
    *Corbin & als. v. Mills' Ex’ors & als. Robinson’s Adm’r v. Mills’ Ex’ors & als. Lancaster & als. v. Corbin & als.
    January Term, 1869, Richmond.
    i. Audited Accounts — Prima Facie Correct—Bill to Surcharge.—The accounts of an executor which have heen regularly settled inlthe mode prescribed by law, are to be taken as prima facie correct. They are liable to be impeached on specific grounds of surcharge and falsification to be alleged in the bill, but the court will not decree an account, upon a general allegation that the settled accounts are erroneous.
    2. Account Ordered—Additional Objection to Settled Accounts—Affidavit—Weight.—When an account has been ordered upon a proper bill, if an additional objection to the settled accounts is discovered in the progress of the cause, the plaintiff may raise the objection before the commissioner, with a proper specification in writing; and the defendant may meet the objection by an affidavit, which shall have the same weight as an answer would have had if the matter had been alleged in the bill.
    3. Bill for Account by Legatee—Overhauling Settled Accounts.—Executors have regularly settled their accounts before a commissioner of the court of probate, and they have been approved and recorded. A devisee and legatee of their testator files a bill, and without specifying any errors in the settled accounts, calls upon them to render an account of all their actings and doings. The executors may object to any overhauling of their settled accounts, except so far as they may be open to objections apparent on their face.
    4. Same—Answer—Presumed True.—To such a bill the executors answer, giving a .full account of their administration; and there is a decree for an account. The allegations of their answer, though affirmative, must be taken as true, unless disproved, so far as they relate directly to the accounts which they are thus required to give.
    5. Same—Same—Same.—If in such a case the plaintiff does not amend his bill, and specify errors in the accounts, allegations in the answer, though not explanatory of the account, and therefore not perhaps within the scope of the discovery sought by the bill, but having a relation to the *subject matter of the account and important to a correct understanding of the motives of the executors and of the circumstances under which they acted, unless disproved, are to he taken as true.
    
      6. Will—Legacies—Demonstrative—General. — Testator gives to his daughter for life $540 per annum, payable quarterly, being the interest on the purchase money ($9000) of the real estate on &c. sold by me to B. He gives two other sums to the daughter for life per annum. described as the interest on the purchase money of other parcels of land, sold, to other parties, and $300 per annum, payable semi-annually, the interest on $5000 of State stock of Virginia. And at the death of his daughter he gives these several principal sums of money to the children of his daughter. And he receives payment of part of the purchase money specified, in his lifetime. The legacies both to the daughter and her children of the three first sums are demonstrative and not specific. The legacy of the stock and the interest upon it is a general legacy of so much State stock and the interest upon it, as it is paid by the State.
    7. Same—Construction—Vested Legacy,—To this bequest testator adds: In case of the death of any child of my said daughter, horn or to be born, unmarried under the age of twenty-one years and not lea ving issue, the share of property coming to this child shall immediately vest in and belong to his or her surviving brothers and sisters and their lineal descendants: the descendants taking their deceased parent’s share. A child of the daughter, over twenty-one years of age at the death of the testator, after his death marries and dies in the lifetime of her mother, not having had a child and her husband surviving her. The legacy vested in the child at the death'of the testator: and it did not divest upon her death without children, but her husband takes it as her administrator.
    Nicholas Mills, an old citizen of Richmond, departed this life on the 13th of September 1862, having made his will, which bore date on the 17th of October 1861, and which was duly admitted to probate in the Hustings court of the city of Richmond on the 24th of September 1862; when his son, Charles S. Mills and Robert R. Howison, two of the executors named in the will, qualified as such; the third nominated executor, his grandson, Thomas V. Robinson, being then in the army, did not qualify' until the 15th of December 1862. Mr. Mills left a large estate, and a number of children and grandchildren. The questions -which were considered *in these causes arise under the fourth, sixth, ninth and fourteenth clauses of the will, though the whole scheme of the will is necessary to be looked to, in order to judge correctly of the conduct of the acting executors.
    The 4th clause of the will is as follows:
    u4. I give, devise and bequeath unto my executors, hereinafter named, in trust for the separate benefit of my daughter, Sarah Ann Robinson, and her children and grandchildren, born or to be born, subject to the purposes, limitations and conditions hereinafter declared, the sum of one thousand and eighty dollars per annum, payable semiannually, being the interest on the purchase money of the real estate on Main street, Richmond, sold by me to Charles Y. Morris; also, the further sum of four hundred and fifty dollars per annum, payable quarterly, being the interest on the purchase money ($7,500) of the real estate on Main street, sold by me to Lewis Hyman; also, the further sum of five hundred and forty dollars per annum, payable quarterly, being the interest on the purchase money ($9,000) of the real estate fronting on Franklin street, sold by me to Thomas Bradford; also, the further süm of three hundred dollars per annum, payable semi-annually, being the interest on $5,000 of State stock of Virginia. These annual sums, to the extent necessary, are to be applied by my executors to the genteel support and comfort, in all respects, of my said daughter .Sarah Ann Robinson and her family during her life, and the proper and suitable education of her children and grandchildren born, or that may be born; and if, after providing for these purposes,. any surplus remains, I direct my executors to invest such surplus in some productive stock, or in a safe loan on good real or personal security, the dividends or interest to constitute a portion of the trust fund hereby provided for the benefit of my said daughter Sarah Ann Robinson and her ^family. At her death it is my . will and desire, and I give and bequeath accordingly, that the principal (producing said interest), to wit: $18,000 from the property sold to Charles Y. Morris; $7,500 from the property sold to Lewis Hyman; $9,000 from the property sold to Thomas Bradford, and $5,000 in Virginia State stock, together with all the accumulations from the surplus aforesaid, that may be invested or may have arisen, be equally divided, share and share alike, between and among the children of my said daughter send their lineal descendants, the descendant or descendants of any deceased child taking such child’s share; and in case of the death of any child of my said daughter (born, or to be born), unmarried under the age of twenty-one years, and not leaving issue, the share or shares of property and estate coming to such child under this clause of my will, shall immediately vest in, and belong to his or her surviving brothers an<J sisters and their lineal descendants, share and share alike, the descendants of any-deceased child taking such child’s share. But I hereby will and direct that all the property and estate herein given in trust for my daughter Sarah Ann Robinson and her issue, shall be held subject to indemnify my estate against any loss by reason of the covenant -which I have entered into to Rdmund Fontaine, in respect to the property on Sixth street, contained in the, deed made by me as commissioner and trustee, dated the 1st of January 1853, and of record in the Hustings court, Richmond, in the event that said conveyance be not assented to and confirmed by such issue, when and as they become respectively competent to make such assent, and shall become entitled to, or be given, a share of the property hereby given in trust for the said Sarah A. Robinson and her issue.”
    The testator then gives Mrs. Robinson absolutely, as her separate property, some household furniture, and one thousand dollars, which he directs his executors to *pay to her immediately on his de- • cease, or as soon thereafter as possible.
    By the 5th clause of his will, the testator gives to his executors certain slaves by name in trust for Mrs. Robinson and her children and grandchildren, as is provided in the fourth clause.
    The sixth clause is as follows:
    “6. In the event of the marriage, or the attaining to the age of twenty-one years of any child of my said daughter Sarah Ann Robinson, it shall be the duty of the executors, if required so to do, in writing under the hand atnd seal of my said daughter, and attested by at least two credible witnesses, to make to, or for the benefit of, such child, such advancement from the estate given in trust for my daughter and her issue, as shall not exceed such child’s portion of said trust fund, but such advancement may be as much less than such portion as my said daughter may direct. And in the writing thus executed by her, my said daughter may prescribe on what terms, trusts, conditions and limitations such advance shall be made; and it shall be settled accordingly under the superintendence of my executors. ’ ’ By the ninth clause of his will, the testator gave to his executors in trust, for the four children by name of his daughter Mary C. Corbin, an estate in the county of Caroline, called the “Reed’s plantation.” The same to be for their equal benefit, with limitations over to the other children, if one or more of them died unmarried, under the age of twenty-one years, and without leaving issue living at his or her death.
    The fourteenth clause is as follows:
    1 ‘14. All the real estate which I may leave at my death,, not otherwise specially disposed of, I desire that my executors shall sell in such manner and on such terms as they may deem most advantageous. All money on hand and stocks in cornpanies not specifically *given or bequeathed in this will, all debts due me, and all other personal estate owned by me, I hereby direct my executors, as soon after their qualification as practicable, to dispose of as follows: My slaves shall be disposed of as provided in the next clause of my will; all other funds shall be applied first to the payment of my funeral expenses, medical bills, all just debts I may owe at my death, and then to the two sums of one thousand dollars each given to my daughters Sarah Ann Robinson and Jane R. Blair, then to provide for the punctual payment of the annuities hereby given; then for the pecuniary legacies given tó my children; then for the pecuniary legacies hereby given to my grandchildren. All the rest and residue of my estate (except slaves) not specifically devised or bequeathed herein, no matter of what it may consist or where it may be, not effectually disposed of by this will, or which may turn out by lapse of devisees, legatees or legacies, not to be effectually disposed of by my will, I hereby bequeath as follows: first out of such residnary fund shall be paid to my sons Charles S. Mills and Ronald Mills each three thousand dollars; and the remainder I give and bequeath equally, share and share alike, to all my grandchildren, and the lineal descendants of such as may die, such descendants taking the share of the parent; but my six grandchildren to whom two thousand dollars each is bequeathed, are not to participate without bringing into the division the said legacies of two thousand dollars each so given them.
    In all the provisions which the testator makes for his children, except Charles S. Mills, the property is given to the executors in trust for the benefit of the child and his or her children, and at his death for his children, &c., with limitations over among the grandchildren, and their descendants. Of these there are three beside the two already mentioned; and there are annuities *which the executors are to pay to another son and a son-in-law. By the thirteenth clause the testator gives to six of his grandchildren by name $2,000 each, which his executors are directed to invest in safe and productive stocks, or safe loans on real and personal estate, to be applied if necessary to their support, and if not so necessary, the interest to accumulate and the whole to be paid as they shall marry or come to the age of twenty-one years.
    The eighteenth clause of the will is as follows:
    “18. I authorize and empower my executors, when they may deem it expedient, and when requested so to do by the person or persons for whose benefit the trust fund is held, to change by sale and repurchase or otherwise, the investment of any trust property given by this my will, taking care, however, to secure the substituted investment in a safe form and substance, and to hold and appropriate the same under the same trusts, uses, conditions, limitations and powers, as those herein declared applicable thereto. And in case any person or persons for whose benefit the trust fund is, shall be an infant, the change of investment may be made by my executors without the consent of such infant.”
    21. I appoint my son Charles S. Mills, my grandson Thomas Verney Robinson and Robert R. Howison executors of this my will, and having confidence in'their capacity and integrity, I direct that security shall not be required of them on their qualifying as such.
    Besides the annuities for life left by the will to one of his sons of $800 a year, $300 a year to his son-in-law, and the annuities to his daughter Mrs. Robinson, the pecuniary legacies bequeathed to his children and grandchildren amounted to $37,500, and out of the residue $3,000 each to his two sons Charles S. and Ronald Mills. There were specific legacies of three hundred and fifty shares of Richmond, Fredericksburg and Potomac Railroad Company’s stock, one hundred ^shares of the stock of the Midlothian coal company, $10,000 of Virginia State bonds, and $5,000 of the bonds of the city of Richmond. The slaves not specifically bequeathed were directed to-be hired out by the executors.
    The estate was appraised on the 14th of October 1862, the valuation being in Confederate money. The real estate not specifically devised, consisted of a lot on Eeigh street running from Seventh to Eighth streets, with the buildings thereon, which was valued at $55,950: the slaves were valued at $12,100; the stocks in various railroads, &c. were valued at $92,975. Of these there were of the Richmond, Fredericksburg and Potomac Railroad Company, three hundred and eighty-nine common, valued at $75 a share, and one hundred and thirty-three shares guaranteed, valued at par $100. There were of Midlothian coal mining stock, two hundred and fifty shares valued at $50 a share, and of Exchange hotel stock, one hundred and ninety shares, valued at $60 a share. There were of bonds of the State of Virginia, the Confederate States and corporations, $126,906 42; of these there were State bonds amounting to $33,300; Confederate States bonds $19,200 Richmond city bonds $22,076; North Carolina bonds $11,430; the furniture was valued at $6,159. The whole amounting, with carriages and horses, to $318,965 42. In addition to the foregoing the executors gave a statement of debt, supposed to be good, $12,450; and the estimated value of ground on which the Exchange hotel stands, now under ground rent, $25,000. As this is one of the subjects of controversy in one of these cases, it is necessary to give the facts in relation to it.
    By deed bearing date the 31st of July 1839, Nicholas Mills and wife leased for one hundred years, with covenant for perpetual renewal, the greater part of the ground on which the Exchange hotel now stands, to *Hugh W. Fry and six others, upon an anuual rent of $1,600 in current money of the United States, payable quarterly, with condition that if the rent remained unpaid for thirty days after it became due, and there was no sufficient distress upon the premises whereof to make the rent, Mills might re-enter and hold the same again as of his former estate. And the parties of the second part covenanted that they would erect on the premises within two years from the date of the lease, valuable and permanent buildings which would cost in material and workmanship, not less than forty thousand dollars, and that they would keep the same well and sufficiently insured, and in good repair.
    And it was further covenanted and agreed between the parties, that the premises demised with all the buildings which should be put upon them, should be conveyed by Mills and wife, or their heirs, with general warranty, at any time within five years from the 1st day of January 1840, on receiving the sum of twenty-five thousand dollars current money of the United States, and all rents that had accrued thereon up to the time of the said payment, or at any time after the said five years, upon receiving in current money of the United States a sum which would be sufficient to produce in interest thereon at six per cent, per annum sixteen., hundred dollars in like money in quarterly payments. And upon this conveyance the rent reserved was to cease.
    By an endorsement on this lease, the lessees undertook to pay all taxes upon the property. And it was declared and agreed, that upon the incorporation of the company then contemplated, "and its proper organization with a capital of not less than eighty thousand dollars, and the assignment and transfer of the said lease to said company, with the same or similar covenants on the part of the company, and buildings should have been erected on the property demised of not less *value than forty thousand dollars, the liabilities of the parties of the second part should cease and determine, and from that time the lessors, and those claiming under them, should look alone to the compan3r and the property demised for the performance of the said covenants and stipulations which might be entered into by the said company.
    The Exchange Hotel Company was subsequently organized, and proceeded to build the hotel at a cost of $125,185 01, and rented out the property until 1862, when not being able to rent it satisfactorily, the company determined to sell it. It was sold at public auction in November 1862 for the sum of $101,000, subject to the'rent charge held by Mr. Mills’ estate, and to another rent charge granted for another part of the ground on which the hotel was built, to Mrs. Ann Stetson for life, and at her death to Joseph Allen, and was purchased by Robert A. Lancaster, Samuel W. Harwood, Emile O. Nolting and Samuel J. Harrison, and was conveyed to them by the company by their deed, bearing date the 24th of November 1862.
    By deed dated April 30th, 1863, .Charles S. Mills and R. R. Howison, executors of Nicholas Mills, deceased, reciting that Lancaster, Harwood, Nolting and Harrison have paid to said executors, in current money of the Confederate States, the sum of $26,666 66%, being a sum sufficient to produce in interest thereon, at the rate of six per cent., the sum of sixteen hundred dollars per annum, conveyed to them with special warrant3', the property embraced in the lease aforesaid. And by deed dated the next day,' Lancaster and wife- and Harrison and wife, for the consideration of $79,833 33, conveyed their interest, being two-fourths in said property, to Wm. A. Stuart. Harwood, on the’ 22d of May 1863, conveyed to Nolting and Stuart his interest in the property in trust, to secure to them the payment annually of one-fourth of the sum of $1,600, the same to be paid ^quarterly; that is, two hundred dollars to each of them, with the right to extinguish the rent by the payment of $3,333 33% ; and by deed dated July 13th, 1863, Stuart conveyed to Lawson Nunnally his moiety of the Exchange hotel property in trust, to secure certain debts therein named.
    Charles S. Mills and R. R. Howison having qualified as executors of Nicholas Mills, deceased, in September 1862, they proceeded to sell the real estate not specifically devised, consisting of the lot on Leigh street, and it was sold at public auction on the 28th of October following, for the sum of $128,236 30, and was conveyed by them to the purchasers. On the 18th of November 1862, they received in Confederate money on the bonds of the Midlothian Mining Company $15,300; on the 3d of Januar3r 1863, they received payment of the bond of the Exchange Hotel Company $10,000; on the 12th of March 1863, they received payment of the last bond of Charles Y. Morris, principal and interest $9,268 88. This bond constituted a part of the debt of Morris, mentioned in the bequest to Mrs. Robinson and her children. This debt was evidenced by two bonds of Morris, dated the 1st day of October 1861, each for $9,000; the first payable five, and the second ten years after date, and each providing on its face that Morris should have the privilege of anticipating its payment, or any part of it, at any time in sums of not less than five hundred dollars, interest being rebated on the payment so made until the maturity of said bond. The first of these bonds was paid to Mr. Mills in his lifetime, tlie second was paid to the executors as above stated, and, thereupon, the deed of trust upon the real estate, purchased to secure them, was released. The executors appear to have applied the moneys received by them as soon as it was received, either by investing it in Confederate States bonds, or in payments to the legatees. They settled their accounts before a ^commissioner of the court of probate in December 1863 and 1864, in which accounts they appear to have embraced all the moneys received, and they show the investments and payments made by them for and to the legatees, and these accounts were returned to the court and confirmed.
    In respect to the bequest to Mrs. Robinson and her children it appears further, that Mr. Mills, by deed dated the 25th of September 1861, in consideration, as stated in the deed, of the sum of $8,000, conveyed to Lewis Hyman certain real estate on Main street in the city of Richmond; and on the same day Hyman conveyed the same real estate in trust to secure the payment of the sum of three thousand dollars due by four bonds bearing even date with the deed, drawh b>T said Hyman and payable to said Mills at six, twelve, eighteen and twenty-four months after date, each for the sum of $750, with interest thereon payable semiannually. The executors state, in their answer, that these bonds were paid by Hyman to Mr. Mills in his lifetime, as was the other part of the purchase money mentioned in the deed from Mills to Hyman. Of the debt of Bradford, one bond of one thousand dollars appears to have fallen due in January 1863, when it was paid by Bradford to the executors.
    On the 27th of September 1865, Nicholas Mills Corbin, one of the grandsons of Nicholas Mills, deceased, and one of the devisees to whom was given the Reed’s plantation, in Caroline county, filed his bill in the Circuit court of the city of Richmond, in which he stated the death of Nicholas Mills, his will, the qualification of Charles S. Mills and R. R. Howison as executors, the subsequent qualification of Thomas V. Robinson ; the plaintiff’s interest in the estate under the 4th, 9th and 14th clauses of the will; that he has recently attained lawful age, and that he is anxious to have a just ' and fair settlement of the account of the executors and *a division and distribution of the estate, so far as may be proper under the will. He is urged to ask the aid of the court to effect such a settlement and distribution, because he is not satisfied with the conduct of the executors in administering the trusts* of said will, and because the estate in the county of Caroline, which by the 9th clause of the will the testator devised to his executors in trust for the benefit of the plaintiff and his brother and sisters, and for their support, &c., have been and are so neglected and mismanaged by the executors, as that the complainant and his brother and sisters have not derived, and are not deriving, any adequate advantage or benefit therefrom. And making the executors, in their characters as executors and trustees, and all other persons interested in the estate, parties defendants, he calls upon the executors to exhibit a true and perfect inventory of all the estate, &c., which have come to their hands; that they be required to render an account of all their actings and doings as executors and trustees ; that the will be construed, and all questions arising thereunder be settled by the court; that the executors be required to account for and pay into court all the trust moneys and proceeds of the trust property which have come to their hands; that a division and distribution may be made of the estate as far as proper; that all proper accounts may be ordered; and for general relief.
    Charles S. Mills and R. R. Howison filed a joint answer, in which they gave a very full account of their administration of the estate of Mr. Mills. They say Mr. Mills was remarkable for industry, sagacity, prudence and foresight in the management of his business. He made his will about the 17th of September 1861. The Confederate States had then been organized, Confederate treasury notes had become the currency of the country, and was received by the banks of Virginia. At that time the war was in active operation, and was ^already attended by losses and disturbances to which such a war would necessarily give rise. Under these circumstances Mr. Mills made his will, by which he directed his real estate to be sold, for the purposes stated in the 14th clause of the will. But this was not all he did. During the year 1862 he collected, in Confederate currency, the whole amount of the debt due him from Hymian, mentioned in the 4th clause of his will; one-half of the debt due him from Charles Y. Morris, $1,000 of the debt due him from Bradford, and $7,000 on account of a debt due him from the Exchange Hotel Company. Of these debts, Bradford’s originated prior to the war and was secured on real estate; and that of the Exchange Hotel Company originated many years before the war. The sums of money thus collected by Mr. Mills in Confederate currency was invested by him in eight per cent. Confederate bonds; and he left at his death $19,000 in Confederate eight per cent, coupon bonds, and $7,000 in North Carolina eight per cent, coupon bonds; all o f which had been purchased by him durin g the year 1862. In relation to the first bond of Morris, he applied to Mr. Mills in 1862, proposing to pay it, and» Mr. Mills promptly stated that he was perfectly willing to receive in payment of that debt or any other debt due him, the currency of the Confederate States. Mr. Morris therefore paid the amount into the Farmers Bank of Va., to the credit of Mr. Mills, and received his bond. This occurred early in June 1862.
    They say that immediately after the death of Mr. Mills, they endeavored to obtain the presence of Thomas V. Robinson, who was then in the army, that he might qualify with them as executor, but they did not succeed, and as it was uncertain when he could obtain leave of absence, they deemed it their duty at once to offer the will for probate, and proceed to its execution. After qualifying as executors, they considered it their duty to proceed, without unnecessary *delay, to sell the real estate of the testator, according to the directions of the will. The real estate consisted almost entirely of the lot of ground on Eeigh street, which was valuable, but unproductive, yielding no income to the grandchildren, who, as residuary legatees, were entitled to the proceeds. It sold very high, far higher than was expected, having been appraised a few weeks before at about $68,000, and selling for about $128,000. The sale was of course on the basis of bankable currency.
    They say the question of investments then eng’aged their earnest and careful attention. They looked to the directions of the will; the action of Mr. Mills in his lifetime ; they made enquiry whether loans could be made on real and personal security, and they found that none such could be made. They then consulted the most judicious men they knew, such men as the presidents of the banks, prominent and prudent merchants and business men. The result of these consultations was, that investments in Confederate eight per cent, bonds were such as would best meet the will of the testator, and that all other investments that could be made were more or less affected by the same contingencies. Under these circumstances they invested in Confederate eight per cent, bonds.
    The question of receiving in bankable funds debts due the estate, which became payable according to their tenor, and which were tendered by the parties owing them, was anxiously considered by the executors. They refer especially to the three debts before mentioned, of Bradford, Morris, and the ground rent due from the Exchange Hotel Company, and say these debts were all tendered in bankable funds to these executors by the parties owing them, or bound for them, and entitled to pay them. They refer to the action of the Virginia legislature, intended to compel the receipt of Confederate treasury notes bjr the people of the State, and to *the revenue laws of the Confederate congress, designed to effect the same object, which, if their investments had been made in any other securities, or if they had refused to take these treasury notes in payment of debts, would have absorbed in tabees all the interest, and much of the principal, of the estate, leaving no income for the objects of the testator’s bounty.
    With respect to the charge in the bill that the “Reed’s plantation” had been mismanaged, they say—It will hardly be contended that the testator’s will required the executors to go personally on the plantation and manage it. None of them were fitted for such duties. Charles S. Mills did what his father had been doing; he gave such time and attention to the plantation as he could; and he did this cheerfully without compensation, for the benefit of his nephews and nieces interested. The slaves were not a part of the testator’s estate; they were held under a trust in which Messrs. Macfarland and Rhodes were trustees for Mrs. Corbin and her children. After Mr. Mills’ death Mr. Macfarland requested Charles S. Mills to continue to act as agent for the trustees, as his father had done. This he did. He retained the same overseer who had been there for ten years, and he received and disbursed such funds as came to his hands, without charging a commission. And he filed his account showing his receipts and disbursements; and showing a small balance in his hands in Confederate money, which was in bank to his credit at the time of the fall of Richmond. They state the settlement of their accounts by a commissioner of the court of probate and their confirmation by the court; and they exhibit copies of them.
    The executors submit to the court the question, whether an afterborn grandchild will take as a residuary legatee; and whether the legacy to Mrs. Robinson and her children, &c. was adeemed pro tanto by the receipt by the testator in his lifetime, of part of the *debts mentioned in the bequest. Believing that it was not, they have paid to Mrs. Robinson her annuity. They unite in the prayer of the bill for a distribution of the estate according to the rights of the parties.
    In May 1856, Thomas V. Robinson, the other executor, answered separately. He says that as soon as he heard that the other executors had advertised the lot on Eeigh street for sale, he wrote to his mother, from whom he had received the information, protesting against the right of his co-executors, before allowing him a reasonable time to qualify, and without any notice to him, to sell, within so short a time after the testator’s death, the large and valuable real estate of the testator; whose estate was free from debt, and was possessed of the most ample means of supplying all the demands which could properly be made against it under the will or otherwise; and of this his co-executors were informed before the said sale was made. He says he was never consulted by his co-executors in regard to any act pertaining to the administration of the estate until after the fall of Richmond and the surrender of the army of Northern Virginia. That he has always protested against their unauthorized acts in proceeding to exercise the discretion and power vested by the testator jointly in his three executors, without consulting him in the exercise thereof; and he submits to the court whether their acts can be ratified of approved. And he presents to the judgment of the court the question whether sales of real estate for investment in Confederate securities, and collections of good debts secured on real estate, for such investments, by two of the testator’s executors in spite of the solemn protests and objections of the third, where the execution of the powers and duties conferred by the will are confided to the joint discretion of these executors, will be ratified and confirmed by a court of equity, especially *when such action is attended, as in this case, with the loss and ruin of the estate.
    In August 1866, Mrs. Robinson also answered the bill. She insists that the legac3r to herself and her children is not specific but demonstrative, and that she is entitled to have it satisfied out of the general estate. She denies that the executors were authorized or justified in taking any thing but specie or its equivalent for debts due the estate. She insists that the sale of the real estate by two of the executors was invalid, and was a violation of the will of the testator ; and .so also was their deed to Eancaster and others, granting and releasing the real estate and ground rent therein mentioned. And she prays that the principal sum out of which her annuity is to be paid may be taken out of the hands of the said executors, and that the same may be invested under the directions of the court.
    On the same day, Mrs. Robinson filed a cross-bill in the foregoing suit, referring to and adopting her answer as a part of her cross-bill, and praying that the said answer and the statements and averments thereof, may be taken and treated as a cross-bill exhibited by her in this suit against the plaintiff and her co-defendants.
    To this bill, Charles S. Mills and R. R. Howison put in their answer, filing their answer to the bill of Corbin as a part of their answer to the cross-bill. They made farther statements as to the sale of the real estate. They comment also on the answer filed by their co-executor, Thomas V. Robinson, filed in the original cause, and contest his statements as to their treatment of him, and file letters and papers to sustain them; but it is not necessary to say more on that subject.
    On the 21st of May 1866, upon the filing of the answer of Thomas V. Robinson, the court made a decree—That Charles S. Mills and Robert R. Howison, executors of Nicholas Mills, deceased, and trustees under his will, render an account of all their transactions as such ^executors and trustees, before one of the commissioners of the court; and that Thomas V. Robinson do render the like account. In taking which accounts, the commissioner will regard as prima facie correct, the settled accounts of the executors; but subject to be surcharged and falsified by any other party. To report whether the land called the Reed’s plantation can be divided among the devisees thereof; and also what constitutes the residuary estate of the testator, Nicholas Mills, devised and bequeathed to his grandchildren, after providing for the annuities and special legacies bequeathed by the will; how said annuities and special legacies have been provided for by the executors ; and of what said residuary estate and its accumulations consist; with what amount the executors are justly chargeable on account of the estate of their testator; and whether distribution of the residuary estate is proper and practicable.
    In November 1866, commissioner Pleas-ants filed his report. He says, the stated accounts of the executors are sought to be surcharged and falsified before your commissioner in respect of large sums which were received by the executors in payment of debts due to their testator’s estate, or as proceeds of the sale of real estate sold by them under the will. These sums, it appears, were invested by them in Confederate States bonds. The question is raised by the pleadings, ■whether credits should be allowed the executors for these investments. This, the commissioner says, is a question to be decided by the court before he can state the accounts of the executors.
    That it cannot be ascertained what is the residuary estate until it is decided whether the legacy to Mrs. Robinson and her children is specific, of the bonds and stocks mentioned in the fourth clause of the will, or is a demonstrative legacy. And he asked the court further to decide whether the interest of the children of *Mrs. Robinson is vested or contingent. It appears that one of these children intermarried with Edward T. Robinson after the death of the testator, and has died without issue; her husband surviving her. It is a question therefore to be decided, whether the interest of this child of Mrs. Robinson has passed to her husband, or will pass to such of the children of Mrs. Robinson as may survive her, or will then fall into the residuary estate.
    As to the enquiry directed in relation to ■the Reed’s plantation in Caroline; in order to pass upon this enquiry, it is first necessary to determine whether the partition •will not violate the rights of Robert B. Corbin, the son-in-law of the testator. The testator, by the eighth clause of his will, gives to said Corbin an annuity for life of three hundred dollars, and directs that he shall have the privilege of residing at the said plantation during his life, and of having whatsoever is necessary for his comfortable boarding supplied by the farm.
    In October 1865, Nicholas Mills Corbin instituted another suit in equity in the Circuit court of the city of Richmond against Robert A. Lancaster, E. O. Nolting, Samuel W. Harwood, Samuel J. Harrison, Wm. A. Stuart, Charles S. Mills and Robert R. Howison, executors of Nicholas Mills, deceased, and as trustees under his will, and all the parties in interest under the said will. In his bill he charged that very large sums of money, well secured upon real estate, and which were owing to the testator at his death, were shortly thereafter collected by Charles S. Mills and Howison, two of his executors, in a depreciated currency at its full value, when the same was not a legal tender for the payment of said debts, and was ■well known by the parties paying the same, and to the said executors, to b,e worth in value nothing like a fair equivalent for the value of said debts. He then sets out the facts in relation *to the lease by Mr. Mills to Fry and others, and the subsequent conveyances of the Exchange Hotel property, as herein before given, and the receipt of the money by the said executors from Lancaster and his associates, and the release and conveyance of the property as before stated. He charges that it was an unjust and unlawful exercise of the power and discretion vested in the executors. That said release and conveyance was made bjr the said executors, and obtained by the said purchasers under such circumstances, and for a consideration so grossly inadequate, as to render the transaction a fraud upon the rights of the plaintiff and the other parties entitled under the will of Mr. Mills to beneficiary interests in said debt. And he charges that it was not a release, but a sale of the said lease to Stuart and Nolting. The prayer of the bill is, that the transaction may be declared a breach of trust by the executors, in which the alienees participated, and was fraudulent : That the real estate embraced in the deed from Mills and wife to Fry and others, may be charged in equity with the payment of the debt and interest thereon, or that the said sum of $1,600 per annum, with interest, shall be paid as provided in said deed; and for general relief.
    Charles S. Mills and Robert R. Howison answered the bill. They exhibit a copy of their answer to the first bill, and pray that it may be taken a,s a part of their answer to this bill. They deny that they have committed any breach of trust, or abused their power or discretion in relation to the said lien; and they deny that the debt secured on the Exchange Hotel property was purchased from them by Stuart and Nolting. They never sought the collection of this lien, never applied for, or desired it. They were content to let it remain on the property, and to receive the annual rent of $1,600 for the purposes of the estate. But when the payment of the principal was tendered by, or *on behalf of Lancaster and his associate purchasers, who were the grantees of the Exchange Hotel Company, and therefore by law in privity with the estate of their testator, the respondents were compelled to act upon it. Only two courses were open to them; either to refuse the payment, and thereby to subject the estate of the testator to a crushing taxation, which would extinguish the whole income, and gradually extinguish the principal itself, thereby leaving the annuitants and beneficiaries entirely unprovided for; or to receive the payment as tendered; to increase the investment from a six per cent, to an eight per cent, fund, and thereby to increase the income, and save the infant beneficiaries from the heavy taxation which they w;ould otherwise endure. They refer to the deed of Mills to Ery and others, authorizing the payment in current money of the United States. They say that at the time they were called upon to accept or refuse the payment offered, the congress of the United States had authorized the issue of the National Bank notes as currency. The legislation of the Confederate States forbade the use and circulation of United States currency. That gold had ceased to be currency, either in the United States or Confederate States; that the currency of the United States had greatly depreciated below the value of gold, and was to'gold about as two to one; and a still further depreciation was feared by the prudent and cautious. And thus the funds in which the deed authorized payment to be made, might well have been considered of less value for the purposes of the testator’s estate than the current funds actually received.
    Lancaster and the other purchasers of the property, also answered the bill. They say they bought the property at public auction, and in the announcement of the conditions of sale, the auctioneer referring to the rent charge, of $1,600 per annum, stated that under a covenant running with the land, the owners of the ^property had the privilege of discharging the rent charge, by paying a principal sum equal at six per cent, to its production; the same being in accordance with the provisions of the lease from Mr. Mills, and being recognized by his executors so to be; one of whom was present. But whilst E- O. Nolting was desirous to discharge the said rent charge, his associates, Lancaster, Harrison and Harwood were not, and the privilege was not availed of. Afterwards the defendants Lancaster and Harrison proposed to sell their interest to ffm. A. Stuart, and he expressed a preference to have the property free from incumbrance; whereupon Lancaster, &c. payed off the requisite principal sum, viz. $26,666, to lift the same, which was done with the money of Lancaster, Harrison and Nolting—the two first being reimbursed by their sale to Stuart. Harwood was still indifferent to the transaction, and contented himself with reserving the privilege at a future time if he should desire it; and he has not yet availed himself of the privilege.
    They refer to the accounts of the executors to show that they credited the estate with the amount paid for the rent charge, and that C. S. Mills and T. V. Robinson, two of the executors, and the plaintiffs took large sums' of money as specific and residuary legatees under the will; and that neither they or any one else ever excepted to the accounts. And they further say that since April 1863, the owners of the hotel have remained in possession without any demand of rent by the executors, and without an intimation from them, or the plaintiff or any one else, of any objection that the rent charge had been paid off, or any desire that the transaction should be can-celled, until the downfall of the Southern Confederacy.
    Thomas V. Robinson also answered, referring to and filing a copy of his answer in the first suit, and insisting upon .the views and grounds therein presented. *The three causes came on to be heard together on the 14th day of June 1867, when the court without deciding any of the questions made by the pleadings and the proofs, directed that commissioner Pleasants ascertain and report to the court, what constitutes the estate of the testator Nicholas Mills at this time in the hands of his executors; and how the said special legacies and annuities have been provided for by them, and of what the said, residuary estate, with its accumulations, now consists, and what is the value thereof.
    In November 1867, the commissioner returned his report. He gave a statement of all the estate in the hands of the executors, showing in what it consisted, and the par value thereof; and also what part of it was invested for the special legatees. He reported further that the pecuniary legacies and annuities had been paid up to the time of the report; and the future provision for their payment proposed by the executors was by setting aside certain specified public, bonds, and Bradford’s bond for $7,000; which bonds were worth at par $76,186 50; and the annual interest thereon was $4,752 65. He reported the value of the residuary estate, after deducting the special investments, the real estate devised and the securities above mentioned, which it is proposed to set aside for the payment of the annuities, at $45,958 60. The report shows that the amount of Confederate bonds invested in trust for the special legatees was $28,300; and the amount of said bonds constituting a part of the residuary estate was $191,500.
    The plaintiffs and the defendants, the grandchildren of Nicholas Mills, other than the children of Charles S. Mills, excepted to the renort: 1st. Because it shows the investment by the executors of $191,500 of the trust funds in Confederate bonds. 2d. Because the specific legacies to the six grandchildren of $2,000 each were invested in these bonds. 3d. Because the provision *for the payment of the bequest to Mrs. Robinson and her children was not adequate or suitable for the purpose. There were other exceptions which need not be stated.
    On the 14th March 1868, the three causes came on again to be heard together, when the court held: First. That the executors C. S. Mills and R. R. Howison acted within the scope of the authority vested in them by the will of their testator, Nicholas Mills, deceased, and bona fide in selling the real estate, and investing the proceeds of the sale in Confederate bonds; and were not to be held responsible for the loss which has resulted from said sales and investments. Second. But that the said executors were not authorized bj' law nor by the will of their testator, to collect any part of the principal of the investments which had been made by him secured upon real estate, receiving the nominal amount thereof and investing it in Confederate bonds; and that the payments made to them by Bradford and Morris, were received by the said executors and trustees in the said currency in violation of the rights and interests of the cestuis que trust, and of their duties as executors and trustees under said will. But the court forbore to express any opinion whether the said executors and trustees were primarily liable for the loss of the said trust fund so collected, as the said Bradford and Morris were not parties in either of these suits. Third. That the receipt by said executors from Lancaster and others of the sum of $26,666 67 in said Confederate currency, and in releasing in their favor and for the consideration aforesaid, the deed from Mills and wife to Fry and others, was a breach of trust on the part of the said executors and trustees, in which the said Lancaster and his associates actively participated; and that Wm. A. Stuart and others claiming the benefit of said deed of release, are affected by actual or constructive notice of the said breach of trust. And that the real estate embraced *in the said deed of lease of Mills and wife to Fry and others, is liable to the satisfaction of the said annual charge of $1,600 as provided by the said deed, from and after the 30th day of April 1863, in quarterly payments, for the purposes of the will of said Nicholas Mills, deceased, with legal interest on the deferred instalments,, in the same manner the same would be liable therefor if the said deed of release had not been made. And the said deed of release and the subsequent deeds from Lancaster and Harrison to Stuart, from Stuart to Nunnally and from Harwood to Stuart and Nolting, were set aside and annulled. And liberty was reserved to the parties beneficially interested in the payment of the said annual charge, to apply to the court for further relief, &c.
    Fourth. That the legacy and bequest made in the °4th clause of the will for the benefit of Mrs. Robinson and her family, was not a specific legacy of the particular debts and State stocks therein mentioned, but merely demonstrative, and the payment of said legacy or bequest is charged upon the testator’s estate by the 14th clause of the will. And that the children of Mrs. Robinson, living at the testator’s death, whether they had attained lawful age or not, did not take any vested estate in the fund provided by the said 4th clause for the benefit of herself and her family. And that the defendant, Edward T. Robinson, adm’r of his deceased wife, Nannie M. Robinson, who had arrived at lawful age, at the testator’s death, is not entitled, in right of his said wife, to any interest in said fund. And commissioner Pleasants, in executing the duties- required of him by the interlocutory decree of the 21st of May 1866, was to conform to this opinion and decree.
    Lancaster and his associate purchasers, and Stuart, applied for an appeal from so much of this decree as referred to the question involved in the case of Corbin against Lancaster and others; Nicholas Mills Corbin, *and the other grandchildren of Nicholas Mills, deceased, except the children of Charles S. Mills, applied for an appeal from the decree in the case of Corbin v. Mills’ ex’ors and others; and Edward T. Robinson, adm’r of Nannie M. Robinson, deceased, applied for an appeal from so much of said decree as held that the legacy to the children of Mrs. Robinson was not a vested legacy. All of which applications were granted.
    The cases were argued by J. Alfred Jones and Conway Robinson, for Lancaster and his associates, and E. T. Robinson; by Howison and R. T. Daniel, for the executors ; and by Macfarland & Roberts, N. Howard and Wm. Daniel, for the grandchildren, and for Mrs. Robinson and her children.
    
      
      Audited Accounts—Prima Facie Correct—Bill to Sur» charge.—See the proposition laid down in the first headnote approved in Leake v. Leake, 75 Va. 804; Green v. Thompson, 84 Va. 392, 5 S. E. Rep. 507; Radford v. Fowlkes, 85 Va. 846, 8 S. E. Rep. 817.
      In Leach v. Buckner, 19 W. Va. 45, the court, citing the principal case, said: “The principle is well settled, that the ex parte settlement of a fiduciary is only prima facie correct, and parties interested may file a bill to surcharge and falsify the account so settled. ” See, to the same point, Anderson v. Fox, 2 H. & M. 260; Kyles v. Kyle, 25 W. Va. 378; Cavendish v. Fleming, 3 Munf. 198; Shugart v. Thompson, 10 Leigh 434; Mountjoy v. Lowry, 4 H. & M. 428; Preston v. Gressom, 4 Munf. 110; Burwell v. Anderson, 3 Leigh 348; Newton v. Poole, 12 Leigh 112; McCall v. Peachy, 3 Munf. 288; Atwell v. Milton, 4 H. & M. 253. But it should be noted well that such bill to surcharge and falsify such ex parte settlement must specifically state the particular error. See Green v. Thompson, 84 Va. 392, 5 S. E. Rep. 507; Radford v. Fowlkes, 85 Va. 846, 8 S. E. Rep. 817; Shugart v. Thompson, 10 Leigh 434.
      As to the burden of proof being on the party seeking the surcharge, see Wimbish v. Rawlins, 76 Va. 48; Radford v. Fowlkes, 85 Va. 846, 8 S. E. Rep. 817.
      The annual account may be impeached, surcharged, or falsified at any time and in any proceeding, or errors or mistake may be corrected on final settlement. Leake v. Leake, 75 Va. 792; Newton v. Poole, 12 Leigh 112; Shearman v. Christian, 9 Leigh 571; Burwell v. Anderson, 3 Leigh 348; Mountjoy v. Lowry, 4 H. & M. 428; Cavendish v. Fleming, 3 Munf. 198; Kyles v. Kyle, 25 W. Va. 376.
    
    
      
      Account Ordered—Additional Objection to Settled Accounts—Affidavit—Weight.—The proposition set forth in the second headnote was approved in Davis v. Morriss, 76 Va. 35; Williams v. Newman, 93 Va. 727, 26 S. E. Rep. 19. See also, Chapman v. Shepherd, 24 Gratt. 377.
    
    
      
      BilI for Account by Legatee—Overhauling Settled Accounts.—The proposition laid down in the third headnote, that an executor can object to an overhauling of his settled accounts save In so far as they are open to objections apparent on the record when the hill for account does not specify any errors in the said account, was referred to and approved in several subsequent cases. See Blackwell v. Bragg, 78 Va. 540; Seabright v. Seabright, 28 W. Va. 436.
    
    
      
      Same—Answer — Presumed True.—The rule laid down in the forth headnote as to the presumed truth of the answer has been sustained by several subsequent decisions. See Bell v. Moon, 79 Va. 349; Radford v. Fowlkes, 85 Va. 846, 8 S. E. Rep. 817; Ward v. Cornett, 91 Va. 679, 22 S. E. Rep. 494.
    
    
      
      WilI — Legacies — Demonstrative. — In Morriss v. Garland, 78 Va. 223, the court citing the principal case as its authority, said: “A demonstrative legacy is a legacy of quantity, with a particular fund pointed out for its satisfaction, and it is so far general and differs so much from one properly specific, that if the fund be called in or fail, the legatee will not be deprived of his legacy, but be permitted to receive it out of the general assets; yet it is so far specific that it is not liable to abate with general legacies upon a deficiency of assets.” Again, on page 224, the same court continues by saying: “If, however. I entertained a doubt as to the character of this legacy, I should feel constrained by the well-settled rule of construction, which has been fully recognized in this'state, that a legacy will not be held to be specific unless there appears in the will a clear intention to make it so, to construe this legacy to be not specific but demonstrative,” and cites as its authority the principal case and Skipwith v. Cabell, 19 Gratt. 789. See also, on the subject of demonstrative legacies, Myers v. Myers. 88 Va. 134, 13 S. E. Rep. 346; 3 Min. Inst. (2d Ed.) Part I, 589.
    
    
      
      Wills—Construction.—in Taliaferro v. Day, 82 Va. 91, where the testator bequeathed to his wife his estate both personal and real, with all the profits arising therefrom, for life with the privilege of selling any or all of the real or personal estate that she might think proper and investing the proceeds in other property, and further gave the wife the privilege of apportioning the estate between three designated children according toiler discretion, the court held that the wife took an estate for life in all her husband’s estate and was invested with the legal title thereto, not in her own absolute right, but in trust in aid of the purposes of the testator, as expressed in the will; and the three children took vested interest in remainder in free in such shares as should be apportioned to them by the wife under the authority of her husband's will. The court cited, among others, the principal case as authority for its holding.
      In Stokes v. Van Wyck, 83 Va. 733, 3 S. E. Rep. 387, a testator, dying in 1834, limited to his daughter an estate for life, remainder to her issue in fee, and in default of issue, with limitation over to his own heirs. The question arose as to whether the limitation over to the heirs referred to the heirs at the time of his death or of the heirs at the time of his daughter’s death. The court held, that it referred to the heirs living at the time of the testator’s death, and said, that though there might be no decisions in Virginia on the precise question raised in the case, yet, the principle had frequently been recognized and applied by the court in analogous cases. The court then proceeds to cite the principal case. Hansford v. Elliott, 9 Leigh 79; Catlett v. Marshall, 10 Leigh 79; Martin v. Kirby, 11 Gratt 67; Brent v. Washington, 18 Gratt. 526, as authority.
      Vesting oí Remainders.—In Hinton v. Milburn, 23 W. Va. 171, and Woodward v. Woodward, 28 W. Va. 208, the principal case was cited as authority for the proposition that estates in remainder vest at the earliest possible period unless there is a clear intent of the testator to the contrary. See Mills v. Mills, 28 Gratt. 442, for the sequel to the principal case.
    
   JOYNES, J.

The original bill prays that the executors of Nicholas Mills, deceased, may be required to render an account of all their actings and doings as such executors, and that all questions arising upon the construction of the will of the said testator may be adjudicated and settled by the court; and for general relief, &c.

The bill specifies but one complaint against the conduct of the executors : that is contained in the allegation, that the estate in Caroline has been neglected and mismanaged. This complaint is made the subject of comment in the answer of the executors; but after that, we see no more of it throughout the whole progress of the case. The executors exhibit with their answer accounts of their transactions, which had been duly settled, returned, and recorded according to law. Anticipating, however, as it would seem, what parts of their administration were to be made the subject of complaint, though none of them, with the unimportant exception already mentioned, had been specified in the bill, the executors proceed in their answer to give a minute history of those transactions, and to make a general vindication of their administration.

*The executors might have objected to an overhauling of the transactions embraced in their settled accounts, except so far as they might have been open to objections apparent on their face, on the ground that there was no specification of errors in the bill. It is a familiar principle, that the accounts of an executor, which have been regularly settled in the mode provided by law, are to be taken as prima facie correct. They are liable to be impeached on specific grounds of surcharge or falsification to be alleged in the bill, but the court will not decree an account upon a general allegation that the settled accounts are erroneous. This rule not only results from the presumption which the law makes in favor of the correctness of a settled account, but it is necessary to prevent surprise to defendants, and to give them the advantage of their answer, to which they are entitled, on the principles which govern equity practice. When an account has been ordered upon a proper bill, an additional objection to • the settled accounts may be discovered in the progress of the case. It would be attended with inconvenience and delay to require the plaintiff in .any such case to amend his bill for the purpose of alleging the additional objections. It will save time and expense, and generally be attended with no inconvenience to allow the plaintiff to raise the objection before the commissioner with a proper specification in Writing, and to allow the defendant to meet, the objection by an affidavit, giving to the affidavit the same weight which would have been given to an answer if the matter had been alleged in the bill. This is the full extent to which the settled rule of practice can be safely and conveniently relaxed, and this is the extent to which, as I understand it, Judge Stanard meant to go in Shugart’s adm’r v. Thompson’s adm’r, 10 Leigh 434.

The executors, however, made no objection in the Circuit court to the decree, for an account. In the argument here by one of the executors, he insisted that *all the allegations in the answer of the executors, should be taken to be true, unless disproved, and alleged that such was the understanding in the Circuit court. This was not assented to by the counsel for the plaintiff, and there is no evidence in the record of any agreement to that effect. The counsel for the plaintiff insisted that the affirmative allegations of the answer could not be received as true, unless sustained by proof. When this ground was taken by counsel for the plaintiffs in the argument, the counsel for the executors raised an objection, for the first time, to the sufficiency of the bill.

The bill, however, calls upon the executors to render an account of all their actings and doings as executors, and the allegations of their answer, though affirmative, must be taken as true unless disproved, so far as thejr relate directly to the account which they are there x'equired to give. Fant v. Miller & Mayhew, 17 Gratt. 187. There are allegations in the answer, however, which relate to matters not directly involved in, or explanatory of, this account, and therefore, perhaps, not within the scope of the discovery sought by the bill, though having a relation to the subject matter of the account, and important to a correct understanding of the motives of the executors and of the circumstances under which they acted. It may be doubtful how far such allegations of collateral matter ought to be received as true, within the rule laid down in Fant v. Miller & Mayhew.

But even if we should give credit to any allegation of matter of fact contained in the answer, the state of the case will still be deficient in some important particulars. Thus it is important that we sliould know what was the real value of the Leigh street lots. The appraisement put the value at $68,000 in Confederate money. But obviously, the appraisement cannot be relied upon, for at the sale made about two weeks afterwards, the lot brought $128,000. The conclusion must be, either that the propex'ty sold for a great deal more than it *was worth, which is not probable, or that the appraisement was far below the true value. So it is important to know what was the value of Confederate treasury notes when the collections of principal money were made from Morris and Bradford, and also to what extent such notes were then available, according to the common usages of business in Richmond, for the payment of debts payable in specie, and well secured on real estate, or for the purchase of property or otherwise. The court cannot take judicial notice of such facts, and there is no proof in respect to them.

The purchasers of the Leigh street lots, as well as Morris and Bradford, should also have been made parties to the bill, in the absence of any declaration on the part of the plaintiff that he did not intend to hold them responsible. It is the policy and practice of courts of equity not to do justice by piecemeal.

The case must, therefore, go back for the purpose of making these parties, and of ascertaining the facts suggested. When the case comes on to be heard, all the allegations of fact in the answer, whether bearing directly upon the matter of the account or not, should be taken to be true, so far as they may not be disproved, unless the plaintiff shall elect to amend his bill by, alleging his objections to the settled accounts, with proper specifications, according to the established course of pleading in such cases. If he does that, the weight due to the answer which may be filed can be easily estimated. If he chooses not to amend his bill by setting out the specific objections, he cannot complain if the answer is taken as true in all it£ parts unless disproved, or require the court to make nice discriminations between those allegations which, by the rules of evidence, are to be taken as true and those which are not. He will have no right to hold the defendants to the rules of pleading, when he has disregarded them himself.

*1 proceed now to consider the questions raised upon the construction of the will of Nicholas Mills, dec’d, as far as they were decided by the Circuit court, not including, of course, any question relating to matters in respect to which the case is to go back.

The Circuit court held that the bequests made in the 4th clause of the will in favor of the testator’s daughter, Sarah Ann Robinson and her family are to be regarded as demonstrative, and not specific. The distinctions between these two descriptions of legacy are well understood, but it is often very difficult to determine whether a particular case belongs to one class or to the other. The cases present very nice distinctions, but they need not be discussed. It will be sufficient to refer to them as collected and classified in 1 Roper on Legacies, in 2 Redfield on Wills, and in the notes to Ashburner v. Macguire, 2 Lead. Ca. Eq. Referring to these books for the cases and doctrine laid down by them, I will mention only one rule, which is important to be borne in mind, namely, that a legacy will not be construed to be specific unless it appears clearly to have been so intended.

The first bequest made in this clause is of “the sum of $1,080 per annum, payable semi-annually, being the interest on the purchase money of the real estate on Main street, Richmond, sold by me to Charles Y. Morris.” This language does not import a bequest of the annual interest of a debt due to the testator from Morris. It imports, in express terms, a bequest of a sum of money. It refers to the purchase money of the sale to Morris as a fund whose annual interest will provide for the annual payment. It could not be discovered from the will that the money was still due from Morris. It was, in point of fact, still due from him at the date of the will, but if the whole of it had been subsequently collected by the testator, as part of it was, the fund might still have been described as “the *purchase money” of the lot sold to Morris. The description employed did not have reference to the existing shape of the fund, but to the source from which it arose. The collection of the whole of Morris’ debt, therefore, would not have extinguished the fund described, and therefore the collection of part did not extinguish it pro tanto. Precisely the same remarks apply to the succeeding bequests of $450 and $540 per annum. And in relation to the bequest of $1,080 per annum, it is to be remarked that it is directed to. be paid semiannually, while the bonds of Morris, which are in the record, contain no provision for semi-annual payments of interest. The testator may have forgotten at the moment of making the will that Morris’ bonds did not provide, as Hyman’s seem to have done, for semi-annual payments of interest. If he did not then labor under a false impression, the circumstance referred to is conclusive to show that he did not intend a bequest only of the interest on Morris’ debt.

The deeds show that the consideration of the sale to Hyman, on the 25th day of September 1861, was $8,000, while the sum secured by the deed of trust of the same date is only $3,000; so that $5,000 of the purchase money must have been paid. These deeds were executed only three weeks before the date of the will, and such facts were not likely to escape the memory of the testator. If $3,000 was the whole amount due from Hyman at the date of the will, as seems to have been the case, the fact is conclusive to show that the interest on Hyman’s debt was not the subject of the bequest.

The same observations apply to the bequests, after the death of Mrs. Robinson, of the principal sums of $18,000, $7,500 and $9,000. The legacies of these several sums, therefore, as well as of the several annual sums of $1,080, $450 and $540, during the life of Mrs. Robinson, are not specific, but demonstrative; that is to say, they are general legacies, with reference to certain ^particular subjects as the primary fund to satisfy them. The subsequent collection by the testator of a large part of these funds did not have the effect of diminishing the provision made for Mrs. Robinson and her family, as it would if the bequests were held to the specific. It could hardly have been the intention of the testator that by these subsequent collections the provision made for this branch of his family, which seems to have been wholly dependent upon his bounty, should be diminished.

Then, as to the bequest of the “sum of $300 per annum, payable semi-annually, being the interest on $5,000 of State stock of Virginia,” and the subsequent bequest of “$5,000 in Virginia State stock.”

These bequests do not apply to any particular “$5,000 of State stock,” nor are they made dependent upon the testator’s being possessed of that amount of State stock at the time of his death. The bequests are therefore not specific. See the cases collected in 1 Roper on Leg., 205-210. They are general legacies, but they are not demonstrative, because no particular fund is referred to for their satisfaction.

The bequest, after the death of Mrs. Robinson, of “$5,000 in Virginia State stock,” is a little ambiguous, and the question arises whether the testator intended to give $5,000 worth of State stock, or as much State stock as $5,000 would buy, or only to give a quantity of State stock of the nominal value of $5,000. The intention seems to be rendered plain by construing this bequest in connection with the previous bequest of “$300 per annum, being the interest on $5,000 of State stock of Virginia.” The $5,000 in State stock given over after the death of Mrs. Robinson is the same fund referred to in the previous clause as producing $300 per annum interest. This shows that the intention was to give stock of the nominal value of $5,000, according to *its face, and not give as much stock as would amount in real value to $5,000 in money.

Then a further question arises, whether Mrs. Robinson and family are entitled to receive the sum of $300 per annum for life, whether the $5,000 of State stock will yield it or not.

I infer that the testator had, in the arrangement of his testamentary plans, appropriated in his. mind, as the portion of Mrs. Robinson and her family, the three houses’in Richmond, which he sold shortly before the date of his will to Morris, Hyman and Bradford, together with $5,000 of State stock. In his will, therefore, he appropriates to them $5,000 in stock, and also the funds arising from the sales of three houses. The interest on the stock and the interest on these funds are given to Mrs. Robinson and family for life, and the stock and funds are to go over after her death. The $5,000 of State stock is the fund which is to produce the $300 per annum. Mrs. Robinson and her family, therefore, cannot get the $300 per annum unless the $5,000 of State stock will yield that sum in interest. They will receive whatever interest the stock may pay, which cannot exceed six per cent., and any arrears unpaid will be due to them, to be received whenever the State may be able to pay them. The fund here referred to, though spoken of as stock, consists of bonds or certificates of debt of the State of Virginia, bearing six per cent, interest. It doubtless never entered into the mind of the testator that any contingency would happen in which this interest would not be regularly and fully-paid.

In the execution of this clause of the will, therefore, it will be the duty of the executors to invest the sum of $34,500 (being the aggregate of the several sums of $18,000, $7,500 and $9,000) out of the general assets, and to set apart out of the Virginia State stock left by the testator as much as, on its face, represents the nominal amount of $5,000. This money and stock will ^constitute the fund, of which the interest will be applicable to the support, &c., of Mrs. Robinson and her children, &c., during her life, and the capital divisible among her children and descendants after her death. For the raising of the said sum of money, the several funds of purchase money mentioned in the will, will be primarily liable, if that should become important.

It appears from the report of the commissioner, that Nannie M., a daughter of Mrs. Robinson, intermarried with Bdward T. Robinson after the death of the testator, and has since died without- leaving issue, and leaving her husband surviving. The Circuit court held that'the children of Mrs. Robinson, living at the death of the testator, did not take vested interests in remainder in the fund provided by the fourth clause, and that Edward T. Robinson in the right of his wife, of whom he is administrator, is not entitled to any interest-in the said fund. That is the question raised by the second’appeal.

It is a familiar principle, that the law favors the vesting of estates, and where a legacy is given, which is not to be enjoyed in possession until some future period or event, it will, where no special intent to the contrary is manifested in the will, be held to be vested in interest immediately on the death of the testator, rather than contingent upon the state of things that may happen to exist at the period of payment or distribution. Catlett & ux. v. Marshall & als., 10 Leigh 79; Martin v. Kirby, 11 Gratt. 67; Brent v. Washington’s adm’r, 18 Gratt. 526; Doe v. Considine, 6 Wall. U. S. R. 458. And the question is, whether a special intent is manifested in this will, that the legacy in remainder, after the death of Mrs. Robinson, shall vest only at her death in such children and descendants of deceased children as may happen to be then living.

I think that no such special intent is manifested in the will, and that the children of Mrs. Robinson, who *were living at the death of the testator, took immediate vested interests subject to be divested in the events described. See Skey v. Barnes & als., 3 Meriv. R. 335; Leeming v. Sherriatt, 2 Hare’s R. 14; Salisbury v. Petty, 3 Hare’s R. 86; Sturgiss v. Pearson, 4 Madd. R. 411; Brent v. Washington’s adm’r, 18 Gratt. 526; Parker v. Golding, 13 Sim. R. 418.

The interest of Mrs. Nannie M. Robinson was not divested in favor of descendants, because she left none. It was not divested in favor of the surviving brothers and sisters, because she did not die under age and unmarried, and without issue. An estate once- vested will not be divested,, except upon the occurrence of the very event described. Harrison v. Foreman, 5 Ves. R. 207; Sturgiss v. Pearson, 4 Madd. R. 411. The provision in favor of the surviving brothers and sisters, imports, according to the natural sense of the words, that all three of the conditions must exist in order to entitle them to take; and such is the settled construction in such cases. Doe v. Cooke & al., 7 East R. 269; Doe v. Rawding, 2 Barn. & Ald. R. 241.

The construction which I put upon the 4th clause is sustained by the 6th clause. This clause provides that, upon the marriage or attaining to the age of twenty-one of any child of Mrs. Robinson in her lifetime, she may make an advancement to such child, not exceeding “such child’s portion of the said trust fund. ’ ’ This recognizes the title of such child to a portion of the fund, which could not be if the interest is to vest only on the death of Mrs. Robinson in such of her children as may be then living. The provision authorizing Mrs. Robinson to prescribe “terms, trusts, conditions and limitations'’ to such advancement, only indicates the prudent forecast of the testator, and his desire that such arrangements might be made for the benefit and protection of the child as Mrs. Robinson should think necessary *or expedient. This construction makes the 6th clause entirely consistent with the 4th.

It follows, therefore, that Edward T. Robinson, as adm’r of his deceased wife, Nannie M. Robinson, is entitled to her interest in remainder after the death of her mother, in the fund created by the 4th clause of the will.

The decree should be reversed, and the cause remanded for further proceedings.

The other judges concurred in the opinion of Joynes, J.

The decree in the first two causes was as follows:

The court is of opinion, for reasons stated in writing, and filed with the record, that the said Circuit court, instead of proceeding to make a decree upon the merits of the said first mentioned cause of Corbin v. Mills’ ex’ors & als., should have required the plaintiff to amend his bill, so as to make Charles Y. Morris and Thomas Bradford, and the purchasers of the Leigh street lot, parties defendant; and after the said parties had been brought before the court, should have allowed all the parties to take new evidence, and should, if the state of evidence made it proper, have directed an enquiry by a commissioner to ascertain w'hat was the true value of the Leigh street lot at the time of the sale thereof by the executors, and what was the average value of said property, in fee simple, in ordinary times, before the commencement of the late war; and also to ascertain what was the value of Confederate treasury notes, as compared with specie, at the several dates at which the executors received from Charles Y. Morris and Thomas Bradford payments in said notes on account of the principal money due from them respectively to the testator at the time of his death; and to what extent said treasury notes were at said several times available, according to the common usages of business in ^Richmond, for the payment of debts payable in specie, and well secured on real estate, or for the purchase of property or otherwise.

The court is further of opinion that, according to the true construction of the fourth clause of the will of Nicholas Mills, deceased, the bequest therein of the several sums of $1,080, $450 and $540 per annum to Sarah Ann Robinson for life, were not specific legacies of the interest, payable on certain debts, but were demonstrative legacies; that is to say, they were general legacies, payable out of the general assets, but with an appropriation of certain subjects as the primary fund for their satisfaction ; and that the bequest of the several sums of $18,000, $7,500 and $9,000, after the death of said Sarah Ann Robinson, were in like manner demonstrative and not specific legacies.

The court is further of opinion that the bequest, after the death of the said Sarah Ann Robinson, of $5,000 in Virginia State stock is a general legacy of bonds or certificates of debt of the State of Virginia, of the nominal amount of $5,000 on their face, and that the bequest of $300 per annum to said Sarah Ann Robinson for life, is a bequest of the interest payable on said $5,000 of bonds or certificates, and that in case of any failure of the State to pay interest on said bonds or certificates, the said annual sum of $300 is not to be made up out of the general assets.

The court is further of opinion that the children of Sarah Ann Robinson, who were living at the death of the testator, took immediate vested interests in remainder, after the death of the said Sarah Ann Robinson, in the property mentioned in said clause; and that the share thereof, which so vested in Nannie M. Robinson, who intermarried with Edward T. Robinson, passed on her death to her said husband surviving, as her administrator. Therefore, it is decreed and ordered, that the decree in each of these causes be reversed and annulled, *and that the appellants, in the first of the said causes, do pay unto the appellees therein, respectively, their costs by them expended in the cause; and that the executors of Nicholas Mills, deceased, out of the assets in their hands, pay to the appellant in the second cause his costs expended in the prosecution of the appeal here. And it is ordered that these causes be remanded to the said 'Circuit court for further proceedings, in accordance to the foregoing opinion and decree.

The decree in the third cause was as follows :

The court is of opinion that, while the court will take judicial notice of the fact, that on the thirtieth dajr of April 1863, the date of the transaction which is the subject of controversy in this cause, the treasury notes of the United States, and also the treasury notes of the Confederate States, were greatly depreciated in value, as compared with specie, it is not competent for the court to take judicial notice of the rate of depreciation of either currency at any particular time, nor of the extent to which, at any particular time, the treasury notes of the Confederate States were available, according to the common usages of business, for the payment of debts contracted before the war and payable in specie, or in current money of the United States, or for the purchase of property or otherwise.

The court is further of opinion, that inasmuch as the record in this cause contains no evidence upon these points, or either of them, it does not contain sufficient materials to enable the court to make a proper decision upon the questions in controversy. The court is therefore of opinion that the said Circuit court, instead of proceeding to make a decree upon the merits of the controversy in the existing state of the record, should have directed an enquiry by a commissioner, to ascertain what was, on the thirtieth day of April 1863, the value, as compared with specie, of the treasury notes of the United States, and also of the treasury notes of *the Confederate States, and to what extent, at that time, the treasury notes of the Confederate States were, according to the common usages of business in Richmond, available for the payment of debts contracted before the war and payable in specie or in current money of the United States, and well secured on real estate, or for the purchase of property or otherwise, with leave to any of the parties to file additional evidence, as they may be advised, upon any matter involved in the cause, and that the' said decree is therefore erroneous.

Therefore, it is decreed and ordered that the said decree be reversed and annulled, and that the appellees, the executors of Nicholas Mills, dec’d, out of the assets in their hands, pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And the cause is remanded to the said Circuit court for further proceedings to be had therein, in conformity with the foregoing opinion and decree.

Decrees reversed.  