
    Moore v. Hilton and Others.
    February, 1841,
    Richmond.
    (Absent Brooke, J.)
    Interlocutory Decree — Introduction of New Evidence.— Upon the construction of the statute of March 1826, Supp. to Rev. Code, ch. 103. §9, Held. that after an interlocutory decree upon a hearing, deciding the questions of fact in issue between the parties, neither party has an absolute right to introduce new evidence touching the questions so decided ; the introduction of such evidence depends on the sound discretion of the court and its judgment on the sufficiency of the excuse offered Cor the failure to have it before the court when the cause was heard and the interlocutory decree pronounced ; and such excuse may be offered, either on motion upon notice, or upon a petition, for a rehearing of the cause.
    Same — Same.—But new evidence may be introduced before a commissioner touching any matter of account directed by the interlocutory decree, or before the court touching any matter of account which the court ought by the decree to have referred to a commissioner.
    ^Advancement — Direction ' to Deduct from Shares of Children Advanced — Case at Bar.—
    Testator having real and personal estate, by will, after mentioning advancements made to two of his children, directs that the same shall be deducted from their shares of his estate when a division thereof shall be made among all his children, and then directs his land to be sold, and after taking of the principal, a fund for education of younger children, an equal division among all his children : and by codicil, desires that the proceeds of sale of his land shall be equally divided among all his (seven) children ; and afterwards, states an account on his books, of an j additional advancement made to a daughter before advanced, and subjoins a direction that the whole amount advanced to that child shall be deducted from her share of his estate : Held, that the whole amount of advancements, as well those mentioned in the will as that made subsequent to the codicil, should be deducted from the shares of the children advanced, of the whole estate real and personal without discrimination.
    Same — When Satisfaction of Legacy. — An advancement to a child made subsequent to a will, is to be taken as a satisfaction of a legacy to that child, pro toto or pro tanto, according to its amount.
    Executors and Administrators — Sale of Realty — Purchase by Executor at His Own Sale. — Testator directs, that his land shall be sold on such credit as his ex’ors shall think best for the interest of his children, to whom he bequeaths the proceeds ; ex’or advertises land for sale at auction in 1825, without specifying the terms of sale ; offers it for sale, and at the sale requires near one-half of purchase money to be paid in cash, and residue in two eqnal annual instalments ; and purchases at his own sale ; Held, the ex'or’s sale and purchase was not a due performance of his trust; and he may, at election of cestuis que trust, be rightly required to keep the land, and pay the purchase money for which he bought it, and as much more as the land would have sold for, if it had been offered for sale on the usual terms of one, two and three years credit.
    Same — Same—Same—Reference to Commissioner. — But the difference between the price the land would have brought on a sale on such credit in 1825, and that which it brought on the terms on which it was then sold and purchased, should rather be referred to a commissioner to be by him ascertained, than to a jury upon an issue directed for the purpose.
    John Hilton, by his last will and testament, dated April 1817, after directing- that his wife’s dower should be “allowed” agreeably to the laws of Virginia, devised and bequeathed as follows — “As I have given to my son William ¿£233. also to my daughter Elizabeth ;£186. it is my desire, that the above sums shall be deducted from their parts of my estate when a division *shall take place among all my children that I may have at my decease. It is my will and desire that my negroes be divided among my children. My land I desire should be sold on such credit as my executors hereafter named shall think best for the interest of my children. It is my express will and desire, that all the children I may have at my decease that are not raised and educated, that my executors shall take of the principal as much as they shall think sufficient to do it, and then divide equally among the whole of them.” And by a codicil, dated September 7, 1820, after some provisions immaterial to the present controversy, he added— “It is my wish and desire, that the money arising from the sales of my land be equally divided among my children, William, Elizabeth Dogan, Robert, Anne, Henry, George and Susan, and that Henry, George and Susan’s part thereof be put out on interest, and so secured that they shall receive it when they come,to lawful age.” The testator died not long after the codicil was made; and Reuben Moore, one of the executors named in the will, proved the will and codicil in the county court of Culpeper at December term 1820, and took upon him the execution thereof.
    3
    The testator’s daughter Elizabeth Dogan was the wife of Henry Dogan. And upon the testator’s books there was an account stated of the several articles of property he had advanced to that daughter which made up the sum of ;£186. mentioned in the will as having been advanced to her; and then there was charged to her, under date October 6, 1820, a further advancement of property to the amount of ;£150. which was added to the former advancement of ¿£186. making the whole amount advanced ^336. And to this account of advancements, the testator subjoined — ‘ ‘The above articles I have given to my daughter Elizabeth ; which ,£336. I wish to be deducted from her part of my estate at my decease, when a division'will take place among all my ^'children.” But this account of advancements and the writing thereto subjoined, was not proved as testamentary paper, along with the will and codicil before mentioned.
    There was a division made of the testator’s personal estate by commissioners under an order of the county court of Cul-peper. The commissioners estimated the whole net amount of the personal estate (including the advancement of ,£233. to the testator’s son William, and the advancement of ;£336. to his daughter Elizabeth) at 730S dollars 77 cents; of which they allow the widow her thirds, and then divided the residue, 4870 dollars 51 cents, among the testator’s seven children and legatees, giving each a share of 695 dollars 77 cents. Deducting this sum of 695 dollars 77 cents from 1120 dollars, the amount advanced to Elizabeth Dogan, it appeared she had received an excess above her share of 424 dollars 33 cents, which the commissioners reported to be due from her, “to bear interest” (they added) “until the money from the real estate should become due.” And according to this division, the executor •(as he alleged) paid all the legatees to whom money was due on account of the personal estate, their full shares.
    The testator’s land was a parcel of 442 acres in the county of Culpeper; of which 147 acres was laid off and assigned to the widow for her dower, leaving 295 acres. The executor advertised the testator’s land for sale, as early as January 1821, on a credit of one, two and three years; but (as he alleged) was then unable to effect a sale.
    In.1822, two of the testator’s sons, William and Robert, sold and conveyed to J. C. Gibson all their interests in their father’^ real estate (their reversionary interests in the 147 acres that had been assigned to their mother for her dower, and their present interests in the remaining 295 acres) for the nominal price of 1028 dollars, but the greater part of the purchase money was *paid by a conveyance of Kentucky land, which, as it turned out, was estimated above its value. And in 1823, Gibson sold and conveyed to Moore, the testator’s executor, the interests he had purchased of William and Robert Hilton in the 295 acres of land, but not their reversionary interests in the 147 acres of dower land : the price Moore paid him was 840 dollars; and he professed to make the purchase, in order that he might have the power of selling the whole parcel of land, altogether, as being more advantageous to the legatees than a sale thereof in parcels. He paid the purchase money out of the funds of the testator’s estate; but he afterwards accounted to the legatees for.the funds he had so applied, as part of his testator’s personal estate, and so became entitled to, or claimed, his purchase of these interests on his own account.
    The 295 acres of land (it seemed) was partly rented out by Moore, and partly cultivated by himself, till 1825. In that year, he published an advertisement, under date August 6, 1825, in these words — “Eor sale — The lands whereon the late John Hilton resided containing 442 acres within two miles of Culpeper courthouse, subject to the widow’s dower, is now for sale. Any person wishing to purchase, may see the land and know the terms by applying to the subscriber, who will treat for the same by private contract; and if not sold before the 26th August, it will on that day be offered for sale on the premises to the highest bidder by Reuben Moore ex’or of John Hilton deceased.” — “The sale of the above property is postponed till the first day of September Culpeper court, when it will take place before the courthouse door. (Signed) R. M.”
    The land was accordingly offered for sale on the first day of the September county court of Culpeper 182S, at the courthouse; and the terms of sale then and there announced, were, that 1386 dollars of the purchase money would be required in cash, and the balance, in *instal-ments, in one, two and three years; and, upon those terms, the land was sold at auction. It was cried out to J. W. Marshall, as the highest bidder, at 6 dollars 75 cents per acre, upon an understanding, however, between Marshall and Moore, that Marshall might take the purchase to himself, at his option, or that Moore would take it off his hands: in fact, Moore, on the same day, agreed to take the purchase, and thenceforth regarded and treated the land as his own.
    In November 1828, Henry Hilton and Henry Dogan and Elizabeth his wife exhibited a bill in the superior court of chancery of Fredericksburg, against Moore the executor of the testator John Hilton, James Garnett and Anne his wife, George and Susan Hilton, and Gibson who had purchased the interests of William and Robert Hilton, co-legatees of that testator — setting forth the will of John Hilton, and the direction therein contained, that his land should be sold on such credit as his executors should think best for the interests of his children, and the proceeds divided among them — and charging, that Moore had delayed and neglected, for more than five years after his qualification as executor, to make sale of the land, though he might easily have effected a sale upon advantageous terms, and had in fact rejected offers of prices which he ought to have accepted ; prices much exceeding that at which he himself afterwards purchased, and now claim to hold the land; that Moore, disregarding the plain terms of his testator’s will, which directed that the land should be sold on credit, and violating the trust and confidence reposed in him, at length advertised the land to be sold for ready money, at a time when real estate could not be sold for cash without great sacrifice, and purchased it himself for 6 dollars 75 cents per acre, much less than the land would have sold for, even at that unpropitious juncture, if offered for sale upon such credit as is usual, and as in the exercise of a sound discretion ought to have been ^'allowed; that though the land was cried out to Marshall as the highest bidder, he was only the agent of Moore, who had ever since continued to hold and enjoy it as proprietor, and now refused to settle with the plaintiffs upon any other principle but that of an unqualified transfer of their interests to him upon his payment to them of their respective shares of the proceeds of that illegal and fraudulent sale; that the plaintiffs were advised that the sale was invalid, and that they had a right to have a resale made according to the directions of their father’s will, and to hold Moore personally responsible for the injury they had sustained by depreciation in the value of the land during the time it remained unsold, owing to his unwarrantable delay and gross neglect, and for the profits of the property in the same interval. And the bill prayed, that the land should be resold and a proper distribution made of the proceeds, and that Moore should be held accountable for all loss and injury sustained by the parties concerned by reason of his official neglect or misconduct, and general relief.
    Moore, in his answer, gave a history of his transactions in regard to the land of his testator, not materially variant, in substance, from the facts above stated, except in this, that he alleged, that instead of his having sold and purchased the whole parcel of 442 acres subject to the incum-brance of the widow’s right of dower in 147 acres thereof, he had in fact sold only the 295 acres exclusive of the widow’s dower land, and had purchased the 295 acres at 6 dollars 75 cents per acre, and that the plaintiffs nevertheless had insisted that he should account for and pay to them their shares of the proceeds of the whole 442 acres incumbered with the dower right, at the same price per acre. He claimed the interests of the legatees William and Robert Hilton, in the 295 acres, under his purchase from Gibson, who had purchased from them. He said, he had also purchased of James Garnett and Anne his wife, all her interest in '*the land; and that he had settled with Garnett as guardian of the legatee Susan Hilton, and paid him all her share of the personal and of the proceeds of the real estate, except a small balance of the latter. And as to Dogan and wife, after adverting to his testator’s will, directing that ,¿186. should be deducted from Mrs. Dogan’s share of his, estate, he set forth the account stated in the testator’s books of advancements made to her, shewing an additional advancement of ¿(150. made to her subsequent to the codicil, and the testator’s direction subjoined to the account, that the whole ¿(336. should be deducted from her part of his estate; and then he insisted, that as, after giving Dogan and wife full credit for her share of the testator’s personal estate, she had received by way of advancement an excess of 424 dollars, this sum ought to be deducted from her share of the proceeds of the real estate.
    The defendant Gibson answered, and,' shewed the conveyance of William and Robert Hilton to him of all their interests in the real estate of their father, as well their present interests in the 295 acres of land as their reversionary interests in the 147" acres assigned to their mother for her dower, and his own sale and conveyance to Moore of the interests he had bought of those two legatees in the 295 acres ; and that he was still entitled to their reversionary interests in the dower land.
    None of the other defendants appeared; and as to them the bill was regularly taken pro confesso.
    Many depositions were taken and filed by the plaintiffs and the defendant Moore, touching two questions of fact. The purpose of the evidence on the part of the plaintiffs, was to prove, 1. that Moore had sold and purchased the whole parcel of 442, acres subject to the incumbrance of the dower right of the widow in 147 acres, at 6 dollars and 75 cents per acre; and 2. that Moore intended, contrived and practised, an actual fraud in the sale of the land, with .a view to purchase it himself *at a price below its real value, and below what, if he had acted in good faith, he might have obtained. And the purpose of Moore’s evidence was to prove, that he had sold and purchased only the 295 acres at that price, exclusive of the 147 acres' which had been assigned to the widow for her dower; and to vindicate himself from the charge of actual and wilful fraud imputed to him.
    No proof was exhibited, of Moore’s purchase from Garnett and wife of her interest in the real estate of her father, or of Moore’s settlement with the guardian of Susan Hilton, and payment to him of that legatee’s share of her father’s estate, real as well as personal, as Moore alleged in his answer he had done.
    Pending the suit Susan Hilton married Ambrose Jeffries and by consent, Jeffries and wife were made parties.
    The cause having been transferred to the circuit superior court of Culpeper, that court, on hearing, at November term 1836, made an interlocutory decree, declaring, that Moore’s sale of the land devised by his testator’s will to be sold, was of the whole parcel of 442 acres subject to the widow’s right of dower in the part thereof which had been assigned to her; and that the sale was irregular and illegal, both because it was made upon terms not authorized by his testator’s will, and because Moore himself (the trustee) had become the purchaser at his own sale. And the court having put the plaintiffs to their election, either to have the sale set aside, and the land re-sold upon a proper credit as directed by the will, and to have an account of the profits of .the land since the assignment of the widow’s dower, or to compel Moore to take the whole 442 acres of land so purchased by him subject to the incumbrance of the widow’s dower, and account for the purchase money at the rate of 6 dollars 75 cents per acre for the whole 442 acres, and such further sum, if any, as the same would have sold for on the first day of the September county *court of Culpeper 1825, if it had been then sold upon credit of one, two and three years, the purchaser giving his bonds for the annual instalments of the purchase money, with personal surety for the first instalment, and the title to be made when the first instalment should be paid, and the other instal-ments secured by a deed of trust mortgaging the land. And the plaintiffs electing the latter alternative; and it appearing, that no part of the purchase money of the land had been paid to them; and it. being alleged, but not proved, by the defendant Moore, that he had purchased of Garnett and wife their interest in the land, and of Garnett as guardian of the legatee Susan Hilton her interest in the greater part of the same, and it not appearing whether any thing had been paid to the legatee George Hilton (who was an absent party) or whether his interest had been purchased by Moore: therefore, the court decreed, that Moore should pay to the plaintiff Henry Hilton, and to the plaintiffs Henry Dogan and wife, each respectively, the sum of 451 dollars 48 cents with interest on 426 dollars 21 cents part .thereof from the 21st September 1828 till paid; such being their shares of the purchase money for which Moore had bought the whole land, according to the principles declared by the court; and the court being of opinion, that the intention of the testator John Hilton, manifested by the codicil to his will, was, that the money arising from the sale of his land, should be equally divided among his seven children without regard to previous advancements. And the court referred it to a commissioner to enquire and report, what purchases if any, and what payments if any, had been made by Moore of or on account of the interests or shares of Gar-nett and wife, of Jeffries and wife, and of George Hilton, in the land aforesaid, or in the purchase money (at the rate of 6 dollars 75 cents per acre) of the whole parcel of 442 acres subject to the widow’s right of dower. And the court ordered an issue to be made *up and tried at its own bar, to ascertain, whether more, and if so how much more, than 6 dollars 75 cents per acre, would have been obtained on the 21st September 1825, for the whole tract of 442 acres subject to the incum-brance of the widow’s right of dower therein, if the same had been then offered for sale, on the terms of credit and for security of the purchase money before indicated in the decree, as the terms on which the land ought properly to have been sold: And that Moore should render an account of the rents and profits of the land from the date of the assignment of the widow’s dower to the 21st September 1826 (when, if the sale had been made upon the proper terms of credit, the first instalment of the purchase money would have been due) ; and directed the commissioner to state and report the shares of the testator’s seven dev-isees of the rents and profits, and how much of the same remained due and unpaid to them. And in order to enable the court to give the defendant. Gibson a decree against the defendant Moore for his part of the purchase money of the land, on account of the reversionary interests of William and Robert Hilton in the part that had been assigned to the widow for her dower, which Gibson had purchased of those two legatees and was yet entitled to, the court directed the commissioner to en-quire and report what rate per cent, upon the purchase money, would, on the 21st September 1825, have given Gibson the value of his said reserved reversionary interests, and how much of the purchase money should have been paid to him.
    In June, 1837, before any thing had been done under the interlocutory decree, Moore presented a “petition for a rehearing’’ (so called in the record) wherein he complained, 1st, that even upon the evidence before the court at the time the decree was pronounced, the decree was erroneous in fact, in declaring, that Moore had sold and purchased the whole parcel of 442 acres of land ^subject to the incum-brance of the widow’s dower, at 6 dollars 75 cents per acre; whereas, he insisted, the just inference from the pleadings and the evidence should have been, that he sold and purchased, at that price, the 295 acres exclusive of the 147 acres that had been assigned to the widow for dower: And for the purpose of shewing that this was the just inference, the pleadings and the evidence before the court at the time of the decree, were stated. And then, the attention of the court was asked to new evidence touching the question, which had been taken and filed since the decree; and reasons were stated for the failure to adduce it earlier; but it was not alleged, that this new evidence had been discovered since the decree, nor had Moore obtained any special order of the court authorizing him to take and file it. 2ndly, He complained, that the interlocutory decree was erroneous in point of law, namely, in declaring, that it was the intention of the testator, John Hilton’s will, manifested by the codicil, that the proceeds of the sale of his land should be equally divided among his seven children without regard to previous advancements; for that, taking the will and codicil together, the meaning and intent were apparent, that all advancements made to William Hilton and Elizabeth Hogan should be brought into hotchpot in the division of the whole estate, real and personal, among the seven children. And further to shew that this was the true construction, there was exhibited with the petition (what though pleaded in the answer, had not been exhibited before, because it was in possession of the testator’s widow,) a copy of the account stated on the testator’s books of the advancements to Mrs. Hogan to the amount of ^'336. and the testator’s direction subjoined to the account, that that sum should be deducted “from her part of his estate,” when a division should take place among all his children, with evidence (filed since the interlocutory decree) to prove that the original account of the advancements *to Mrs. Bogan, and the direction subjoined thereto, were on the testator’s books, and all in his own handwriting. There was also exhibited a copy of the report of the division of the testator’s personal estate (a proceeding to which Bogan and wife were parties) whereby it appeared, that this sum of ^336. had been brought into the division, each of the seven children allowed their full share thereof as well as of the other personal estate, and the executor held accountable to them respectively for the same, and Bogan and wife, after being credited with their full portion, found debtors for a balance of 424 dollars 33 cents, “to bear interest until the money from the real estate should become due. ”
    Evidence was exhibited with the petition, that Moore had given his bond to the guardian of Susan Hilton for the balance (it was a small one) due her as legatee of her father; that, pending this suit, he had accounted to and paid Henry Hilton his full share of the personal estate, and that he had settled with and paid George Hilton, his full share of the personal estate, and purchased all his interest in the land, except his reversionary interest in the dower land.
    It appeared that between the date of the interlocutory decree and the time of presenting the “petition for a rehearing,” the testator’s widow died, so that the reversion of the 147 acres of dower land had now fallen in.
    The court refused the rehearing. And, thereupon, Moore applied, by petition to this court, for an appeal from the interlocutory decree, and from the order refusing the rehearing; which was allowed.
    The cause was argued here, by Heigh for the appellant, and Patton for the ap-pellees.
    I. The questions of fact, whether Moore’s sale and purchase were of the whole 442 acres of land subject to the incumbrance of the widow’s dower in 147 acres, or only of the 295 acres exclusive of the dower land? and ^Whether any wilful or actual fraud was justly imputable to Moore? were debated at the bar, and the evidence touching both points minutely examined. This court concurred with the circuit superior court, that Moore sold and purchased the whole parcel of 442 acres subject to the widow’s right of dower. And as to the imputation on Moore of wilful or actual fraud, neither the court below nor this court took any notice of the point.
    II. As to the refusal of a rehearing, Heigh said, that, so far as the petition prayed the court to reconsider any question of fact determined bv the interlocutory decree upon the evidence which was before the court at the time the decree was pronounced, or any question of law determined by the decree (and the question upon the construction and effect of the testator John Hilton’s will and codicil as to the advancements, was a point of law), this was, properly, a petition for a rehearing, and was regular in practice, Banks v. Anderson, 2 Hen. & Munf. 20; Attorney General v. Brooks, 18 Ves. 319, 325; Rad-ley v. Shaver, 1 Johns. Ch. Rep. 200; Con-sequa v. Hanning, 3 Id. 587; Hanning v. Bunham, 4 Id. 35, though, he said, a petition for a rehearing was not necessary, in such cases, nor usual in practice; for if a party could shew the court, or the court itself discovered, that it had committed an error in an interlocutory decree, either as to a matter of fact or of law, the court might and surely ought to correct the error, at any time before the final decree. In the English practice, the petition for a hearing was resorted to, when the decree though in its character final had not been enrolled: such petition was not necessary, where the decree was merely interlocutory. In our practice, there was no enrolment; all decrees were entered of record, eo instante they were pronounced. So far as the petition sought to bring new evidence into the cause, which had not been adduced wrhen the interlocutory decree was pronounced, though it bore upon the questions put in issue by the pleadings, the ^petition was, in effect, a bill in the nature of a bill of review, Mitf. Plead. 81-3, and so this court would consider it, though put in the form of a petition for a rehearing, Robert’s adm’r v. Cocke ex’or, 1 Rand. 121. Regularly, according to the practice of the English chancery, a review of any decree, upon new evidence, could not be allowed, unless the new evidence had been discovered since the decree was pronounced. But (repeating the argument of the appellant’s counsel on a similar point, in Dunbar’s ex’or v. Woodcock’s ex’ors, 10 Leigh 647, 8) he said, that “in our practice, theye was no decree merely interlocutory, which might not be corrected upon new evidence adduced before final hearing, whether the new evidence was discovered before or after the interlocutory decree was pronounced. Formerly, by statutory regulation, after the commission for taking depositions was closed, and the cause set for hearing, new evidence might be introduced, in any stage of it, under a special order of the court, but not without such a special order. 1 Rev. Code, ch. 66, § 103, p. 216. And in the practice of the superior courts of chancery, handed down from the high court of chancery in Chancellor Wythe’s time, the special order for taking new evidence was always made upon motion, if the evidence was material, unless it appeared to have been kept back for purposes of delay or chicane. The leave to take new evidence was almost a matter of course, when it was asked; and it was more frequent after than before an interlocutory decree. And it was only necessary to reflect upon the loose and unadvised manner in which depositions in chancery were taken, generally by the parties themselves in the country, to understand why the strictness of the English chancery practice had never prevailed, and how the liberal indulgence of our practice became indispensable to the ends of truth and justice. With knowledge of the' existence of this practice, and aware that the opening of the cause for new ^evidence had become matter of course upon motion for the purpose, the legislature, by the statute of March 1826, dispensed with the necessity of the motion and the special leave of court, by providing, that from the filing of the bill until the final hearing in any case, either party may, without any order of court, obtain general commissions and take depositions to be read therein; Supp. to Rev. Code, ch. 103, $ 9, p. 132.” The special court of appeals in Dunbar’s ex’or v. Woodcock’s ex’ors, did not (determine the question of practice upon the construction and effect of the provision in the statute of March 1826. It remained now to be settled. The circumstance of the new evidence being introduced, in the present case, upon a petition for rehearing, could not render it less proper that the court should consider the new evidence, and correct the interlocutory decree in the particulars wherein that evidence shewed it to be erroneous.
    Patton said, that the new evidence introduced with the “petition for a rehearing,” ought not to have been admitted and considered by the court. And he repeated, and enforced, the argument of the ap-pellee’s counsel upon the point, in Dunbar’s ex’or v. Woodcock’s ex’ors: “It was the practice of our courts of chan-eery, formerly, before the statute of March 1826, when the general commission to take depositions had been closed, to open the commission by special order, on motion, at any time before the hearing; but after the hearing, and an interlocutory decree deciding the questions of fact, the court never gave leave to take new depositions on a point decided, unless upon affidavit that the new evidence had been discovered since the decree. This was, perhaps, sometimes done informally, upon motion, and sometimes regularly upon supplemental bill in the nature of a bill of review of the interlocutory decree; but in whichever way it was done, the principle on which the new evidence was received was the same, namely, that it had *been newly discovered. And it was necessary that this principle should be observed ; for otherwise, the litigation of questions of fact, however solemnly decided by the court on a full hearing, would have been perpetually renewed, and there would have been no end of it; and the .admission of new evidence under such circumstances, would have been a temptation to carelessness and neglect, if not to subornation of evidence. The statute of March 1826 was designed to dispense with the motion for leave to take depositions and the special order for that purpose, in cases in which the former practice required them, but only in such cases; not to render the interlocutory decision of questions of fact nugatory, or to dispense with the supplemental bill in the nature of a bill of review of interlocutory decrees, or to abrogate the principle on. which such bills of review could be allowed. Though the words of the statute were general, that from the filing of the bill until the final hearing in any case, depositions may be taken to be read therein, without any order of court; yet the final hearing there meant was such final hearing as had formerly concluded the questions of fact; and formerly the questions of fact might have been settled by an interlocutory decree as well as final one.” In Dunbar’s ex’or v. Woodcock’s ex’ors, the special court of appeals held, that the interlocutory order there in question, was not a final decree within the meaning of the statute of March 1826, being only an opinion of the court, given in the progress of an account, upon exceptions to a report or instructions to the commissioner. In this case, there can be no doubt, that there was a full and final hearing of all questions of fact and of law, and these questions settled by the interlocutory decree; and this, he submitted, was such a final hearing as the statute of March 1826 had in contemplation.
    III. Leigh said, the court below erred in the construction it put on the wilt and codicil of John Hilton, ^namely, that it was the testator’s intention, manifested by the codicil, that the money arising from his land should be equally divided among his seven children, without regard to previous advancements. The testator’s general intent and purpose was very clear, to give equal portions to each and all his children: the provision for the education of his younger children, was hardly an exception, since he had already educated the elder. This general intent could only be accomplished, by requiring those to whom he had made advancements, to bring them into hotchpot in the division of bis estate; of his whole estate without discrimination; of the personal estate he left, and of the proceeds of his land, which he directed to be sold out and out, and thus converted into personalty. There was nothing in the words of the codicil, viewed with reference to the will (which was its context) that indicated a particular intent that the proceeds of the land should be equally divided among the seven children without regard to the advancements ; and to shew this, he entered into a critical examination of the will and codicil. But, he said, if the words of the codicil, taken alone, might seem to indicate such a particular intent, the court would not sacrifice the plain general, to the very doubtful particular, intent: it would adopt the construction that would best effectuate the general intent. The function of the codicil was simply this: the testator, having by his will indicated the objects of his bounty by description, “his children living at his decease,” thought proper, by the codicil, made shortly before his death, to bequeath it to them by name; an alteration very immaterial in its effect. Clearly, then, the ¿186. mentioned in the will as having been advanced to Mrs. Dogan, was to be brought into hotchpot in the division of the whole estate. The only doubt was as to the .¿ISO. advanced to her after the codicil was made. Now, that the testator made that additional advancement of ¿ISO. to her, and intended *that that as well as the former advancement of ¿186. should be brought into hotchpot in the division of his whole estate, appeared by the account stated on his books of his advancements to that daughter, and his direction subjoined thereto, that the whole ¿336. should be deducted from her part of his estate when a division should be made among all his children. The testator has thus given his own construction of his will and codicil,, which surely the court must respect; and he himself had made an estimate of the amount of advancements to Mrs. Dogan which she was to bring into hotchpot. Again, the advancement of the ¿ISO. to Mrs. Dogan was a satisfaction of the legacy to her pro tanto. The testator certainly did not make a simple gift of that ¿ISO. to Mrs. Dogan: it was given to her .with the intent, and upon condition, that it should be brought into hotchpot in the division of his estate, and if it should not be so brought into hotchpot, she would be debtor to the estate to that amount; and even in this view, it ought to be discounted from her share of the proceeds of the land. But, moreover, the whole amount of advancements to Mrs. Dogan [¿336.] had been in fact brought into hotchpot, as part of the personal estate, in the division thereof; a proceeding to which Dogan and wife were parties: the executor was made accountable for six sevenths of that ¿336. to the other six legatees, and accounted to Dogan and wife for the other one seventh, who were found indebted in a balance of 424 dollars ovei and above their share, which was left to be deducted, with interest, from her share of the proceeds of the land. And if it should not be so deducted, Dogan and wife would get exactly 424 dollars more than their share, and the executor would have to pay, if he had not already paid, that sum out of his own pocket to the other legatees.
    Patton contended, that the codicil expounded the provisions of' the will, and if it did not expound, it controlled *'them. The codicil provided, in precise and plain words, “that the money arising from the sale of the testator’s land should be equally divided among” his seven children therein named; that is, that it should, in all events, be so divided among them. This was probably his intention when he made his will, and he meant to explain that intention by the codicil; or, if it was not so, then he had changed his purpose, and made his codicil to declare his final intention. As to the account found in the testator’s books of his advancements to Mrs. Dogan, and the direction subjoined that the ¿336. which had been advanced to her should be deducted from her part of his estate in the general division thereof among all his children, and the evidence adduced to prove that the account and the direction were in the testator’s handwriting, the court could not, with propriety, take any notice of these facts; because, in the first place, the account and the direction thereto subjoined were, in their nature, a testamentary paper, and yét had never been duly proved as such, and without due probat was nugatory ; and because, in the second place, all this was new matter brought into the cause after the interlocutory decree was pronounced, without pretence that it had been subsequently discovered. It was, indeed, pleaded in Moore’s answer; and, if he intended to rely upon it, ought to have been exhibited with the answer. It was matter which, though Moore might have exhibited it before the hearing and the interlocutory decree, was only brought before the court with the “petition for a rehearing ;” which, in this respect, was a bill in the nature of a bill of review of the decree, upon matter well known to the party, and within his power to adduce proof of, before the hearing : therefore, he could not avail himself of it to impeach the decree. He said, the same remarks were applicable to the report of the division ; that must have been well known to the party before the hearing, yet it was suppressed till the interlocutory *decree was pronounced, and only brought before' the court with the “petition for a rehearing.” But, averting to the report, he said, that though it thereby appeared, that the ¿336. advanced to Mrs. Dogan was taken into account by the commissioners as part of the testator John Hilton’s personal estate, and equal shares thereof allowed to each of the legatees, it nowise appeared that Moore, the executor, had paid the same to any of them. They might be interested in "this question, Moore was not.
    Leigh replied, that as to the doubt now suggested, whether Moore had paid the legatees their shares of the personal estate including their share of the ¿336. advanced to Mrs. Dogan, the report of the division shewed that he was held accountable to them for the same; Moore alleged in his answer, that he had paid their full shares to all the legatees, except Henry, George, and Susan Hilton; the interlocutory decree took it for granted, that he had paid all the legatees their shares except those three, as to whose interests it directed the proper accounts; the others had not appealed from the decree; Dogan and wife had no right to complain of the decree, on behalf of their co-legatees ; and Dogan and wife were the only parties interested to contest the question with the executor, whether the advancement of the ,£336. to Mrs. Dogan ought to be brought into hotchpot in the division of the proceeds of the land, for they were the only parties who were chargeable with a balance on account of advancements. There was evidence filed with the petition for a rehearing, that Moore had accounted for and paid to the legatees Henry, George and Susan, their full shares; and this evidence might certainly be laid before the commissioner, when he proceeded to state the accounts directed by the decree. He said, that the account of advancements to Mrs. Dogan found on the testator’s books with the direction subjoined to it, all in the testator’s handwriting, *was indeed a testamentary paper, and might have been proved as such. Yet it was proper evidence without a regular probat; or if a regular probat was necessary, it might even now be propounded for probat, and the court ought to have given leave and time to the party to make the probat; Druce v. Denison, 6 Ves. 38S, 397. For the rest, supposing that the commission to take depositions touching questions of fact put in issue by the pleadings, could not be opened without special leave of the court after an interlocutory decree settling the questions of fact, and ought not to be opened unless it appeared that the new evidence had been discovered subsequently to the decree; yet it had never been doubted, in our practice, that exhibits, which ought to have been but had not been filed with the pleadings, and which had not been called for by the other party or by the court, might be filed after an interlocutory decree; especially when, as in this case, though they might vary the final result, they could nowise impede the execution of the decree.
    IV. Leigh admitted, that Moore’s sale and purchase of the land could not be supported, not only for the reasons stated in the decree, but because, as the advertisement of the sale gave no notice that any part of the purchase money would be required in cash, the requisition, at the time of sale, of 1386 dollars in cash, was calculated to prevent competition. But, he contended, the court erred in the mode and measure of relief. Either the sale should have been set aside, and a resale ordered upon such terms of credit as the court thought most advantageous, and Moore held accountable for the profits since his purchase : or he should have been held to the actual bargain he had made, and the plain- | tiffs allowed the full benefit of it; charging him with the price of the 29S acres of land exclusive of the widow’s dower, or of the whole 442 acres subject to the incumbrance of the dower, (according as the one or the other *was found to have been the real subject sold and bought,) at 6 dollars 75 cents per acre, with interest on the purchase money. And the court might properly enough have given the plaintiffs choice of those alternatives. But, compelling Moore to take the land, it ought not to have gone farther, and compelled him to pay not only the price at which he had bought it, but as much more as he ought to have given for it if the sale had been made upon the proper terms. A court of equity might set aside contracts for fraud, or for mistake as to facts; it might avoid a trustee’s sale and purchase at his own sale, at the instance of the cestuis que trust, either for any unfairness or irregularity in the transaction, or because it was incompatible with the duty of his trust: but it could not, on the ground of ’fraud, unfairness, irregularity or breach of trust, make a new bargain for the purchaser, and decree specific execution of such bargain thus made for and forced upon him. And this was exactly what the court had done in this case: it held Moore accountable for the whole purchase money of the land, according to the terms of his actual purchase upon the most onerous construction thereof; and ■ then required him to pay as much more purchase money as a jury should say the subject would have sold for, at the time he made the sale and purchase, if it had been then offered for sale on the terms of credit prescribed by the court. Equity never gave speculative damages, for breach of a contract of sale, or upon a rescission of such a contract for any cause, or for fraud or deceit in a bargain; especially, where the subject of the contract remained in statu quo, to be restored to the parties complaining, or disposed of by the court for their benefit. There were some precedents of issues quantum damnificatus directed by the court of chancery; but they were very rare, and the authority of those precedents had been questioned, even in cases where the court could no otherwise give the party injured the benefit of *his bargain or of his property. He cited, and examined, Threlkeld’s adm’r v. Fitzhugh’s ex’x, 2 Leigh 451; Robertson v. Hogsheads, 3 Id. 667; Denton v, Stuart, 1 Cox 158, 17 Ves. 276, in notes; Greenway v. Adams, 12 Ves. 395; Gwillim v. Stone, 14 Id. 128; Todd v. Gee, 17 Id. 273; Sloman v. Walter, 1 Bro. C. C. 418.
    Patton maintained, that the decree was right as to the manner and the extent of the relief it gave. The testator directed that his land should be sold, on a credit, and the proceeds divided among his children : the duty of the trustee was to make the sale, on reasonable credit, as soon as he conveniently could; he neglected to sell it for some five or six years, and then committed a plain and gross breach of trust in making the sale. To give the cestuis que trust what the land would bring twelve years after (according to the trustee’s own shewing) it ought to have been sold, thus subjecting- them to the risque of a depreciation of the property, and exempting him from it, making them bear the loss that might arise from his delay, neglect and misconduct, instead of holding him liable for it, would have been most unmerited favour to him, and to them most inadequate relief. The trustee had bought the shares of two of his cestuis que trust in 295 acres of the 442 acres of land, to enable him to sell the whole subject, because, as he himself declared, the sale of it in separate parcels, would be disadvantageous to the parties interested; indeed, he ciaimed to have acquired since the sale, the right of two other parties; and thus he had become entitled to four sevenths of the 295 acres. He would have a right to demand that four sevenths of the latid itself should be laid off and allotted to him in severalty; or, if the court ordered the whole land to be sold on the proper terms of credit, no other purchaser could come into fair competition with him to whom so large a share of the proceeds of sale would be due. Therefore, it was impossible to restore to the plaintiffs the same benefit to which they-*would have been entitled if their trustee had timely and fairly performed his trust, by directing a resale of the subject upon the proper and usual terms of credit and giving the plaintiffs their shares of the proceeds, or in any' other way than that which the court had adopted in the decree. And there was abundant authority to shew the propriety of the decree. He cited, in the course of his argument, Hedges v. Bverard, 1 Bq. Ca. Abr. p. 18, pi. 7; Ive v. Ive, 1 Atk. 429; Bostock v. Blakeney, 2Bro. C. C. 653; Box v. Mackreth, Id. 400; Tebbs v. Carpenter, 1 Madd. Rep. 290; Ex parte Reynolds, 5 Ves. 407; Pocock v. Reddington, Id. 794; Ex parte Hughes, 6 Ves. 617; Lister v. Lister, Id. 631; Dawson v. Massie, 1 Ball & Beat. 210; Taylor v. Tabruni, 6 Sim. 281, 9 Cond. Eng. Ch. Rep. 269; Hart v. Ten Eyck, 2 Johns. Ch. Ca. 62, 116; Davoue v. Banning, Id. 252. In one view, indeed, Moore himself would be benefited by the mode of relief adopted by the decree; he was to be charged with the purchase money for which the jury should find that 442 acres of land would have sold, in 1825 subject to the then existing incumbrance of the widow’s dower, if it had then been offered for sale upon the proper terms of credit; but the widow being now dead, he held the land relieved from that incumbrance; and if now sold over again, it would be sold clear of the incum-brance.
    TUCKER, P. Much discussion having taken place at the bar on the subject of petitions for rehearing, I shall take occasion to state succinctly my views of the practice, and then apply them to the present case.
    According to the English practice, a petition for rehearing is an application to the chancellor, before a decree has been signed and enrolled to rehear a cause, not upon new matter or new evidence, but upon the matter in issue and the evidence in the cause at the former hearing. If there be new matter or new evidence in *the power of the party, which would have been the foundation of a bill of review if the decree had been enrolled, it must be made the subject of a supplemental bill in the nature of a bill of review, and its object cannot be attained by a petition to rehear. Mitf. Plead. 82; Wiser v. Blackly &c., 2 Johns. Ch. Rep. 488. To this supplemental bill, the defendant answers as in other cases, traversing, if he so pleases, the alleged discovery of new matter or new evidence since the former hearing. It were well, I think, that this regular proceeding had been adhered to by our courts, yet I have no doubt they have fallen into the practice of entertaining petitions as substitutes for the supplemental bill; an instance of which is found in Roberts’s adm’r v. Cocke ex’or, cited at the bar. It is plain, however, that every such petition must partake of the character of the supplemental bill, and be treated according to its analogy. Therefore as a supplemental bill filed, for the purpose of bringing forward new matter or new evidence, must shew that it has been newly discovered, and could not, by due diligence, have been brought forward before, Dale v. Roosevelt, 6 Johns. Ch. Rep. 255, so also must a petition for rehearing, which is its substitute. As the supplemental bill calls upon the defendant to answer, and as he may accordingly traverse the alleged recent discovery, so in the case of a petition setting forth the discovery of new matter or new evidence, the adversary party may traverse the allegation; and to that end the necessary steps should be taken for calling upon him to answer. Unless this course be adopted, we must discard the proceeding by petition, and adhere to the supplemental bill; but so long as the substance is retained, I should incline to think a proceeding by petition, or even by motion or rule, might be without objection, and even preferable for its simplicity and expedition.
    In this case, there was no foundation for a supplemental bill, and notie of course for a petition bringing in *new evidence. There is no allegation, that the evidence upon either point was newly discovered, or that the defendant could not by due diligence have had advantage of it before. I think, therefore, that the court ought not to have allowed the petition, or reheard the cause, unless our statute of March 1826 has otherwise provided. That statute provides, that “from the filing of the bill to the final hearing of the cause, either party may, without order of court, obtain commissions to take depositions to be read therein.” What then is the meaning of the statute as to the final hearing? Are we to understand it in its strictest acceptation, or in a more limited sense? If the former, then although a decree shall have been pronounced upon the merits, after a full hearing of the cause, yet if accounts or any other supplementary proceedings are directed, which (as frequently happens) may occupy years, the decree, and all that has been founded upon, it, may be set aside upon the production of a deposition subsequently taken, and a new hearing upon the merits and on the new testimony must be the consequence. Such a construction would be pregriant with’ mischief. I think; therefore, that we should give to the'statute a 'More limited construction, and confine it to what was obviously the design of the legislature. It was me rely intended to remove the inconvenience of" special applications for commissions after a cause is set for hearing ; and it clearly was hot intended to give to any party liberty to take testimony without' a commission in any case, which even the allowance of a commission befbre could riot make regular. If before this statute, it would have béen error in a court after a full hearing upon the merits, to' have awarded a commission to' take evidence which was before known to the pdrty and in his power, 1 should hold it to be clear, that the legislature did not design to legitimate such evidence without a commission. Theréfofe I am of opinion, that ' it is not competent to ¿ party, after a *hearing of the cause arid a decree settling the merits of the controversy, to take new testimony to matter that was fairly in issue and decided upon bufif the party has new matter to 1 put in, issue, or newly discovered ' evidence to the matter formerly iri issue,' he must resort to his supplemental bill of review, or to a petition for a rehearing in the nature of it,'which must be governed by the’ principles which prevailed in relation to' them before' the statrite'in question.
    Excluding 'the depositions taken after, the' hearing! we must Consider the'appellant as having purchased, according to his advertisement, the whole 442 acres of land subject to the widow’s dowei. This salé, it is admitted, cannot stand without the assent of the legatees; 'whd, upori equitable principles, have a’ fight ‘either to have a resale or to insist upori that which has been triade. They have elected the latter, but tiiey demand that "Moore‘shrill be held to pay as much more than the contract price, ‘as a sale upon proper terms of credit would have1 brought, Instead 'Of a sale for cash or one half 'cash. This seems but reasonable. Both patties acquiesce in the fairness of the price,' considering' it' was a‘ sale 'for a large portion iri cash, and all that the case requires is a fair estimate of the probable difference between a cash arid credit salé. ' The nature and circumstances of the case, which arise out of the appellant’s own conduct', fender this necessary! No other expedient .can attain justice! ’ or plácé the appellees iri the situation they would have held, had the triist .been faithfully executed. The falling "in of the life estate of the widow, and the possible variance of'prices, would render a sale at this’ time a very unfair means of adjusting the rights of the parties. The principle of the decrée, then,' appears to ine to be right, though it 'would" have been better to have referred it to a discreet commissioner, rather than'tó a jury, to ascertain the probable difference according to' the general current of similar transactions, "between a sale *on the terms on which Moore bought, and a sale ori such credit as would have been proper under his testator’s will. This might safely be entrusted to a judicious man of business, fa- | miliarized to similar enquiries; but I would be unwilling to submit an estimate to the vague conjectures of a jury, of the price that might have been obtained fo'r the land in 1825. ' In this respect', it would seem advisable to correct the decree.
    We come, lastly, to the advances to Dogan and wife. . I am of opinion, that the court erred in declaring that the testator intended by his codicil, that the proceeds of sale of his land should be divided without reference to advancements. I find nothing from which this inference can be drawn, particularly in relation to subsequent advances. Now, the advance to Mrs. Dogan mentioned in the will, is expressly directed to be taken out of hér share of the estate. The additional advancement of ;£150. which it is claimed to deduct from her share of the realty, and which was subsequent to-the date of the codicil, is alone in' question. Now, an advancement to a child, made subsequent to a will, is to be taken as a satisfaction pro toto or pro tanto, according to its amount. Jones v. Mason, 5-Rand.'1 57V; Hoskins v. Hoskins, Free, in Ch!"263; Trimmer v. Bayne, 7 Ves. 508, 515; Pye ex part'e, 18 Ves. 140, 151; Monck v. 'Monck, 1 Ball & Beat. 296, 304. . This advancement, then, should have been charged to Dogan and wife in the division of the proceeds of the sale of the land. But it is said, no proof of the advancement was iri ’ the cause at the "time of the' decree, ' I think, however, that the defendant having set forth the advances in his answer, it was not' necessary that the proof should have been'takéri, before a' reference of the accounts to a comiriissioner, which, in the regular course of proceeding, ought to have taken placé. But' the court inade no such reference; arid, moreover, cut oif at once, by the decree,' all evidence as to the advancements claimed- in the answer, *by declaring' that they were not to be deducted. Haches, therefore, in exhibiting this evidence, should not be, imputed to the appellant.
    On' 'the whole, I think the deqree' is erroneous, as it respects the advances to. Dogan arid wife, but that it is,'iri other respects, correct upon principle, though'iíwoúld be advisable to modify it. by referring the' estimate" of. the difference between a cash and a credit salé to'.a commissioner instead of a jury., "
    
      
      Interlocutory Decree — Introduction of New Evidence. —The principal case is cited in Bartlett v. Bartlett, 37 W. Va. 240, 16 S. E. Rep. 452; Richardson v. Duble, 33 Gratt. 739.
      Same — Same—Effect of Statutes. — But statutes, which were adopted, no doubt, as «Judge Staples observes in Richardson v. Duble, 33 Gratt. 739, with a view to remove a difficulty and some uncertainty in the practice growing out of the decisions in the principal case, and Dunbar v. Woodcock, 10 Leigh 628, now provide, that in a suit in equity a deposition may be read if returned before the hearing of the cause, or though after an interlocutory decree, if it be as to a matter not thereby adjudged, and be returned before a final decree. Va. Code 1887, ch. 161, § 3362 ; W. Va. Code, ch. 130, § 35.
      Same — Same—Discretion of Court. — There is no rule of practice or of law which precludes the party from taking new evidence after an interlocutory decree, even before a rehearing is obtained. The introduction of such evidence depends on the sound discretion of the court and all the circumstances of the particular case. Summers v. Darne, 31 Gratt. 805, citing Dunbar v. Woodcock, 10 Leigh 628 ; Moore v. Hilton, 12 Leigh 1. The principal case is cited in Kendrick v. Whitney, 28 Gratt. 653.
    
    
      
      Advancements. — See monographic note on "Advancements” appended to Watkins v. Young, 31 Gratt. 84. The principal case is cited in Strother v. Mitchell, 80 Va. 153.
    
    
      
      Fiduciaries — Purchase of Trust Property by. — A purchase of trust property by a fiduciary, while he occupies the fiduciary or confidential relation, is voidable at the pleasure of the cestui que trust, or person occupying his position, though it may have been made at a fair and adequate price, and the purchase may in all respects appear fair and reasonable, and the conduct of the purchaser just and candid. The principal case is cited, in support of this proposition, in Newcomb v. Brooks, 16 W. Va. 62 ; Lewis v. Broun, 36 W. Va. 7, 14 S. E. Rep. 446. See the principal case cited in Harvey v. Steptoe, 17 Gratt. 303.
      Same-Same — Executors—Case Overruled. — in Newcomb v. Brooks, 16 W. Va. 64, the court said : “Chancellor Taylor of the superior court of chancery of the Richmond District in McKey executor of Fuqua v. Young, 4 Hen. & M. 430, held that a purchase by an executor of land at a public sale made by himself was not voidable, when the sale was fair and correct. But this decision has been overruled by the Virginia Court of Appeals in Moore v. Hilton, 12 Leigh 2-28: and Bailey v. Robinsons. 1 Gratt. 4-9.” See foot-note to Bailey v. Robinsons, 1 Gratt. 4; Buckles v. Lafferty, 2 Rob. 292, and monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   STANÁRD, J.,

delivered the following as the opinion and decree of the court:

That after an interlocutory decree on a hearing deciding matters in issue between the litigant parties has been rendered, neither of the parties has the absolute right to introduce new evidence in respect to the matter so decided, but the right to introduce and rise such evidence as ground for changing or setting aside such decree, depends on the sound judicial discretion of the court to which it is offered, and its judginent ón ' the sufficiency of the excuse that may be urged for the failure to have had that testimony before the court when the causé was heard ' and the decree ren-' dered; arid such , excuse may'.be offered to the cour.t, either upon motion on notice to rehear the cause on the new evidence, or by petition for rehearing. That the decree of the court below in this case, is right, so far as it decides that the sale at which the, executor was purchaser, was of the whole land subject to the widow’s dower, and hot the two thirds thereof not covered by the dower; and such being the opinion of the majority of the court, whether the additional evidence which Moore sought, by his petition for a rehearing, to introduce in the case, be heard or excluded, therefore it is unnecessary to decide on the sufficiency of the excuse offered by him for failing to have that evidence in the case before the interlocutory' decree was rendered: The decree rightly made Moore ^chargeable on his purchase with the whole of the land at the rate of 6 dollars 75 cents per acre. That Moore did not conform to, his duty in requiring so large a portion of tjie purchase as was required, to be paid in cash; that while as purchaser he may .(as any other purchaser would) at the election of the cestuis que trust, be bound for.the amount of the purchase money, he is further chargeable to the cestuis que trust for the injury arising from such ah iihpr.ovi-dent sale; and that the, measure of that injury is the difference in the price which the land would have commanded, tested by the dealings of prudent and judicious men, if sold on the usual credit of one, two and three j'ears, in' equal instalments, and the price it commanded at the sale that was made, assuming that the price at which it ■was purchased was a fair and full price, having reference to the terms of that sale. That, while the court below was right so far as it held Moore accountable to the ■cestuis que trust for the said difference, that difference could be more conveniently and compendiously ascertained by an en-quiry and report of a commissioner than by a trial before a jury; and that, that course should be taken on the return of the case to the circuit superior court. That the court below erred in decreeing a division of the proceeds of the sale of the land and thus separating that from the rest of the estate, without an account shewing the state of the administration of the estate, and of the advancements or payments to, and accountabilities of, legatees; that Moore was not in default in not producing previous to the decree, the document shewing, or purporting to shew, the division of the personal estate, and the responsibilities of the legatees to the estate or the executor, that being a document proper to be used before the commissioner who might take the accounts; that, in taking such accounts, it was competent to Moore, to introduce the evidence to shew the charge by the testator of 500 dollars the value of property delivered to Henry ¡Dogan, the husband *of the testator’s daughter Elizabeth, as an advancement for which she was to be accountable on the division of the estate, and if satisfactory evidence to that effect be introduced, it would be . proper to. bring that, to the charge of the said daughter ¡Elizabeth’; and that on the account so to be taken, the decree should be in favour of the legatees respectively, or the balances that „may be ascertained to be due, of the aggregate of their respective, shares of the real and personal estate. Therefore, the decree, so far as it conflicted with (the. principles here declared, was reversed, with . costs &c. and in other respects , approved and affirmed, and the cause remanded to the circuit superior court for further proceedings &c.  