
    *Lewis & als. v. Overby’s Adm’r & als.
    March Term, 1879,
    Richmond.
    
      X/, about a year before his deatn in 1866, put each of his four children into possession of a parcel of land with the personal property upon it, but did not convey it. About the same time he made his will, and by it gave to each of the children the land and property in his and her possession. By a codicil he states he was the guardian of his children, and requires that each one of them shall execute a receipt for all claims against him as guardian before they shall be entitled to receive their portion under his will. And he directs that if any one of them shall refuse so to do, his or her portion shall be sold and the proceeds held to meet the liability, and the balance paid over to those executing the receipt. These children held the lands so in their possession, each of them selling a part of that given to him or her prior to 1873. In 1873 a judgment was recovered by B’s administrator against the executors of b upon a bond on which he was surety, and in 1877 a bill was filed by said administrator against the executors and devisees of b to have payment. The executors had been assured by b that he owed no debts, and was under no liability, and neither they nor the other children had ever heard of this debt until the suit was brought in April, 1873 — Held:
    X. Construction of Statute-Gifts. — That neither under the act of E putting them in possession of the land, nor under the devise to them, are the devisees entitled to the protection of the statute, Code of 1873, ch. 146, § 16, p. 1001, which provides that no gift, &c., which is not in consideration deemed valuable in law, shall be avoided either in whole or in part, for tnat cause only, unless within five years after it is made suit be brought for that purpose, &c.
    
      2. Equitable Estoppel. — The devisees having continued to hold tne land from the time they were put in possession, and having sold parts of it, they are estopped from setting up a claim to a settlement *of I/s guardian accounts, and holding him liable to them as their guardian, though they did not execute a release of their claim.
    3. Debts of Decedeiit — Ijiability of Kx-ecutors. — The executors having been assured by 1, that he owed no debts, and they knowing of none, they will not be liable for the value of the personal property that b had in his lifetime pul into the possession of his children.
    4. Same — Same—Refunding Bonds. — The executors having distributed the personal property of b in his possession at his death, without taking a refunding bond, they are responsible to the creditor for its value, though they knew of no debt due from b•
    
    5. Equity — Subjecting Devisees for Debts of Decedent — All the parties being before the court, the executors are entitled to have the devisees to whom they paid over the proceeds of the personal property, subjected in the first place to pay the amount to the creditor.
    6. Debts of Decedent — Apportionment.-— The court should subject each devisee for his proportion of the debt, according to the value of the land devised to him or her, and direct a sale of his or her land not sold in the first instance for the payment of his or her proportion of the debt. If the land still held by one of them does not discharge his or her proportion of the debt, the balance remaining unpaid should be apportioned in like manner among the others, and the land of each sold to pay his or her proportion thereof, and so on until the whole debt is paid or the whole land sold.
    The bill in this case as filed in August, 1877, in the circuit court of Mecklenburg county, by John A. Coke, administrator with the will annexed of R. Y. Overby, deceased, suing for the benefit of himself and all other creditors of John Lewis, deceased, who shall come in and contribute to the costs of the suit.
    The complainant charged in the said bill that the said John Lewis died in 1866, after making his will, which was admitted to probate by the county court of said county on the 19th day of November, 1866; on which day John T. Lewis and R. B. Lewis, the executors therein named, qualified as such, and executed a bond in a penalty of $50,000, conditioned for the faithful performance *of their duties under said will; that by said will the testator divided the whole of his estate, real and personal, after paying his debts, amongst his three sons, John T. Lewis. R. B. Lewis and L. L. Lewis, his daughter Dannie A., the wife of W. T. Boyd, and his granddaughter, Mary Eliza Marshall.
    The complainant then set out in said bill a description of the different tracts of land devised by the testator to his said three sons and daughter respectively, stating that he bequeathed to each of them “also certain articles of personal property;” and stated that “to his granddaughter, Mary Eliza Marshall, he gave all his interest in .a certain gold mine in Granville county, North Carolina, and five shares of the Roanoke Valley Railroad stock.”
    The complainant then charged “that said devises and bequests were made by the testator on the express condition that the said devisees shall release to his estate all demands or claims which they held against it by reason of having been their guardian; that each of them immediately after testator’s death received, and have continued to hold and enjoy, the estate devised to them respectively by said testator, and have virtuálly, if not formally, released said estate from all demands by reason of the guardianship aforesaid.”
    The complainant then charged that the said devisees, or most of them, had, at different times, sold and conveyed to others large portions of the land devised to them respectively as aforesaid, and set out the quantities so sold and conveyed, and to what persons and at what times respectively —the times being during the years 1870, 1871, 1873. 1873, 1874, 1875 and 1876, but the greater part having been so sold and conveyed before 1873.
    The complainant then charged that on the 33d of November, 1873, he obtained a judgment on the law side of said court against the said executors of John Lewis, *on a bond executed by Jas. E. Haskins and said John Lewis for $1,800, with interest thereon from 1st April, 1853, and cost of suit; which judgment was, on appeal to this court, affirmed on the 1st of May, 1877; that execution had been issued on said judgment returnable to August rules, 1S77, against said executors, and returned not satisfied; that said Haskins had long since been adjudicated a bankrupt, and on the 30th of July 1874, received his discharge in bankruptcy, on the payment of all debts provable against hiin, and is therefore not liable to the payment of this debt; that besides the real estate of which the testator died seized, he left a large and valuable, personal estate of the value of $4,000 or more; that by virtue of the qualification of said executors they became possessed of said personal estate, and ’it was their duty to apply the same to the payment of testator’s debts, in due course of administration; that said executors have never returned, as required by law, an inventory of the estate that came or ought to Jiave come to their hands as such; nor any account of sales of the, personal estate of their testator; nor have they ever settled any account of their transactions as such executors; nor have they applied the said personal estate to the payment of the debts of the testator, among them the judgment aforesaid; but have wasted the same.
    The complainant therefore prayed that the said John T. Lewis and R. B. Lewis, in their own right and as executors of John Lewis, deceased, and the other devisees and legatees of said John Lewis, naming them, and certain other persons by name, interested in the subject of the suit, might be made defendants thereto; that certain accounts might be taken; that the testator’s personal estate might be applied in a due course of administration; and should it be insufficient for the payment of the testator’s debts, that the real estate of which he died seized and possessed, and which was devised by his will, might be *decreed to be sold for such payment, and for general relief.
    Copies of the will of said John Lewis dated the 37th of January, 1866, his codicil dated the 30th of June, 1866, and the certificate of probate of both, dated November 19th, 1866, were filed as exhibits with the said_ bill. In his will, after making specific devises and bequests of all his land and most of his personal estate among his children, he directs any surplus, &c., to be sold and divided by his executors, and concludes it in these words: “but if they prefer it, they may divide all the surplus between my four children equally after paying my debts, if any can be found against me.” His codicil is to the following effect:
    “In addition to this my last will and testament, I a'dd the following, to-wit:
    “Whereas I have acted as guardian of my four children. John, Richard, Fannie and Len, and the property received for them from the estate of their sister, Lucy L. Hodge, deceased, being principally negroes, and they mostly in families that were a tax instead of a profit, and all the money received by me from said estate having been' expended upon their education, I do now, in order that questions of the liability of my estate may be known on my decease, require that each one of my children shall execute a. receipt for all claims against me as guardian before they shall be entitled to receive their portion under this will.
    “In case of the refusal of either of them so to do, then his or her proportion shall be sold by my executors and the proceeds held to meet any liability of my estate, and on full settlement of the same the balance to be equally divided between those executing the required receipt.
    “In addition to what has been devised to my daughter Fannie in this will, I require my executors to pay *her out of the sale of any surplus of my estate after my death the sum of $1,000, in what may be at the time the circulating currency ■of the country.
    1 “In witness whereof,” &c.
    There were also filed as exhibits with the said bill' copies of the judgment in favor of said Overby’s administrator against said Lewis’s executors in said bill mentioned, dated June 5th, 1877, of the executions issued thereon, and return of “no effects found” endorsed on said execution.
    On the 4th of October, 1877, the cause came on in vacation to be heard upon the bill taken for confessed and exhibits filed; in consideration whereof the court decreed that one of its commissioners should settle and report to the court. — -1st, an account of the property, real and personal, of which said John Lewis died seized and possessed, showing what disposition had been made of it, by whom and when; 3d, an account of the transactions of the said Lewis’s executors; and 3d, an account of the outstanding debts of his estate, with their priorities, if any.
    On the 13th of November, 1877, the report of Commissioner Baskerville, made under the said decree, was returned and filed. It contains two statements, A and B. Statement A showing what real estate John Lewis died seized and possessed of. and what disposition had been made of the same, and by whom and at what dates. From which it appeared that the testator died seized and possessed of 3,470 acres of land, ■which he devised in different parcels to his four children; 1,283 acres of which had been since sold and conveyed by some of them at different times to different purchasers. Statement B showing account of outstanding debts against the estate of said testator es- j tablished before the commissioner, be- ; ing only the *claim asserted in the bill, ¡ amounting,' with interest to 25th No- | vember, 1877, and costs, to $4,959.47. ¡
    On the 27th day of November, 1877, several answers were filed to the said bill; among which were the following:
    1st. The answer of John T. Lewis and R. B. Lewis, executors of John Lewis, deceased; in which, among other things, they say: “that while their testator died entitled to a considerable property, the amount not known by respondents, he died possessed of very little or none. Their testator being quite an old man, some several years previous to his death divided his property, real and personal, amongst, his several children, and put them in possession of the same; and after the qualification of respondents, finding that the testator had already executed his own will, they did not take possession of his personal estate, but allowed the parties, legatees, to continue in possession of the same. Their testator, before his death, having frequently assured respondents that he owed no debts whatever, they did not deem it necessary to go through the regular course of administration, and taking charge of a small amount of personal property which the testator left undisposed of, they divided the same among the legatees, and did not make or keep any account, receipts or vouchers. Believing that no one was interested in fhe estate, they kept no account of anything. Hence, when summoned before Commissioner Baskerville, by a vacation order to render an account of their transactions, never having kept any account, voucher or paper of any character whatever, they were unable to do so from memory.”
    2d. The answer of the said John T. Lewis and R. B. Lewis, as co-heirs of the said John Lewis, in which they refer to and adopt th'e answer of their co-heirs *and co-defendants, W. T. Boyd and wife and L. L- Lewis, as their defence to the said bill.
    3d. The answer of W. T. Boyd and Fannie A., his wife, and L. L- Lewis, heirs of John Lewis, deceased, in which, among other things, they say they are advised “that the complainant ought not to have and maintain his said suit against these respondents, because at the time of the commencement of his suit more than five years had elapsed since the time of the gift or transfer of said property to them by their testator, John Lewis, deceased, the statute law of Virginia providing that no gift, conveyance, transfer, assignment or charge which is not on a consideration deemed valuable in law, shall be avoided for that cause only, either in whole or in part, unless within five years after it is made suit be brought for that purpose; and that in no event and under no circumstances can the real estate which is attempted to be charged with the payment of the complainant’s demand be sold or interfered with in any way until a full account of the personal estate of which said John Lewis died possessed shall have been taken and the same sold and the proceeds applied to the payment of said demand.” They deny that “at any time of the said aliena-tions made by them of the proceeds of the real estate descended to them from said John Lewis anterior to the 18th March, 1873. they had notice of the complainant’s demand or of any other demand against said estate.”
    “But should the court by of opinion that the foregoing defences are not sufficient to bar the complainant from asserting his demand againt them, respondents would state that at the time of the death of the testator, John Lewis, he was indebted to them and their co-heirs in a very large amount as their guardian for moneys and property of various kinds which descended to them from their half-sister, Lucy L. Hodge, deceased,. of which mention is made in the will of the testator; and having had *no notice whatever of the existence of the complainant’s demand prior to March 18th, 1873, if respondents have done anything before that day to prejudice their right to assert their said claim against their late guardian, they are advised that such conduct, being in ignorance of the demand of the complainants, will not in any way bar or affect their right to demand and have satisfied the debt due to them by their late guardian out of his estate.
    Wherefore they pray for a settlement of the said guardianship account and a decree for the balance due thereon, it being a fiduciary debt, having priority, &c.
    4th. The answer of John R. Clack, trustee, in a deed of trust executed to him by R. B. Lewis and wife to secure a debt lo R. F. Clack for $1,000,- dated 29th July, 1871, conveying 700. acres of the land devised to said R. B. Lewis by the said John Lewis; and
    5th. The answer of the said R. F. Clack. The respondents in said two last named answers therein deny notice of the complainant’s demand at the time of the said conveyance or afterwards, until the ,18th day of March, 1873, when the writ issued on said demand bears date, as appears by a copy of said writ exhibited with one of said answers.
    On the 5th of December, 1877, the cause came on to be further heard on the papers formerly read, and their answers, with replication thereto, and the report of Commissioner Baskerville, filed 13th November, 1877, on consideration whereof the court, approving said report-, to which there was no exception, confirmed the same; and was of opinion that the tract of land conveyed to John R. Clack, trustee, to secure the payment of a debt to R. F. Clack, is first liable to the satisfaction of said debt, and that none of the lands conveyed by the devisees prior to 18th March, 1873, are liable to the satisfaction of plaintiff’s demand; and the court was further of opinion *that the statute of limitation of five years, relied upon by defendants, does not apply to legacies and devises; and also that the devisees, having accepted under the will, and held and disposed of the property devised to them, are estopped after so great a lapse •of time fr-om asserting any claim against the testator as their guardian; and the court is further of opinion that the personal estate of the testator is first to be exhausted before subjecting the real estate to the payment of debts; the court therefore decreed that the said executors of John Lewis should render an account of his personal estate before one of the commissioners of the court, and that the said commissioner en-quire and report at what time the devisees of said John Lewis first had knowledge of the existence of the said debt due to the plaintiff. The court also decreed a sale of the land conveyed by deed of trust to secure a debt due by R. B. Lewis to R. F. Clack as aforesaid.
    On the 15th of February, 1878, Commissioner Baskerville made his report in pursuance of the last-mentioned decree, in which is contained an account of the estate of said John Lewis with his said executors, dated January 14, 1867, in which account the estates credited as of that date: By amount received from McKinney & Dupuy, of Richmond, being about the amount of money in their hands as the commission merchants of John Lewis at the time of his death in the fall of 1866, $1,300; amount of sale of a jack, $75; of, a lump of gold, $37.50; value of personal property, being household and kitchen furniture divided among his legatees, $150— $1,562.50.
    Whole amount of personal estate charged to the executors. $1,562 50
    Deduct for' burial expenses, and doctor’s bill, estimated . 100 00
    1867, January 1st, by amount which should have been in the hands of the executors of John Lewis, deceased, as of.this date.. $1,462 50
    *Also statement “A,” showing the amount of personal property _ which was on the farms turned over previous to the death of John Lewis, viz: to R. B. Lewis, $250;. John T. Lewis. $175; Boyd and wife, $400; L. L. Lewis, $400 — $1,265. The commissioner states that of the said amount of $1,462.50 with which the said executors appeared to be chargeable on the 1st day of January, 1867, on account of the personal estate, the sum of $1,000 was paid by them to W. T. Boyd and wife, in accordance with the will of the testator, and the balance equally divided between the testator’s four children; also that he considered the executors not chargeable with the $1,265, or any part of it, the value of the personal property which the testator in his lifetime delivered to his children; also that the dev-isees had knowledge of the debt due by the testator to the plaintiff about the 1st and 2d of April, 1873.
    The commissioner returned with his report the depositions of the devisees, R. B. Lewis, J. T. Lewis, W. T. B-oyd, and L. L. Lewis, which were taken by him in connection with his said report. It is not necessary to state here the substance of their deposi-. tions, as it seems to be embraced in the said report. It appears from them that the dev-isees had possession of the property, real and personal, given them by the will, from the 1st day of January, 1866, the testator having died about the month of November of that year. The executor, John T. Lewis, in answer to a question propounded to him by the commissioner, says: “The reason I made no settlement was because my father told me he did not owe anything in the world, and was not under any obligation to anybody for anything. His property, with the exception of a very small amount, which I will hereafter explain, was divided by my father to us, his children, during his lifetime, and therefore I thought there was no need of having any inventory and ap-praisement. *The personal estate which came into my hands.” &c.; and he then proceeds to give an account of it, which has already been given in the statement of said report hereinbefore made.
    It appears that none of the devisees had any information in regard to the plaintiff’s claim against the testator until an action was brought therefor in 1873 or very shortly before, and that the testator believed at the time of his death that he owed nobody anything. The debt now claimed against his estate is a securityship debt, and if he remembered it at all he no doubt believed that it could and would be certainly paid by the principal debtor, who has no doubt since become insolvent.
    On the 4th of July, 1878, the cause came on again to be heard on the papers formerly read and the last report of Commissioner Baskerville, to which there was no exception; on consideration whereof- the court was of. opinion that the said executors of John Lewis were chargeable .with -the sum of $1,462.50, with interest from .the 1st of January, 1867, of the assets of their testator which came to their hands to be administered, which money is applicable to the payment of complainant’s claim, and accordingly, decreed thepaymentof the same by the said executors to the said complainant on account of his said claim. And the court was further of opinion that the sum of $1,265, the value 'of the personal property mentioned in schedule “A,” of said report, is not assets which should have come to the hands of said executors, and that they are not chargeable therefor as such. And it appearing to the court that said sum of money will be insufficient to discharge the complainant’s judgment, which amounts as of the 25th of November, 1877, to $4,938.47, interest since accrued, and expenses of the suit, and that a sale of the real estate of John Lewis, .deceased, is necessary to satisfy the balance of said judgment, as well as what may remain uncollected *under this decree from said executors, and no objection being shown against such sale, the court accordingly decreed that the real estate of 'said John Lewis remaining unsold by his said devisees on the 18th day of March, 1873, (the date of the institution of the action of the complainant against the said executors,) or so much thereof as may be necessary for the payment of the balance aforesaid of the complainant’s judgment and .the costs and expenses of this suit, should be sold in the manner and on the terms prescribed by the decree by two commissioners 'thereby appointed for the purpose, either . one of whom was authorized to act alone. And in making said sale the commissioners, or the acting commissioner, shall sell such part or parts of said real estate as may be selected for the purpose by said devisees; provided the parcels so selected be sufficient to realize the amount required in this do- ' cree.
    And right is reserved to the complainant, ' should the decree against said executors prove unavailing, in whole or in part, to .apply to the court for a further decree to subject to sale the lauds of said John Lewis to satisfy whatever sum may remain unpaid of the amount decreed ■ the complainant against said executors. But said commis- . sioners, or the-one who may act, is required before acting to give bond with security in . the penalty of $1,500, conditioned according , to law.
    And it appearing to the court that the lands held by R. B. Lewis as devisee of said John Lewis had been sold under a deed of trust executed by the former, pursuant to a decree entered in this court at the November term,' 1877, and that the proceeds of sale are insufficient to pay the trust debt, said lands are excepted from the operation of the decree, and said commissioners will take no action in regard to the same.
    From the two decrees aforesaid, of the 5th day of December, 1877, and the 4th day of July, 1878, the said *J. T. Lewis and Lucy, his wife, R. B. Lewis and Sally M.. his wife, W. T. Boyd and Fanny, his wife, L. L- Lewis and M. E. Marshall, applied to a judge of this court for an appeal; which was accordingly granted.
    Jones & Bouldin, for the appellants.
    John A. Coke, for the appellee.'
    
      
      Devastavit — ¿liability of Personal Representative. — -The rule laid down in the fourth headnote in regard to the liability of personal representatives who distribute the assets of the deceased without taking refunding bonds is sustained in Edmunds v. Scott, 78 Va. 720; Cookus v. Peyton, 1 Gratt. 442; Morrison v. Lavell, 81 Va. 523; Lewis v. Mason, 84 Va. 731. See also 11 Am. & Eng. Enc. Taw (2nd Ed.) 912; McGlaughlin v. McGlaughlin, 43 W. Va. 226.
    
    
      
      Equity-Subjecting for Devisees for Debts of Decedent.- — -On the question involved in the fifth headnote in regard to subjecting the devisees in the first place for the amount due unpaid creditors, see Watts v. Taylor, 80 Va. 626; Improvement Co. v. McGavock, 96 Va. 134. Principal case distinguished in Findlay v. Trigg, 83 Va. 539. See also 11 Am. & Eng. Rnc. Law 1180, and I irginia cases there cited.
    
    
      
       Del*t s of Decedent — Apportionment.—In Ryan v. McLeod, 32 Gratt. 367, the rule laid down in the sixth headnote of the principal case in regard to the manlier of subjecting the devisees for their proportion of the debt due is expressly affirmed. See also Harman v. Oberdorfer, 33 Gratt. 497; Pugh v. Russell, 27 Gratt. 789; Alexander v. Ryrd, 85 Va. 700.
    
   MONCURE, P.,

delivered the opinion of the court. After stating the case he proceeded:

The appellants assign five errors in the decrees appealed from, which assignments will be here stated and disposed of in the order in which they are made.

1. It is contended by the appellants that the lands of John Lewis, deceased, in the hands of his children, to whom he had given them, are protected from liability for the debt claimed in this suit against his estate by the appellee, the personal representative of R. Y. Overby, deceased, by the 16th section of chapter 146 of the Code of 1873, page 1001, which declares that “no gift, conveyance, assignment, transfer or charge, which is not on consideration deemed valuable in law, shall be avoided either in whole or in part, for that cause only, unless within live years after it is made, suit be brought for that purpose, or the subject thereof, or some part of it. be distrained or levied upon, by or at the suit of a creditor, as to whom such gift, conveyance, assignment, transfer or charge is declared to be void by the second section of the 114th chapter.”

To bring this transaction between John Lewis and his children within the operation of this statute, it is insisted: first, that this was a parol gift in the lifetime of the said John Lewis; and second, if this be not true, that the *devise made by John Lewis to his children of the lands is such a gift as is contemplated by this statute.

To support the first of these positions, it is alleged that John Lewis in his lifetime, and shortly before his death, divided his property, or most of it, among his children, and put each in possession of the portion intended for him; and that these children continued to hold this property during his lifetime, a period of less than one year from the date of the alleged gift; and that he died leaving a will, in which he devised to his said children the respective lands and personalty which, they say, were given to them in his lifetime, which will, they contend, is a confirmation of the parol gift.

Tt is not pretended that there was any gift of the said property, or any part of it, from the said father to his children by conveyance or other written instrument made and perfected in his lifetime; or that there is or ever was any other evidence of an}' such gift than the will itself. If such a gift can be established, it can only be by inference from the will itself, in connection with the fact that shortly before the testator’s death he put his children in possession of the property, real and personal, or most of it, which he intended to give to them respectively by his will. He made no contract, and had no understanding with them .on the subject, much less one founded on a valuable consideration, or such a one as a court of equity would enforce. He might, at any time during his life, after the execution of his will, have altered it at his pleasure, in any or every respect. 1 f he had made a parol gift of his lands in his lifetime, it would have been ineffectual under our statute, which decrees that “no estate of inheritance or freehold, or for a term of more than five years, in lands, shall be conveyed unless by deed o,r will.” Code, ch. 112, § 1, p 887. As is truly said in the argument of the learned counsel for the appellees, the authorities are uniform to the effect *that lands cannot pass in Virginia by parol gift, but only by descent, at*verse possession, deed or .will. Clarke v. McClure, 10 Gratt. 315-16. And certainly, under the circumstances which existed in this case, no such equitable rights were acquired by the donees as entitled them to a conveyance of the legal title, on the principle of the cases cited in the said argument from 1 John. C. R. 500; 1 Cow. 733; 1 Hill Chy. 51; 1 Marsh. 87; 4 Bibb, 186. It is no uncommon thing for a father, after making his will, and thereby distributing his estate among his children, to place them in possession of the property so given, or part of it, shortly before his death, without intending thereby to part with his title to it or control over it, or power to dispose of it at his pleasure, during his life or at his death. And such seems to have been the case in this instance. That the two children who qualified as their father’s executors considered the whole estate devised and bequeathed by his will to be his at his death, is shown by their giving a bond as his executors in the penalty of $50,000.

The second position of the appellants under the first assignment of error is, that a will is embraced by the provisions of § 16, ch. 146 of the Code, p. 1001; and they insist that because the appellee did not file his bill to subject these lands within five years after the death of the testator, John' Lewis, that the bar of this statute applies to the claim.

The said provisions of the Code must be construed in connection and pari materia with the second section of chapter 114 of the Code, page 896, which is headed “Voluntary Gifts,” and is in these words:

“3. Every gift, conveyance, assignment, transfer or charge which is not upon consideration deemed valuable in law shall be void as to creditors whose debts shall have been contracted at the time is was made, but shall not, on that account merely, be void as to creditors *whose debts shall have been contracted, or as to purchasers who shall have purchased after it was made; and though it be deemed to be void as to a prior creditor, because voluntary, it shall not, for that cause, be decreed to be void as to subsequent creditors or purchasers.”

The 16th section of ch. 146 of the Code must be construed, as if .it immediately followed in the same chapter, section 3 of chapter 114 aforesaid, as it would have done but for its being considered as more properly belonging to chapter 146, concerning “limitation of suits.” There is a close resemblance in the language of the two sections. Section 3 of ch. 114 commences thus: “Every gift, conveyance, assignment, trartsfer. or charge which is not upon consideration deemed valuable in law shall be void.” &c. Section 16 of ch. 146 commences thus: “No gift, conveyance, assignment, transfer or charge, which is not on consideration deemed valuable in law, shall be avoided,” &c. The two sections were introduced into the Code at the same time, under the same circumstances, and as parts of the same purpose. They were not in the Code of our statute law before the revision of 1849, but made their appearance for the first time in the Code of that year. They were not in the Code of that year as reported by the revisors; but were amendments made thereto by the joint committee of revision, and adopted by the legislature. See the report, pp. 613 and 745; and the said amendments, pp. 141 and 161. About the time of that revision, or shortly before, much controversy existed among our judges and lawyers as to when and how far a deed was void as to creditors of the grantor, merely on the ground of its being voluntary. Hutchinson v. Kelley, 1 Rob. R. *133; Bank of Alexandria v. Patton, Id. 499; Hunters v. Waite, 3 Gratt. 35.

It was to settle this controversy and make the law on the subject plain, that these amendments were made. While they declared “every gift,” &c., void, they required that a suit to avoid such a gift should be brought for that purpose within five years after it was made. They re-lated only to gifts inter vivos, and not to devisees. The whole estate of a deceased debtor, real and personal, is bound for the payment of his debts, whether he die testate or intestate. In the latter case, his heirs-at-law succeed to his real estate,' subject to the payment of his debts. In the former case, his devisees, to the extent to which he may have devised his real estate, can only take it subject to the payment of the claims of his creditors, to the extent to which a sale of the land devised may be necessary for such payment. A debtor cannot, by his will, impair the rightful claims of his creditors against his estate.

The court is, therefore, of opinion that the said, first assignment of error cannot be sustained:

3d. The second assignment of error is, that if a decree is proper against these lands at all, it should have apportioned this debt among the several devisees, and provided that upon payment of such proportion by each devisee, the lands of such devisee so paying should be protected from further liability, unless upon a sale of the lands of the delinquent devisees there should be a deficit.

It is true that the third • section of chapter 137 of the Code clearly subordinates and postpones the devise to the claims of creditors, and makes the whole of the property devised chargeable with the payment 'of the testator’ debts. But it is equally true that unless the will direct otherwise, and it does not in this *case, the land devised is primarily liable according to its value, and the burden of the testator’s debts, or such part of it as devolves on his devised lands, falls on the devisees in proportion to the value of the lands devised to them respectively. The whole of his estate is liable- for the payment of his debts, and if necessary for their payment, the creditors may subject all to that purpose to the total exclusion of his devi-sees and legatees. But if the whole of it be not necessary for that purpose, equity will require the burden to be laid upon the estate in such a way and in such proportions as to do no injury to the devisees and legatees, provided that can be done without doing injury to the creditors or subjecting them to unreasonable delay. And that can always be done where, as in this case, all the parties interested in the subject are before a court of equity, in a suit in which the matter is involved, and the means of making an apportionment of the burden are readily at hand and can be used without injury or material delay to the creditors. Of course the whole estate is liable for the debts, and may be resorted to until they are completely paid. Equity only regulates and controls the manner and order of making such resort so as to prevent injury to devi-sees and legatees by taking from them what is not necessary for the payment of debts if the burden of them be properly adjusted.

N.o doubt all the devised lands are liable for the payment of the debts of the testator, but surely each devisee should be allowed to save from sale, if possible, the land devised to him by paying his ratable share of the debts, as among the devisees themselves each is liable for a part of the debt proportioned to the value of the land devised him. If he pay more, or his lands are sold to pay more, he certainly has the right to call on his co-devisees for contribution. But *why sell, his lands, and perhaps deprive him of a home, and then turn him around on the others to get his money, which probably would not compensate him for his loss, for the loss of a home is often irreparable? It is the constant course of equity so to administer justice as to prevent multiplicity of suits and circuity of action, save costs, and put an end to litigation. The case of Mason’s devi-sees v. Peter’s adm’rs, 1 Muaf. 427, referred to in 2 Rob. Pr. (old ed.) 89, seems to be directly in point. Akin to it is the case of Mayo v. Tomkies, 6 Munf. 520, 528. Upon like principles was the decision, in part, of the case of Horton v. Bond & others, 28 Graft. 815. See what is said on pp. 825, et seq., and so much of the decree on pp. 829, 830, as relates to this subject. The last-named case, in which the opinion of the court was delivered by Judge Burks, presented the question of equities among sureties, and the court respected those equities in giving relief to the creditor. The principle is the same in all the cases, to-wit: that where there is a common burden, and the parties liable are all before the court, equity will apportion the burden in the first instance according to the rights and liabilities of the parties, provided that can be done without prejudice to the creditor, who has a claim on all. It can be done and should have been done in the present case. The objection is not removed by the provision in the decree, that the commissioner “shall sell such part or parts of said real estate as may be selected for the purpose by said devisees.” The devisees might not agree as to the selection or as to the value of their respective devises, and each would be in the power of the other. Besides, some have sold nearly all their lands.

The principles just laid down are strongly applicable to this case, in which there is but one debt due by the testator’s estate, which was a suretyship debt that he *doubtless had not the remotest idea of ever having to pay, and had doubtless forgotten when he wrote his will, and his devisees never heard of until about seven years after his death, when, for the first time, it was claimed against his estate and an action of debt was brought therefore-against his executors, long after they had' in good faith fully administered his estate, without any idea of the existence of the debt now claimed against it, or any other debt for which it could possibly be liable. The creditor was no doubt aware of what they were doing, and yet asserted no claim against the estate until about the time he brought the action aforesaid; perhaps because he expected to receive payment of the principal debtor until he became a bankrupt, which may have been shortly before said action against the executors of the surety was instituted. But however that may have been, the case was a very proper one for the application of the principles aforesaid.

The court is therefore of opinion that the second assignment of error is well founded, and the decrees appealed from are erroneous on the ground relied on in that assignment.

3d. The third assignment of error by the appellants is, that they are entitled to a large sum from their father with which he was chargeable as their guardian; that they have not released said claim or waived their right “to an account to show how they stood affected in the actual state of the case, that they might make an intelligent election, whether to accept the devises under the conditions annexed to them, or to-assert their claims on their guardian,” &c.

The court is of opinion that whether the devises made by the testator to his children, can be properly said to have created a case for an election by them between the said devises and their claims against him as their guardian, or to have been a .case of devises on condition that *the devisees relinquish and release all claim that they might have had against their father as their guardian, is an immaterial question in this case, and that it is perfectly clear that in the former view they elected to accept the devises as a full satisfaction of any claim they might have had against their father as their guardian, and in the latter view they accepted the devises on the condition on which they were made, and in neither view can any claim be now asserted by them against the estate of their father, on account of his guardianship for them. They, in fact, accepted the devises in his lifetime, possessed them for about a year before his death, and have continued to possess them ever since, until they sold portions of them, and never pretended to set up any claim on account of said guardianship until they filed their answers in this case, on the 26th of November, 1877, although the testator died more than eleven years before, in 1866, and action was brought against his executors for the debt now in controversy on the 18th of March, 1873.

The court is therefore of opinion that there is no error in the said decrees on the ground stated in the said third assignment of error.

4th. The fourth assignment of error is as to the personal decree against the executors, John T. Lewis and R. B. Lewis, for a devastavit of the assets of their testator; in which it is insisted that there should have been no personal decree against them until' a decree was had against the legatees, to whom those executors paid money of the estate and turned over certain 'personal property of the testator.

' There can be no doubt but that these executors were personally liable, as for a de-vastavit, for the amount thus decreed against them; nor can there be any but that they are entitled to 'have recourse over against the legatees to whom they had paid the same amount. If they *had, as they might and ought to have done, required and taken refunding bonds, with good security, according to law, from the legatees on making such payment, the only recourse of the creditor of the estate for his debt would have been upon such bonds. As they did not take such bonds they remain liable to the creditors, but have their recourse over against the legatees to whom théy paid the money. But as both executors and legatees are before the court at the suit of the creditor, why not settle the matter by one decree instead of two; or, to use a common but expressive phrase, “why not put the saddle directly on the right horse”? This would accord with the principles of equity before referred to. If the decree against the legatees should be unavailing in whole or in^ part, the executors would of course remain personally liable for the deficiency, and there would be a decree over against them therefor. All the risk the creditor would run by this operation would be that of incurring a little delay in getting, his money; and he could not justly complain of that, under the circumstances. He would have incurred the same if the executors had, as they might have done, taken and returned a refunding bond with security. They acted in good faith in settling with the legatees and requiring no refunding bond; believing, 'and having the best cause to believe, that their testator owed no debt. On the other hand, the only creditor of the estate failed to assert or give any notice of his claim until seven years after the testator’s death.

The court is therefore of opinion that the fourth assignment of error is well founded.

5th. The fifth and last assignment of error is that -the plaintiff, John A. Coke, was-appointed, and authorized to act alone, as a commissioner to sell the lands of the said devisees in execution of the decree; and that the penalty of the bond required of him — $1,500 — was inadequate; *the debt for which the sales were to be made exceeding $5,000.

The* case of Teel & ais. v. Yancey & als., 23 Graft. 691, is an express authority for the action of the circuit court in appointing the plaintiff. John A. Coke, and authorizing him to act alone .as a .commissioner, to sell the s'aid lands in execution of the decree; and. there is therefore no error in the. action of the court in that respect. Nor is there any error in the said decree in regard to the penalty oi the bond, which does not appear to have been inadequate. It appears that the amount necessary to. be raised by said sale will probably be about $2,500, one-third of which was required to be paid in cash— that is little upward of $800. The penalty of the bond was fixed in reference to that-amount, and would seem to have been adequately fixed at $1,500.

The court is therefore of opinion that so far as the decrees appealed from do not con-' form to the foregoing opinion they are erroneous, and ought to be reversed and annulled; and that the residue thereof ought to be affirmed, and the cause remanded for further proceedings to a final decree in conformity with the foregoing opinion.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that although the appellants, John T. Lewis and R. B. Lewis, are chargeable with the sum of $1,462.50, with interest from the 1st day1 January, 1867, by the said decree of the 4th day of July, 1878, decreed to be paid by them to the appellee, John A. Coke, administrator de bonis non of R. Y Overby, deceased, on account of his judgment against the said appellants as executors of John' Lewis, deceased; the said executors having committed a devastavit *in paying and distributing the said sum of money to and among the legatees of their said' testator when it was first liable to the payment' of the said judgment, or the debt for which it’ was obtained. Y'et, as the said executors' made such payment and distribution in good faith, and without knowledge of the existence of the. said debt, they are entitled to have their re-, course over against the said legatees for the amount so paid to and distributed among them, with interest from the time of such payment and distribution; and as the said legatees' as well as the said executors are all parties to. the suit, the said circuit court, instead of rendering a' decree first in favor of the said appeL lee against the said appellants, and thereafter in favor of the said appellants against the said legatees for the said sum of money and' interest, ought to place the burden directly on the -shoulders of those who ought ultimately to bear it, and in the proportion in. which they ought so to bear it respectively.' And if the decree to be so rendered against, them should prove ineffectual, in whole or in part, then there may and ought to be a' decree in favor of the said appellee against the said appellants for the said sum of money and interest, or so much thereof as may not have been recovered and received of the said legatees as aforesaid.

And the court is further of opinion that, although the real estate which was devised by the said testator, John Lewis, to his dev-isees respectively, or so much thereof as has not since his death and before the institution of this suit been sold by them or any of them to bona fide purchasers for value, and without notice, still remains bound and liable for the said judgment in favor of the said appellee, which amounts to $4,938.47,' including interest to the 25th day of November, *1877, with interest on the principal sum thereof from that day till payment, and his costs of said suit, sub- i ject to a credit for the amount which may be realized by the said appellee on account of the said judgment out of the personal estate of the said testator as aforesaid; yet, instead of directing a sale of said real estate, as was done in the said decree of the 4th day of July, 1878, the said circuit court ought to have the balance due upon the said judgment and costs, after applying the said credit, apportioned among the said devisees according to the value of their respective devises and bequests at the date of the death of the said testator. ' And if the said devisees fail to pay to the said appellee in a reasonable time, to be prescribed by the court, their respective portions of the said balance according to the said apportionment, then the real estate which may have been devised by the said testator to such of the said devisees as may be in default as aforesaid, or such part thereof as may remain unsold to a bona fide purchaser for value and without notice after the death of the said testator and before the institution of this suit, or so much of the said real estate as may be sufficient to pay the said portions of the said devisees in- default as aforesaid respectively, ought to be decreed to be sold for that purpose. And if the real estate devised to any of the said devisees, and remaining unsold as aforesaid, shall be insufficient to pay their respective portions of the said balance according to the said apportionment, then there may be a personal decree to the extent of such deficiency against the said dev-isees respectively, not to exceed, however, the amount received by them for land devised to them, and sold after the death of the testator and before the institution of this suit as aforesaid. But should any such personal decree be unavailing, in whole or *in part, the amount as to which it may be unavailing ought to be apportioned among the remaining devisees, and the real estate devised to them respectively, and not required for the payment of their respective portions of the said balance, ought to be held liable for the payment of their respective portions of the amount as to which such personal decree may be unavailing as aforesaid. And so' on until the entire debt due to the said appellee, including interest and costs as aforesaid, is fully satisfied, or the real estate devised by the said testator and remaining unsold as aforesaid, is exhausted in the payment of the said debt, interest and costs. The whole of the said real estate being liable for the payment of the said debt, though it is considered just and equitable under the circumstances of this case that such liability should be in the manner aforesaid, all the parties concerned being before the court, such adjustment can be affected in a reasonable time, and whatever delay may occur thereby, being occasioned by the laches of the only creditor of the estate in'th'e assertion of his claim against it.

' The court is further of opinion that the decrees appealed from are'erroneous, so far as they conflict with the foregoing opinion and decree, but are not erroneous so far as they are consistent with the same. Therefore it is decreed and ordered that so much of the said decrees as are above declared to be erroneous be reversed and annulled, and the residue thereof affirmed, and that the appellants recover of the appellee, John A Coke, administrator with the will annexed of R. Y. Overby, deceased, their costs _ by them expended in the prosecution of their appeal aforesaid here, to be levied of the estate of his said testator in his hands to be administered. And it is further decreed *and ordered that this cause be remanded to the said circuit court to be further proceeded in to a final decree, in conformity with the foregoing opinion and decree; which is ordered to be certified to the said circuit court of Mecklenberg county.

Decree reversed in part.  