes v. Oakes, 15 Eng. L. & Eq. R. 193; S. C. 9 Hare R. 666, the testator was possessed, at the date of his will, of certain shares of the Great Western Railway Company, which he bequeathed specifically. Subsequently these shares were, by a resolution of the company, under authority of an Act of Parliament, converted into consolidated stock. It was held by Vice Chancellor Turner, that there was no ademption. He said: “The testator had this property at the time he made his will, and it has since been changed, in name and form only. The question is, whether a testator has, at the time of his death, the *same thing existing, it ma3’ be in a different shape, yet substantially the same thing.” He added, that he thought the case was stronger in favor of the construction he adopted, because it was not shown that the testator, in any respect concurred in the conversion of the shares into stock. It will be observed, however, that this circumstance was not the ground of the decision. In Walton v. Walton, 7 John. Ch. R. 259, there was a specific bequest of thirty shares of the stock of the Bank of the United States. After the date of the will, the charter of the bank expired, and its assets were conveyed to trustees, who divided them among the stockholders, from time to time, as they were received.

The testator received dividends on his shares, but never disposed of them. It was held by Chancellor Kent, that, though the fund was varied and differently- arranged, and was diminished in value by operation of law, it was not destroyed, nor its identity lost, and that there was, therefore, no ademption. In Ford v. Ford, 3 Foster R. 312, the testator, by a codicil, bequeathed to his wife all notes of hand payable to him at the date of the codicil, which was held to be a specific bequest. At the date of the codicil, the testator held four promissory notes signed by Samuel S. Hill and' his brother. Subsequently, during the life of the testator, these notes were taken up, the brother of Samuel S. Hill was released at his own request, and four other notes, signed by Samuel S. Hill alone and secured by- mortgage, were given in their stead. The court, after a discussion of numerous authorities, said: “Where the identity of the debt is not lost, where it still preserves its form substantially, as at the date of the will, where there has been no payment of it, hut only a change of the security for it, there seems to be no reason for considering it adeemed. ” ***** “in the present case, the debt existing at the date of the codicil has not been paid by the substitution of the new notes and the mortgage *for the original notes. Its identity has not been lost, and nothing has been accepted in satisfaction of it. There was merely a change of the security and of the evidence of the debt from joint and several notes, to notes secured by mortgage. ” It was accordingly held that there was no ademption. In Anthony v. Smith, Busbee Eq. R. 188, a testator bequeathed to his debtor the bond which constituted the debt. After the date of the will, the testator, for the convenience of other creditors of the debtor who desired a new deed of trust to be executed, took from him a new bond, adding to the principal the interest that had accrued. The Court held, that there was no ademption. It said: “Did the subsequent transactions between the parties destroy the debt, or so change it that it could not be known to be the same? If it had been collected by the testator, there is no doubt that the debt would be lost; but, instead of being collected, it was only renewed, and renewed only because other creditors of the plaintiff desired a new deed of trust to be executed. It was the same debt, principal and interest, secured by a new note. The new security does not annihilate, but preserves the substance of the thing given, to wit, the debt. Such certainly appears to be the opinion of Eord Hardwicke when he said, in the case of Blackwell v. Child, “I think it is a specific legacy of quantity, bequeathed out of a certain body, and if the body be subsisting at the death of the testator, the debt shall be paid out of it. It was said to be like' the novation of a debt, which does not destroy the legacy of the debt.” In Gardner & als. v. Printup, 2 Barb. S. C. R. 83, the testator made a bequest which was held to be specific, of the proceeds of a bond and mortgage which he held against Briggs and Schenck. The bond was for $8,000, payable in six annual instalments, with interest. Proceedings having been commenced to collect the debt, the mortgagors sold part of the land embraced in the mortgage to one *Yost, for $5,000, of which $1,700 was paid to the testator, and the balance of $3,300 was secured by the bond of Yost and another party, executed directly to the testator, and endorsed as a payment on the mortgage. As between the testator, and the mortgagors, this bond was understood tobe an absolute payment of the amount of it; but the lien of the mortgage upon the part of the land bought by Yost, was not released, being retained to secure the payment of the bond. The court held, that the money due upon Yost’s bond passed to the specific leg'atee as part of the legacy.

In Stout v. Hart, 2 Halsted (Law) R. 418, the testator made a specific bequest of a bond of Peter Phillips and John Phillips, the latter being a surety. After the date of the will, at the request of John Phillips and for his accommodation, and to enable him to secure and indemnify- himself as surety, the testator accepted from him a new bond, executed by John Titus as principal, and said John Phillips as surety, and gave up the old bond.

Subsequently, Peter Phillips, administrator and John Phillips, by an arrangement between them, ascertained the respective shares of the debt which Peter Phillips and John Phillips ought to pay. The administrators executed their bond to the testator for the share of Peter Phillips, and John Phillips and John Titus executed their bond for the share of John Phillips.

The court held, that the legacy was not adeemed. This decision was, however, made in the year 1801, and the court expressed the opinion, that ademption was wholly a question of intention, which it understood to be the settled doctrine of the English courts at that time. See, also, Doughty v. Stillwell, 1 Bradf. R. 300.

The substantial subject of the bequests in this clause, is the bonds, as evidences of debt, and not as pieces of paper. The substance of the transaction by- which the James River and Kanawha bonds *were converted into State bonds, was merely this, that one of the original parties, whose name was of no value, was released, and the separate obligation of the only solvent party- accepted, in lieu of the oligation of both. The debt due upon the guaranteed bonds has never been paid, and so the real subject of the bequest has never been extinguished. The State bonds are only a substituted security for the same debt, and the principle is the same as if the James River and Kanawha bonds had been renewed, without the guaranty of the State, and either with or without other security. The subject is now known by another name, but it is not necessary that the subject shall continue the same in name, provided it continues the same in substance.

The result is, that the subject of the bequests in this case has, in the language quoted from White & Titdor, and by them adopted from Vice Chancellor Turner, been “changed in name and form only, and is in existence substantially the same, though in different shape,” and that there has, therefore, been no ademption, and the legatees of the guaranteed bonds, therefore, take the State bonds which were substituted for them. The clause of the will above quoted applies to the case of such “a change in the location of stock” as to amount to an ademption, so that, but for that clause, the legatee would get nothing.

VI. At April term 1863, the Circuit court of Kelson gave authority to the executor to invest the funds in his hands, in registered bonds of the Confederate States, or of the State of Virginia. In pursuance of this authority, the validity of which has not been controverted, he invested $47,600 in Confederate bonds, and, of course, the amount has been lost. The Circuit court held, that this loss is chargeable to the estate, so as to throw half the loss on the Skipwiths. The Skipwiths complain of this, and say, that this investment *was not made for them; that they were ready to receive, and did receive, what was offered to them; and that it was not their fault, that the next of kin, who were entitled to the other half of the residuum, were not forthcoming, or did not or could obtain their share.

There is no foundation for this complaint. It was not the fault of the next of kin, that they did not receive any part of the Confederate money in the hands of the executor. It was never offered to them. What remained in the hands of the executor belonged to the estate, and its loss vras the loss of the estate.

VII. Skipwith received, at different times, from the executor, in Confederate money, the sum of $73,910, on account of the half of the residuum to which ' he was entitled, as trustee for his children. The Circuit court held, that in the division now to be made, this sum must be charged at its actual value in the present currency, estimated at $17,239 76. The next of kin insist, that it should be charged at its full nominal amount, and, in support of this position, they allege that Skipwith is to blame for their receiving nothing, and seem to intimate that there was something like collusion between him and the executor.

If this claim should be allowed, the result would be, that the next of kin, in the division of good money now to be made, would receive $73,910 before Skipwith would receive anything, though what Skipwith has heretofore received was only equivalent to $17,239 76 in good money. In other words, the next of kin would get $73,910 of good money, as the equivalent of Skipwith’s $73,910 of Confederate money, or $73,910 as the equivalent of $17,239 76; thus giving them, in round numbers, $56,000 more than he gets, though he is entitled to just the same as they are. This would be gross injustice. There is no evidence of any collusion between Skipwith and the executor. Skipwith '^received, and had a right to receive, what he could get in Confederate money, but it was no fault of his that the next of kin got nothing. They got nothing, because the names of most of them and the proportions in which they were entitled, were unknown. And there is no evidence that any of those who were known, made an effort to get a part of the Confederate money.

As to the suggestion that Skipwith may have invested the Confederate money to advantage, and realized from it more than its value in the present currency, there is nothing in the record to show that he probably did so. There was no such suggestion made, and no enquiry on the subject was asked in the Circuit court. The suggestion comes too late.

VIII. By the second clause of her will, the testatrix bequeathed to Smyth Lee, one-half the “Virginia stock” she might own at the time of her death. The Circuit court held, that this was a general or fluctuating legacy, and that it must be taken in subordination to the legacies in the first clause, which were held to be specific legacies of State stock.

It has already been held that the legacies in the first clause are money legacies and not specific legacies of stock; so that the particular ground of this decision fails. The bequest to Smyth Lee, however, is not of one-half of each State bond of which the testatrix might be possessed at her death, but of the half of the aggregate of all the bonds of which she might be then possessed. It would seem to follow, therefore, that in ascertaining what is the amount or quantity of this half we must embrace all in the computation, though part may be specifically bequeathed. But that is unimportant, for there is no specific bequest of State bonds in the will. The State bonds which were taken in place of the guaranteed bonds, pass to the specific legatees of those latter bonds. But these State bonds are thus regarded as being still, in effect, guaranteed *bonds. They ought not, therefore, to be counted as State bonds in computing what Smyth Lee is entitled to.

It is further insisted, on behalf of Smyth Lee, that the Circuit court erred in holding that $34,000 of State stock, which it is said had been loaned to, or deposited with, the Howardsville Bank by the testatrix, should not be embraced in computing the amount or quantity of such stock held by her at her death. This, of course, depends upon the question, whether that stock belonged to the testatrix at her death. The evidence is, that Mr. Hartsook, who was the agent of the testatrix, and cashier of the Howardsville Bank, made use of her money, with her consent, in purchasing State stock, which was transferred by the sellers to the bank, and deposited by it with the treasurer of the State to secure its circulation. This was done under an agreement with the testatrix, that the bank should pay the taxes on the stock, and pay to her the whole of the interest upon it, and ■ that when she should require it, the bank should redeem the stock and deliver it to her, or deliver her an equal amount of-like stock.

It appears from this evidence that there was no loan or deposit of stock by the testatrix. The stock was bought with her money, but it was not bought in her name, nor for her, and never belonged to her. She had, according to the terms of the contract, a right to demand from the bank an amount of stock equal to what was bought with her money,'and if the bank failed to comply with this demand, she had her remedy in damages. But it was nothing more than a loan of money, with a special agreement as to the manner in which the loan should be repaid. It is clear, therefore, that the Circuit court was right in refusing to give to Smyth Bee any part of this claim against the Howardsville Bank.

The decrees appealed from must therefore be reversed, and the cause remanded.

*The decree is as follows:

The court is of opinion, for reasons stated in writing and filed with the record,

1. That the legacies bequeathed to Mrs. Hill Carter of Shiríey, and others, in the first clause in the will of Mary W. Cabell, dec’d, are legacies of money, and not specific legacies of State bonds or stock, as held by the said Circuit court, and the said District court; but whether the said legacies are general or demonstrative, it is not necessary to decide, inasmuch as the estate is ample to satisfy the said legacies; so that it is not important to enquire whether a particular fund is appropriated to their satisfaction.

2. That under the bequest in the second clause of said will, Smyth Bee is entitled to an amount or quantity of bonds of the State of Virginia, out of those left by the testatrix, equal to the half of the whole amount of such bonds belonging to the testatrix at the time of her death; and that in ascertaining the whole amount of said bonds, to one-half of which amount the said Smyth Bee is entitled, all the bonds of the State of Virginia belonging to the testatrix at the time of her death, are to be taken into the estimate, except the $7,600 of State bonds received by the testatrix in the place and stead of the guaranteed bonds of the James River and Kanawha Canal Company, and that those bonds-should not be so embraced.

3. That the bequests of guaranteed bonds of the James River and Kanawha Canal Company. to the unmarried daughters of Carter Braxton and Corbin Braxton are specific legacies; and that the same were not adeemed by the surrender by the testatrix to the State of Virginia of the said James River and Kanawha Canal Company’s bonds and the acceptance by her, in lieu thereof, of bonds of equal amount of the State of Virginia, and that the said legatees are therefore, entitled to the said State bonds in the place and stead of said *canal bonds; and that they are not entitled to receive the nominal amount of such bonds in money, as held by the said Circuit court and by the said District court.

The court is, therefore, of opinion, that the said decrees of the said Circuit court and the said decree of the said District court are erroneous in the several particulars hereinbefore set forth, and that there is no other error therein.

Therefore it is adjudged, ordered and decreed, that the said decree of the said District court, and the said decree of the said Circuit court rendered May 8, 1868, be and the same are hereby reversed and annulled, so far as the same are hereinbefore declared to be erroneous, and that they be affirmed in all other respects. And this court proceeding to render such decree as the said District court ought to have rendered, it is further ordered that the said decrees of the said Circuit court from which the appeal was taken to the said District court, be reversed and annulled, so far as the same are inconsistent with the principles of this decree ; and that the same be in all other respects, affirmed. And the cause is remanded to the said Circuit court to be further proceeded in, in conformity to this decree.

And the court doth further adjudge and order that the appellants in each of these appeals pay to the appellees their costs by them expended in the defence of said appeals ■ respectively; which is ordered to be certified to the said Circuit court.

On motion of the counsel of C. C. Bee and others, next of kin of M. W. Cabell, dec’d, it is ordered that nothing in this decree shall prevent the said next of kin or any other party interested from asserting by proper proceedings any claim they may be advised to assert against D. J. Hartsook executor of M. W. Cabell, *dec’d, on account of his transactions as such executor.

Decree reversed in part, and affirmed in part.  