
    *Stark & als. v. Lipscomb.
    November Term, 1877,
    Richmond.
    R dies in 1840, and by his will says, “I give to my niece R, wife of B, the sum of $400, which said sum I wish put to interest, and that paid to R annually , during the lifetime of °her husband B, and at his death, should she be the longest .liver, then I wish the principal paid over to her, said R.” S, the executor of R, paid the interest to R until 1862, when he died. B, the administrator of S, in April, 1863, paid to the administrator de bonis non of R the $400 and interest in Confederate money. R died in 1866, leaving her husband surviving her—
    1. T.eKatees — 11 as ba n d and Wife. — R took an absolute estate in the legacy, to which, upon her death in the lifetime of her husband B, he was entitled.
    Same — Payment to Administrator.— The payment by B to the administrator de bonis non of R, was no satisfaction of the legacy as to B, but the estate of S is liable to pay it, principal and interest, and B being the only child of S, and having ample assets, the decree may be against him personally.
    3. Judgment without Prejudice. — The administrator de bonis non of R not being a party to the suit, it was error to direct an inquiry as to wliat he had done with the Confederate money paid to him by B; but the decree against B should be without prejudice to his right to proceed against the said administrator de bonis non to have an account of it.
    Conveyance by Will — Subsequent Words of Revocation. — In Gaskins v. Hunton, 92 Va. 531, the principal case is cited to sustain the following statement, “It is a settled rule of construction, both in deeds and wills, that if an estate is conveyed, or an interest given, or a benefit bestowed in one part of the instrument, by clear,. unambiguous, and explicit words, such estate, interest, or benefit is not to be diminished nor destroyed by words in another part of the instrument, unless the terms which diminish or destroy the estate before given be as clear and explicit as the terms by which it was created.” Citing also, Rayfield v. Gaines, 17 Gratt. 1; Barksdale v. White, 28 Gratt. 224; Raymond v. Jones, 33 Gratt. 317; 2 Min. Inst. (4th Ed.) 1057.
    This was a suit in equity in the circuit court of King William county, brought in April, 1872, by Bartlett Lipscomb, the former husband of Elizabeth Lipscomb, deceased, Miles B. Lipscomb, his assignee, and others, children of said Elizabeth Lipscomb, deceased, against Bolivar Stark, in his own right and as administrator of *Thomas Stark, who was the surviving executor of Henry Lipscomb, deceased, and his sureties, to recover a legacy of four hundred dollars bequeathed by Henry Lipscomb to Elizabeth Lipscomb.
    Henry Lipscomb died before June, 1840, when his will was admitted to record, and Thomas Stark and Allen King qualified as his executors. He was unmarried, and by separate clauses gave to his nephews and nieces small legacies ranging from two to five hundred dollars, and all these, except that to Elizabeth, were given directly and absolutely.
    The third clause of the will is as follows: “I- give to my niece, Elizabeth Lipscomb, the wife of Bartlett Lipscomb, the sum of four hundred dollars, which said sum I wish put to interest, and that paid to said Eliza annually during the lifetime of her husband, Bartlett Lipscomb, and at his death, should she be the longest liver, then I wish the principal paid over to her, said Eliza.”
    By the last clause of his will he gave to his nephew, Allen King, the remainder of his estate, both real and personal, in fee simple.
    Allen King died before 1860, and Thomas Stark, the surviving executor, paid the interest upon the legacy to Mrs. Lipscomb until 1862. He died in that year, and Bolivar Stark, his only son and heir, qualified as his administrator.
    In April, 1863, the estate of Henry Lipscomb was committed to William M. Turner, sheriff of the county of King William, and in April, 1863, Bolivar Stark paid over to Turner $431.80 on account of the legacy of Mrs. Lipscomb, the payment being made in Confederate money.
    Mrs. Lipscomb died in 1866, and in 1870, Bartlett Lipscomb assigned all his. interest in the legacy to Miles B. Lipscomb.
    *The cause came on to be heard on the 18th of May, 1872, when the court held that Elizabeth Lipscomb, took the absolute right and property in the said legacy of $400, and that on her death her surviving husband, Bartlett Lipscomb, succeeded to it, principal as well as interest remaining unpaid at her death, which was transferred to Miles B. Lipscomb by the assignment to him. And the court further held that the estate of Thomas Stark, deceased, was not discharged from the obligations devolved upon him by the will of Henry Lipscomb in consequence of the alleged payment to William M. Turner, but that estate in the hands of Bolivar Stark, the administrator, was liable for the legacy, principal and interest. And a commissioner was directed to settle the accounts of Thomas Stark, as executor of Henry Lipscomb, of Bolivar Stark, as administrator of Thomas Stark, and of Turner, as administrator de bonis. non of Henry Lipscomb.
    The commissioner returned his report, showing ample assets of Thomas Stark in the hands of his administrator, Bolivar Stark, and that the legacy of $400, with unpaid interest up to November 1st, 1873, amounted to $660. Ble reported an account of Turner’s administration, showing but the one item of $431.80, which he received from Bolivar Stark in April, 1863, and which, scaled, with interest amounted at the same date to $123.35.
    The cause came on to be again heard on the 19th of November, 1873, when the court confirmed the report, and made a personal decree against Bolivar Stark in favor of Miles B. Lipscpmb for four hundred dollars with interest from the 1st of January, 1862, and costs. And the commissioner was directed to inquire and report what disposition Turner had made of the sum of $431.80 turned over to him by Bolivar Stark, administrator *of Thomas Stark, deceased. And thereupon Bolivar Stark, in his own right and as administrator of Thomas Stark and the next of kin of Allen King, applied to a judge of this court for an appeal; which was allowed.
    Montague, FI art and C. White, for the appellants.
    Griswold, Aylett and L- R- Page, for the appellees.
   Christian, J.,

delivered the opinion oí the court.

The question upon which, in the main, the controversy in this case must.be determined, arises upon the true construction to be given to the third clause of the will of the testator, Henry Lipscomb, which is in these words: “Item 3d. I give to my niece, Elizabeth Lipscomb, the wife of Bartlett Lipscomb, the sum of four hundred dollars; which said sum I wish put to interest, and that (i. e. the interest) paid to said Eliza annually during the lifetime of her husband, Bartlett Lipscomb, and at his death, should she be the longest liver, then I wish the principal paid over to her, the said Eliza.”

The testator being unmarried and having no children, devised and bequeathed his estate, real and personal, to his sister and to his nieces and nephews. To all of them (except the bequest to Mrs. Lipscomb) the bequest and devises are without any condition whatever; the legacies being given absolutely and the devises of his land being in a fee simple absolute estate to the de-visees.

The question we have to determine is, what is the nature of the legacy which the testator bequeathed to his niece, Elizabeth Lipscomb? Was it an absolute gift to her, or did she take only a life estate, which, upon her death, reverted to the residuary legatee and devisee?

*The court is of opinion that the bequest to Mrs. Lipscomb was an absolute bequest of the sum of four hundred dollars; which sum, during her life, was to be held by the testator’s executor, and the interest paid by him annually to Mrs. Lipscomb, and at the death of her husband the principal to be paid over to her.

The bequest was an absolute bequest to Mrs. Lipscomb. The condition imposed by the will was not one which affected the character of the bequest, but only provided that during the life of her husband she should receive the interest, and upon his death the principal should be paid to her. But no provision is made in the will for the contingency of Mrs. Lipscomb’s death before her husband. Mrs. Lipscomb died before her husband, and the question now to be determined is, who takes the bequest upon her death. Does it pass to the residuary legatee and devisee, or does it survive to the husband?

We think it is clear that the testator/having by the third clause of his will given to his niece an absolute bequest of four hundred dollars, only limiting his executors to the payment of interest during the life of her husband, and giving the principal to her at his death, conferred upon her an absolute estate, and that at her death this legacy survived to her husband.

This construction is fully sustained by the opinion of this court in Barksdale et al. v. White et als., 28 Gratt. 224, in which this court said: “It is a settled rule in the construction of instruments, that if an estate is conveyed, an interest given, or benefit bestowed in one part by clear, unambiguous explicit words upon which no doubt could be raised, to destroy or annul that estate, interest or benefit, it is not sufficient to raise a mist or doubt from other terms in another part of the instrument. The terms to rescind or cut down the estate or interest before given must be as clear and decisive as the terms by which *it was created.” There is nothing in the provisions o-f this will to limit or control the operation of the third clause of the will. The limitation in that clause as to the disposition of the interest during the life of the husband is a limitation of the quality, but not the quantity of the estate. The estate conferred is absolute, and upon the death of Mrs. Lipscomb survived to her husband, and his assignee is entitled to it.

The court is further of opinion, that it was the duty of Thomas Stark, the executor of Henry Lipscomb, to invest the fund of $400 bequeathed to Mrs. Elizabeth (or Eliza) Lipscomb, in a safe interest-bearing fund, of which she was entitled to the interest during the life of her husband, and to the principal at his death.

The court is further of opinion, that the payment by Bolivar Stark, the administrator of Thomas Stark, to William M. Turner, committee administrator of Henry Lipscomb, of this legacy of $400 in Confederate money, was, as far as the appellee is concerned, a void payment of said legacy. Mrs. Lipscomb had an absolute estate in this legacy, payable in good money; and those claiming under her are entitled to the same. And no payment by Bolivar Stark to William M. Turner in Confederate money can discharge such claim upon the said Bolivar Stark for payment in a sound currency.

The court is further of opinion, that the decree of the said circuit court, while it was correct in holding the said Bolivar Stark personally responsible, because it is shown he had in hands as administrator of Thomas Stark, sufficient assets to pay said legacy, yet said decree, instead of requiring William M. Turner (who was no party to the suit) to settle his account as administrator of said Lipscomb, ought simply to have entered said decree without prejudice to said Stark to institute his suit against the said William M. Turner, to make him liable for the *value of the Confederate money paid by Stark to said Turner.

The court is therefore of opinion that the decree of the said circuit court, after being amended in the mode herein indicated, be affirmed.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that there is no error in said decree, so far as it holds that under the third clause of the will of the testator, Henry Lipscomb, Mrs. Elizabeth Lipscomb took an absolute estate in the legacy of four hundred dollars bequeathed to her, and that upon her death the said legacy survived to her husband, and passed by his assignment to his assignee.

The court is further of opinion that there was no error in said decree declaring that the payment of $400 in Confederate money by Bolivar Stark to William M. Turner, committee and administrator de bonis non of Henry Lipscomb, was a void payment, so far as the appellee is concerned, and did not discharge said legacy; and that said Bolivar Stark is personally responsible for said legacy. But the court is of opinion that the said circuit court erred in so much of said decree as required its commissioner to ascertain and report what disposition William M. Turner, committee and administrator de bonis non of Henry Lipscomb, made of the sum of $431.30, turned over to him by Bolivar Stark, administrator of Thomas Stark.

William M. Turner was no party to the suit, and instead of directing such inquiry by one of its commissioners as aforesaid, the court should have simply decreed against said Bolivar Stark the payment of said legacy with its accumulated interest, without prejudice *to him, to institute, if he so chooses, his suit against the said William M. Turner to recover from him the value of the Confederate money paid to him by said Bolivar Stark.

The court is therefore of opinion that the said decree amended in the particular herein indicated, be affirmed; and the appellee, Miles B. Lipscomb, being the party substantially prevailing here, it is decreed and ordered that the said appellee recover against the appellant, Bolivar Stark, his costs by him expended in the defence of his appeal and supersedeas here; all of which is ordered to be certified to said circuit court.

Decree amended and affirmed.  