
    Lewis and Others, v. Thornton & Wife.
    Decided, Jan. 30, 1818.
    i. Adjudicated Cases — How Far May Be Relied on as Precedents,Adjudged cases can only be safely relied on as precedents, a.s to points actually in issue between the parties, and not as to such as may be deemed extra-judicial; unless indeed in relation to the latter they shall haye ripened into law by various and successive decisions,
    a. Decrees — Literal Interpretation as Precedent.— Where the principles of a decree of the Court of Appeals seem to be opposed to its letter, the literal interpretation ought not to be relied on as a binding precedent.
    3. Legacies  — Charge on Realty — Bona Fide Purchasers. —In this case, a general charge upon the estate of a testator, for the payment of legacies, in aid of a particular fund provided tor that purpose, was not enforced against bona fide purchasers of the lands; after a great lapse of time; because it might admit of a doubt whether, by the terms of the Will, the charge was upon the land itself, or only upon the profits thereof; because the lands might be presumed to be exonerated by requisition of security from the devisees for payment of the legacies; — and, above all, because the testator leit a personal estate abundantly sufficient for that purpose; which estate was wasted by the executors.
    4. Chancery Practice — Costs.—A Court of Chancery ought not to give costs, (against complainants,) to parties erroneously made by its own direction.
    This was a suit instituted in the late High Court of Chancery, in August 1790, by Anthony Thornton and Mary his wife, to recover a legacy left her by the will of her father Philip Eootes, who died in the year 1756. It *was stated in the bill that Philip and Thomas Eeid Eootes qualified as executors, and gave bond with Richard Shackleford and Thomas Thorpe, as their securities; that they had assets more than sufficient to pay the debts and legacies; that Thomas Eeid Eootes died in 1762, insolvent; that Philip Rootes the younger wasted the assets and died intestate, while a suit at law was pending against him, brought by the complainants, upon his administration bond; and that no person administered on his estate: — ■ that before his death he had mortgaged to Richard Shackleford a number of slaves, to indemnify him for becoming his security as aforesaid; that Thomas Thorpe and Richard Shackleford, having both departed this life, the complainant instituted a suit at law, upon the same administration bond, against the executors of the said Shackle-ford; that Zachariah Shackleford, one of those executors, took possession of the estate which Philip Eootes the younger left, consisting of the remaining property of Philip Eootes the elder; that, in 1he progress of the suit against Shackleford’s executors, the cause was by a rule of Court submitted to arbitration, and an award made in favor of the plaintiffs for the sum of 3911. 13s. 4-1. with interest thereon from December 1776; which award was made the judgment of the court — that although the said order of reference was made by consent of parties, that fact did not appear in the record; in consequence of which defect, the judgment was reversed by the General Court. The persons made defendants to the Bill, were Graham Pranks executor of Thomas Thorpe; Zachariah Shack-leford surviving executor and legatee of Richard Shackleford, John Harwood administrator of William Shackleford the deceased executor and legatee, and Francis Gaines and Frances his wife, and Richard Taliaferro, and Elizabeth his wife, who were also legatees of the said Richard Shackleford; all of whom were called upon to account severally for the property which had come to their hands, out of which the plaintiffs prayed satisfaction of their legacy.
    Gaines and Wife demurred to the Bill; alledging that the plaintiff had a complete remedy at law; but the Chancellor overruled the demurrer; whereupon, they filed their answer, rendering an account of so much of the estate of Richard Shackleford as they had received.
    *Zachariah Shackleford, by his answer, rendered a similar account; but denied that any part of the estate of Philip Rootes ever came to his hands. — He stated that he had been informed and believed, the greater part of that estate was taken possession of and disposed of by a certain John Rootes; and that some part of it was taken and carried into Amherst County, by one Edmund Wilcox, who forgot or did not choose to return it; that most of the slaves mortgaged by Philip Rootes to Richard Shackleford as aforesaid, were sold by Rootes hirnself, or died before him; so that, at his decease, only two of those slaves were to be found. He denied that he ever assented to the submission to arbiiration, Which was made, when he was under age, and his brother William was the acting executor at that time; but he admitted that, as agent lor William, he attended the referees. He claimed also some credits, for payments to the plaintiffs by Philip Rootes the younger; and contended that no action, either at law or in equity, could be maintained against him, until it should ha.ve been established by a previous decision that some default, subjecting the securities, had been committed by the executors of Philip Rootes the elder.
    The Chancellor having referred the accounts to a Commissioner, a, report was returned, in conformity with which, a decree was pronounced, in May 1796, in favour of the plaintiffs, for 3911. 13s. 4d. principal, and 721. 13s. 2d. interest to the 15th of May 1783, besides interest from that day, on the said principal; and it was ordered that, towards satisfaction thereof, the defendant Zachariah Shackleford, out of the estate fn his hands to be administered of his testator Richard Shackleford, should pay 3781. 4s. 3d. with interest thereon from January 1789; the defendant John Har-wood, out of the estate in his hands to be administered of William Shackleford, 761. 11s. with interest thereon from the 1st day of Jan. 1776; and tne defendant Richard Taliaferro, 241. 18s. Sd. with interest thereon from Nov. 1773; reserving to the two last mentioned defendants, who had not answered, liberty to shew cause Against this decree in the term next after being served therewith ; — -and also reserving liberty to the plaintiffs to resort to *the court, in case the principal and interest due should not be satisfied by those defendants, to recover the deficiency against the other defendants.
    In May 1799, the Chancellor declared so much of the said decree as related to Richard Taliaferro, to be irregular, (since no previous process had been served upon that defendant,) and directed new process; but made the decree absolute against John Harwood, who had shewn no cause to the contrary.
    By virtue of a farther order of account, another Report was made by a Commissioner in December 1800; whereupon, it was decreed, on the 2d of June 1801, that Elizabeth Taliaferro administratrix of Richard Taliaferro (who had departed this life,) should pay to the plaintiffs the sum before decreed against him, and the farther sum of 1571. 4s. 5d., with interest on 871. 15s. Od. from October 1795, until payment; and that the defendant Francis Gaines should also pay 1651. 3s. 4d., with interest upon 921. 5s. Od. from the period last mentioned, until payment, towards discharge of the principal and interest recovered by the decree of May 14th, 1796:— and the suit was dismissed as to all the other parties, the plaintiffs no farther prosecuting.
    From this decree an appeal being taken by the defendants Elizabeth Taliaferro and Francis Gaines, the Court of Appeals pronounced the following opinion and decree, the 5th of May 1806.
    ‘ ‘The Court is of opinion, that the testator Philip Rootes having set apart a particular fund for the payment of his debts and legacies, and directed that his whole estate should be chargeable with the payment of the latter, in case that fund should not prove sufficient ; and having also required that his sons, to whom he devised his lands and other estates, either in possession, or when they should attain the age of twenty-one years, or in remainder after the death oí his wife, should, upon receiving their parts of his estate, give security, (without naming any person to whom such *security should be given,) for the payment of their proportional parts of their sisters’ fortunes;(l) and having constituted two of those, sons, then of full age, his executors,' and a third son John, when he should come of age, his executor likewise ; the requisition of security from those sons, respectively, on receiving their estates, was thereby frustrated; but security ought to have been demanded, by those executors, of the testator’s fourth son George, when he should receive from them the estate devised to him; and, in default of taking such security, the executors or executor, by whom the estate was delivered, thereby made himself responsible for George’s proportion of his sisters’ fortunes ; and all the four sons of the testator, viz, Philip, Thomas Reid, John and George, their heirs and representatives respectively, into whose hands any of the estate of the testator Philip deceased was devised, or came, and any person whatsoever to whom the real estate of the said testator may have come by gift or purchase from either of those sons or their heirs, except bona fide purchasers of the estate devised to his .son George, were and are liable to contribution for the payment of the testator’s daughters’ fortunes, in case of any deficiency of the fund set apart by his Will for the payment thereofthat the securities of the executors, Philip and Thomas Reid Rootes, are liable in the first instance, only for the misapplication or wasting of the funds so constituted by the testator for payment of the said legacies, in case those executors, their heirs or representatives, or those into whose hands, those funds shall be found to have been taken, shall be unable to make good the same; but, in case those funds shall be found insufficient for the payment of the said legacies, so as to render the estates descended or devised to the testator’s sons, Philip, Thomas Reid, John and George, liable to a proportionable contribution for the payment of those legacies, and if it shall be found that the said executors neglected to take such security from George, *upon delivering his estate to him, and that the estate of the said George, which can now be resorted to for his proportional contribution, is insufficient, and that the estates or estate of the executors or executor, by whom the estate of George was delivered into his possession, is also insufficient to discharge the said George’s proportion, then the said securities of the said Philip and Thomas Reid will be further liable to make good the said George’s proportion of such contribution, and no farther; and the balance, if any, which may thereafter remain unpaid, must be raised by contribution from those into whose hands the estate of the testator has come, by descent, devise or gift from the testator; or either of his four sons before mentioned, or as executor, or executor in his own wrong, or as administrator or trustee for either of them, or into whose hands his lands may have come by descent, devise or purchase, (except bona fide purchasers of the estate devised to George as aforesaid,) according to the value thereof. And it is further the opinion of this Court, that, in case it shall be found that the sureties of the said executors are liable according to the principles herein before staled, the heirs, executors and legatees of those sureties, ■respectively, ought to be called upon to contribute their proportional parts, so far as the estate to them descended, devised, or otherwise come to their possession, may extend; the legatees and representatives of the said Richard Shackleford being (alone) chargeable with the amount of the value of the slaves, or other effects, which he or they received from the said executors, or either of them, towards indemnifying him on account of his surety-shix> aforesaid.” The decree was therefore reversed, and the cause sent to the Superior Court of Chancery held in Richmond, to be proceeded in according to this opinion.
    In that Court, the cause was directed to be placed on the rule docket, and leave was given the plaintiffs to amend their Bill; whereupon, they filed an amended Bill, ’’stating sundry additional circumstances, and making many new parties, among whom were Catherine Lewis and others, (purchasers of lands of, and under Philip Rootes, Thomas Reid Rootes and John Rootes.) Various proceedings, which need not here be detailed, were afterwards had in the Superior Court of Chancery.
    The grounds of the subsequent decree of this Court are sufficiently set forth in the opinion and decree itself.
    The cause, being transferred to the Court at Fredericksburg, (under the Act of Assembly,) came on to be heard, September 29th, 1815, upon the bill and amendments thereto, the answers of sundry defendants, exhibits, and several reports of Commissioners, and exceptions thereto taken by some of the defendants; whereupon, Chancellor Nelson, over ruling all the exceptions, except one which claimed an additional credit for 1101. paid on account of the legacy, “and being of opinion, since it appears that Philip Rootes, one of the executors of Philip Rootes the elder, paid two of the legacies devised to the daughters of his testator respectively, and that the specific fund, appropriated by the Will of the said Philip Rootes the elder for the payment of debts and legacies, was exhausted in the payment of debts, and that the said executor was a large creditor of his testator’s estate upon his administration account, that therefore the securities of the qualified executors of Philip Rootes the elder, and their representatives were not, and are not now responsible for any portion of the legacy due to the female plaintiff, and that the holders of the real estate of which Philip Rootes the elder died seised, who derived their titles, respectively, from his three sons Philip, Thomas E. and John, are liable to contribution for the payment of the value of said legacy, according to the reported value of the lands respectively so held by them; it was therefore decreed and ordered that, unless the defendants Catherine Lewis and others, purchasers of those lands as aforesaid, should, respectively, pay to the plaintiffs certain sums of money, in the decree specified, on or before the 1st day of April 1816, persons named as Commissioners, should, after advertising the time and place of sale, *for three weeks successively» in some newspaper printed in Fred-ericksburg, sell to the highest bidder for cash, so much of the lands, so held by each of the said defendants, of which the said Philip Rootes the elder died seised, as would be sufficient to pay the respective sums decreed to be paid by the said defendants respectively, and should pay the same to the plaintiffs, or their agent; that the Commissioners acting herein should convey the lands sold to the purchaser or purchasers thereof, at his or their own proper costs and charges, and report their proceedings to the Court.”
    Prom this Interlocutory Decree, Catherine Lewis and the other defendants who held lands under John Rootes, were allowed an Appeal by the Chancellor.
    Wirt and Wickham for the appellants.
    Green for the appellees.
    
      
       Aéjindicated Cases — How Far May Be Relied on as Precedents. — Decisions are precedent as to points actually in issue between the parties, Trustees v. Guthrie, 88 Va. 145. lü S. it. Rep. 318, reciting the principal case.
      Appeals — Parties Standing on Same Rights — Effect on Parties Not Appealing. -In Walker y. Page. 21 Gratt. 853, it is said: "The rule established by the practice and decisions of this court may be stated to be this: where the parties stand upon distinct and unconnected grounds, where their rights are separate, and not equally affected by the same decree or judgment, then the anneal ol onewill noL bring up for adjudication the rights or claims of the other. Tate v. Liggat, and Liggat v. Morgan, 2 Leigh 84, 107. But where the parties appealing and the parties not appealing, stand upon the same ground, and their rights are involved in the same question, and equally affected by the same decree or judgment, this court will consider the whole case, and settle the rights of the parties not appealing, as well as those who bring their case up by appeal. Lewis v. Thornton, 6 Munf. 87, 87; Lenows v. Lenow, 8 Gratt. 319; Liggat v. Morgan. 2 Leigh 84; Purcellv. McCleary, IflCratl. 246.”
      To the same' effect, the principal case is cited in Saunders v. Griggs, 81 Va. 517; Ward v. Brown (W. Va.),44S. ⅞ Rep. 491. The principal case is distinguished in Tate v. Ligitatt, 2 Leigh 108,109. See monographic note on “Appeal and Error” appended to Hillv. Salem, etc., Turnpike Co., 1 Rob 263.
    
    
      
       Legacies. — See monographic note on "Legacies and Devises” appended to Early v. Early. Gilm. 124.
    
    
      
       Costs. — See monographic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720,
    
    
      
       Note. These provisions appeared in the Will and Codicil. — Note in Original Edition,
    
   January 30th, 1818,

JUDGE ROANE) pro-

nounced the opinion of this Court.

The Court is of opinion, that those persons who have been made parties to this suit in consequence of the Decree of this Court pronounced on the fifth of May 1806, are not bound by that decree, either as a decree, or as a precedent, and are now at liberty to shew that the liability to pay the legacy in question, supposed thereby to exist against them, as purchasers of lands under the brothers Philip, Thomas R. anl John Rootes, does not exist. It is not binding on them as a decree, because they were no parties to the suit vfhen it was pronounced; it is not binding on this Court as a precedent, because cases adjudged between other parties can only be safelj' relied on as precedents, as to points actually in issue between those parties, and not as to such as may be deemed extrajudicial; unless, indeed, in relation to the latter, they shall, by various and successive decisions, have ripened into law. This would be the case, even if the facts appeared the same after the new parties made, as they did when the former decree was pronounced. In this case, however, as it respects the present appellants, who are understood to be persons holding as bona fide purchasers under John Rooies, altho’ the decree may bear the interpretation, '"'taking it literally, that the mere nomination of John as an executor, frustrated the requisition of the Codicil that he should give security on receiving his estate, yet even that is doubtful. Neither the original bill, nor the answers thereto, mention John’s nomination as executor, The Bill merely states, that Philip and Thomas R. were appointed Executors, and qualified and gave securities, the representatives of which securities are sought to be charged; and the answers admit these facts.

The Decree states, that the three sons were appointed Executors, and that thereby the requisition of security from those sons was frustrated ; but that security ought to have been demanded by those executors of the testator’s fourth son George, when he should receive from them the estate devised to him, and that, in default of taking such security, the Executors made themselves responsible for George’s proportion. Now, if John, ne.ver qualified as Executor, (and this is positively averred in the answers of many of the defendants,) he could neither be the person who was to deliver the estate to George, nor could he be in default for not taking a bond which he had no right to require; any more than John Robinson and Humphrey Hill, who were also named as Executors, but who never qualified, could be made responsible for such default. The Court may have supposed, therefore, that it might thereafter appear that John had qualified: but, be this as it may, the principle of the Decree is to throw the responsibility on the party guilty of default; and, if the qualified Executors had as much right to demand security of John, on receiving his estate, as they would have had to demand security of him had he purchased at the sale of the estate, and if no Court would have decreed a delivery to him of his estate, without security, if demanded by the Executors, which is believed to be undeniable, then they were equally in fault in' not taking security from him, as from George. Suppose neither of the sons had qualified; but that Robinson and Hill had qualified, or- administration with the will annexed, had been granted; ought those Executors, or the administrator to have delivered over the estate to Philip, Thomas *R. and John, without security, merely because they had been named as Executors? Why shall the mere nomination, made too in the body of the Will, of the sons as Executors, frustrate the codicil, made afterwards, requiring security? Not because the two provisions can not stand together; for, if so, the Codicil, which speaks of all the sons, would abrogate their appointment as Executors. It must be on the ground that, when those Executors qualify and give bond, which invests them with the whole personal estate, and secures it’s faithful application according to the Will, no farther security was necessary. The Will having charged the whole*estate with the payment of these legacies, altho’ it had previously given some specific legacies and the residue of the slaves and personal estate to the sons, ought, as to the slaves and personal estate, to be considered as a bequest of the residuum to the sons after payment of debts and legacies, and which the executors would be bound to see so applied, except so far as they might be eased therefrom by the codicil, which authorises a delivery over, on bond being given. This, where it could be done, if good security was taken, would exonerate thfem from actual payment; but, where that could not be done, as in case of qualified Executors, who could not give bonds to themselves, the proper application of the fund must be made in the course of administration, ‘and from which, or for default in not taking bond, their securities would be answerable. The principles of the decree would then seem to be at war with it’s letter, if it will bear the literal interpretation insisted on; and, consequently, it would be unsafe to rely on that literal interpretation as a binding precedent. Again, the amount of .¡.he personal estate, for which the Executors were responsible, was not shewn when the decree in question was pronounced, nor does it now fully appear; the Executors having been in default in not returning an inventory; but it sufficiently appears, (especially as no inference very favourable to executors making the default last mentioned will be drawn,) that it was considerable. The Will speaks of various plantations, with stocks of horses, cattle and hogs thereon; and it gives to his wife one fourth part of his slaves during life. The mortgage *given by Philip Rootes one of the Executors to Richard Shackleford his security, to indemnify him, is for ten slaves, said to be those held by the widow. Whether these were all that she held under the Will, is not stated; but, if they were, this would make the whole number of slaves about forty. This mortgage was ample to indemnify the security, had he not permitted that property also to be squandered. When these things now appear, shall it be said that innocent and bona fide purchasers of the real estate, (if even the original purchasers were now before the Court,) shall be held liable, after this great lapse of time, in exoneration of the securities of the Executors, who permitted their principals rapidly to dilapidate and waste a large real and personal estate; for it appears they both died insolvent, at an early day; and when, too, one of those sureties, (as it now appears,) took ample counter security for his indemnity, as is aforesaid.

According to these principles, the decree in question ought not to prejudice the purchasers under Philip and Thomas R. Rootes; and, although they have not appealed from the interlocutory decree in this case, yet these principles will equally apply to them when a final decree shall be pronounced.

The principles now established are, that all persons claiming any estate under Philip and Thomas R. Rootes the executors, or under John and George Rootes, for their proportional shares, (except bona fide purchasers, under them or either of them,) if any such can be found, should be, in the first place, liable to the demand of the ap-pellees ; and that the heirs, executors and legatees of the sureties of the said executors are liable in the next place, and ought to be called upon to contribute their proportional parts, so far as the estate, to them descended, devised, or otherwise come to their possession, may extend; the legatees and representatives of Richard Shackleford being alone chargeable with the amount of the value of the slaves, or other effects, which he or they received from the said Executors, or either of them, towards indemnifying him on account of his surety ship, and which has not been applied, in • satisfaction of the slegacy in question, or any other demand to which he was subject as surety aforesaid.

As the lands of the appellants, the Court is of opinion, that they ought not to be now charged, after the great lapse of time which has taken place; because it might admit of a doubt whether the charge was so much upon the land itself, by the terms of the Will, as upon the profits thereof ; because those lands might be presumed to be intended to be exonerated, b3r the requisition of security in the codicil; and because, above all, the ■testator is shewn to have left an abundant personal estate to satisfy the legacies. It is greatly to be regretted that, so much delay and expense should have taken place, in consequence of the former decree of this Court, and, especially, as it regards the appellees, who were satisfied with the decree formerly appealed from; but this hardship can not justify a decree against persons not liable; any more than, in ordinary •cases, where parties are directed to be made, against whom a decree may finally be found improper or unnecessary. Courts of Chancery lessen this evil in some degree, by refusing to give costs, against complainants, to parties made by their direction, and by throwing the general expenses of such enquiries on* the parties at whose instance, or for whose benefit, such en-quiries and costs were instituted and incurred; — which the Court thinks ought to be done in this case.

The Decree is therefore reversed with costs, and the cause remanded, to be farther proceeded in according to the principles above declared. 
      
       Note. The words of the Will were, “which money must be raised out of my whole estate, alter the debts due to me are got in, and the lands and other things, above directed to be sold, are applied to that purpose; and 'tismy desire that, after my wife’s, mj'son Philip's and my son Thomas Reid's parts are taken out, the rest of m3' estate be kept together until the first of December after my son John shall arrive to lawful age. and then his part to be delivered to him; and when my son George comes to lawful age, I desire his part may be delivered to him; and, if any money remain after my debts and legacies are paid, I desire it may be equally divided between my four daughters. The Codicil directed “that the stock of hogs, cattle <&c. on his plantations in New Kent, and also his three lots in Fredericksburg, be sold for the payment of his debts and legacies.'’ — Note in Original Edition.
     