
    *Dunbar’s Ex’ors v. Woodcock’s Ex’or.
    March, 1840,
    Richmond.
    (Before a special court of appeals consisting of Brooke, indite of the court of appeals, and Scott, JLíeich and At,mis, judges of the general court.)
    Will — Construction—Residuary Bequest for Life and in Remainder — Case at Bar. —Testator, a Virginia farmer, gives the residuum of his estate, real and personal, to his wife for life, and after her death, gives the same, as well the land as all the other property remaining at her decease, to D. and wife, who are not of kin to him, appoints his wife and D. his ex’ors, and directs that his estate shall not be appraised ; the residuum consists of land including the farm on which testator lived, slaves and live stock thereon, furniture and farming utensils, crops of grain on hand, money and debts due : the testator's wife takes and holds in kind, during her life, the slaves, live stock, furniture and farming utensils, and she takes the whole of the crops on hand, and appropriates them to her own use : in a controversy after her death, between her ex’or and the remaindermen, Hma>,
    i. Same Same- Same- Riglit of Legatee for Life to Dispose of Personalty. — That the will gave the legatee for life no absolute power of disposal of any part of the personal property, and as to all of it the limitation over in remainder was good and effectual.
    2. Same — Same—Same—Rights of Legatee for Life in Grain. — That as to the crops of grain left by the testator on hand, the legatee for life was entitled to so much as was necessary for consumption in her family and on the farm for the year ensuing the testator’s death, but her estate, after her death, was accountable to the remaindermen, for the proceeds or value of the surplus thereof, which in the ordinary course of business was. intended for market.
    3. Same — Same—Same—Rights of Legatee for Life in Personal Chattels —That, in this case, the legatee was entitled to enjoy the personal chattels in kind:
    Same —Same—Same —Same-Work Horses Must Be Returned in Kind — That as to work horses, farming utensils and the like, such as were forthcoming at her death to be returned in kind, though worn and impaired, were to be handed over to the re-maindermen in their then state ; such as died or were entirely worn out, were not to be charged to the estate of the legatee for life ; her estate was to be charged with the principal of what she had sold, unless other articles of the same kind were substituted; and such as, from circumstances, might reasonably be presumed to be dead or worn out, should not be charged to her estate:
    *Same — Same — Same — Same — Brood fiares Must Be Returned in Kind —And. that as to brood mares, flocks of sheep and the like, the legatee for life was bound to keep them up in kind, and her estate was accountable for them accordingly, unless destroyed or impaired by casualty Life Estate In Bond — Valid Gift of. — Testator holding a Rond for a debt, bequeaths that bond inter alia to his wife for life, remainder to D. and wife, and appoints his wife and D. his ex’ors ; the legatee for life and ex'x delivers this bond to her coex’or, the remainderman D. with intent to give and transfer to him her interest in the bond as legatee, and gives him a written, but not a sealed, instrument to that effect: though there was no consideration for this gift, yet Held, it was a valid executed gift, which passed the interest of the legatee for life to the donee.
    Decrees — Interlocutory—New Evidence. — An interlocutory decree in chancery, deciding a question of fact in litigation, pronounced in the progress of an account, upon exceptions to a report, or instructions to a commissioner, as to the propriety of items of debit or credit, is not such a final decree, as precludes a party from taking new evidence touching the same question of fact, without having obtained a review or rehearing of the decree, and without shewing that the new evidence had been discovered since the decree.
    Same — Same—Same—Quere.—What would be such a final decree as would preclude a party from filing such new evidence touching a question thereby decided, according to the chancery practice of Virginia, and the provision of the statute of March 1826, Supp. to Rev. Code, ch. 103, § 9 ?
    Commissioner’s Report — interest on Interest. — A commissioner’s report shews a balance due from the defendant, consisting entirely of interest found due on an account never before settled, and states, that that balance of interest is to hear interest from a remote day ; there is no exception to the report; and the court decrees the balance with ' interest accordingly : Held, the decree was erroneous in giving interest upon the interest from a remote day ; interest ought to he allowed only from the date of the final decree.
    Robert Woodcock, late of the county of Frederick, died in the year 1808, without children or other descendants; and, by his last will and testament, bequeathed a legacy of /SO. to Thomas Shearman ; emancipated four slaves by name; and devised one parcel of land to his sister in law mrs. Rust for life, and after her death to Robert Dunbar and Hannah his wife and their joint heirs; the remainder after his wife’s death of another parcel of *land to George Murray in fee; and the remainder after his wife’s death of another parcel of land on which he lived to Cyrus Murray in fee; and then devised and bequeathed as follows — ‘ ‘I leave the use of all the rest, residue and remainder of my estate, real, personal' or mixed, to my well beloved wife, Frances Woodcock, during her natural life, and after her death I give and bequeath the same of every description, as well the land I bought of John Acre as all the other property remaining at her decease, to my friend Robert Dunbar and Hannah his wife and their joint heirs forever.” And he appointed his wife and Dunbar executrix and executor of his will, directing that security for due administration should not be required of them, and that his estate should not be appraised. They both qualified in the district court of Winchester, at its September term 1808.
    The widow continued in possession of the land on which the testator resided, and all the personal property upon it, consisting of slaves, stocks of horses, cattle &c. furniture, farming utensils, the crops gathered and growing, grain and flour at the mill and on the way to market, and she retained also a small sum out of the money he left on hand. Much the greater part of the money, as well as the bonds and other securities for debts due to the testator, came to the hands of Dunbar. And a minute and exact inventory, both of the spe-, cific chattels and of the money and bonds, was made out.
    A controversy arose between mrs. Woodcock and Dunbar in the lifetime of the parties; and in 1812, she brought a suit against Dunbar, and he brought a cross suit against her, in the superior court of chancery of Winchester; but neither of those suits was determined during the lives of the parties, nor were any proceedings had in either of them after mrs. Woodcock’s death; but the pleadings, and all the proceedings, depositions and other evidence in both of them, were filed as exhibits in this cause.
    *'Dunbar died in April 1815, and mrs. Woodcock in August 1816.
    In 1820, Peter Rust, the executor of mrs. Woodcock, exhibited a bill in the superior court of chancery of Winchester against Lewis Hoff and Samuel Briarly the executors of Dunbar, setting forth the will of the testator John Woodcock; alleging, that money of that testator to the amount of about 8000 dollars, and bonds and other securities for debts to the amount of above 12000 dollars, came to the hands of Dunbar, to the interest accruing on which during mrs. Woodcock’s life, she was entitled under her husband’s will, but that Dunbar appropriated those moneys and all the •debts which he collected of his testator’s estate to his own use, and failed and refused to account for and pay to mrs. Woodcock the interest thereon as it accrued ; and praying, therefore, an account of the moneys of the testator John Woodcock’s estate received and collected by Dunbar, and of the payments, if any, made bj’ him to mrs. Woodcock, and a decree for the balance of the interest which accrued on the fund during mrs. Woodcock’s life, which had not been paid to her.
    Dunbar’s executors, in their answer, stated, that money of the estate of the testator John Woodcock, which came to the hands of Dunbar, was, with the approbation of mrs. Woodcock, invested in a purchase of land for the use of mrs. Woodcock ■during her life, and of Dunbar after her death, and she accordingly held possession of it during her life paying no rent; that she also held all the slaves, the stocks of horses, cattle &c. the furniture, the farming utensils, and the crops on hand at the testator’s death, collected some debts due to his estate, and released others, and had rendered no account of the personal property or of the debts so appropriated to her own use; that the money received by her, the grain and flour of the testator’s estate sold by her and of which she received the proceeds, the stock *and other personal chattels which she took possession of and which were not forthcoming at her death, together with a bond of one Benedict Rust for a debt due to the testator’s estate which she released, exceeded the interest which accrued during her life on the moneys of the estate received and collected by Dunbar, and that thus she was in fact in his debt. They stated, in regard to a debt due from one Briarly to the testator at his death, that mrs. Woodcock, in compliance with a direction of the testator on his deathbed, relinquished her interest in that debt to Dunbar, by a written instrument which they exhibited. And they also exhibited and relied on a general relea se from mrs. Woodcock to Dunbar.
    The court referred the accounts between the parties to a commissioner; and the main points in controversy tvere presented by exceptions to his report, or objections thereto for errors apparent on its face.
    The manner in which the accounts were stated in the report, and the amount of mrs. Woodcock’s claim and Dunbar’s liability ascertained, was thus: Dunbar’s ex-ecutorial account had never been previously settled, and the commissioner first stated that account, striking annual balances from 1808 to 1816, and carrying the interest on the balances found against the executor, computed from the end of each year to the date of mrs. Woodcock’s death, into a separate column. And then he stated an account between mrs. Woodcock and Dunbar, wherein he charged her with such sums for which she was supposed to be liable to Dunbar, and credited her with the aggregate amount of the inteiest appearing due on his executorial account, and thus shewed a large balance due to her at the close of the transactions in 1816, on account of interest which he ought to have paid her, which balance was to bear interest from that time.
    There were seven exceptions taken by the plaintiff to the commissioner’s state of the account between mrs. *Woodcock and Dunbar. But only the first and fifth of them involved questions of law, and these only need be stated; the others presented mere questions of fact.
    The first exception was to a charge against mrs. Woodcock of 1424 dollars, on account of crops left by the testator Woodcock on hand at the time of his death, which she took and appropriated to her own use. — The following was the state of facts touching the point: The testator left crops of grain on hand, much more than sufficient for consumption at home, and of course the greater part was intended for market. Of the crop of wheat 56 barrels of flour had been manufactured before his death, and were then on the way to market: they were sold, and the proceeds were received by mrs. Woodcock, amounting to 210 dollars. The rest of the crop of wheat was on the farm; there was a parcel of indian corn on hand, and a crop of it not yet severed; and mrs. Woodcock took and enjoyed all. The commissioner deducted an ample supply, both of wheat and indian corn, for the consumption of mrs. Woodcock’s family and on the farm, for the year ensuing the testator’s death, which he allowed her, and charged her with the value of the residue amounting to 1214 dollars. The plaintiff claimed that his testatrix was entitled under the bequest in her husband’s will, to an absolute interest in all the crops he left on hand, and that, therefore, her estate was improperly debited with those sums.
    The fifth exception was to the omission of a credit claimed for mrs. Woodcock’s estate, for the interest that accrued during her life on a debt due upon a bond of one Richard Briarly to the testator’s estate for 4697 dollars, the principal and interest of which were collected by Dunbar, and applied to his own use. — The plaintiff claimed the interest of this debt that accrued during the life of his testatrix, as profits of the property bequeathed to her for life by her husband’s will. Dunbar’s executors insisted, that his estate ought not to be ^charged with the interest of this debt, on the following grounds: that the testator John Woodcock having declared and directed, on his deathbed, in the presence of mrs. Woodcock, that Dunbar should have the interest on Briarly’s bond, and that that bond and the interest upon it should go to the immediate use of Dunbar and his family, mrs. Woodcock delivered the bond to Dunbar, with intent to comply with the wishes of her husband thus expressed, and to relinquish to him all her interest in the debt due by the bond. And, accordingly, she gave Dunbar a written declaration to that effect (though it was not a sealed instrument) in the following words: “This is to certify, that the day before mr. Woodcock’s death, in my presence, in his directions to dr. Dunbar, as his appointed executor, he directed him to receive the interest of a bond of Richard Briarly due mr. Woodcock for fourteen hundred and odd pounds, with different credits on said bond, as it was the desire and direction of mr. Woodcock, that this bond and interest should be for the immediate use and benefit of dr. Dunbar and his family: X, therefore, do relinquish and agree that the same shall be applied to that purpose, as being the desire of mr. Woodcock. Given under my hand this 7th February 1809. (Signed) Frances Woodcock.” She afterwards signed, sealed and delivered to Dunbar, another instrument in the following words: “This is to certify, that in my husband’s lifetime, among the various and complicated business in which he was engaged for himself and for others, I never knew of any transactions in which he was engaged but what were conducted with the utmost justness and uprightness, and that I am confident no bond, note or paper, evidencing any debt due to himself or others, was ever cancelled by any promise, or any paper tending to cancel the debt, or to do any act or acts that would tend to that import, so as to prevent the recovery of the principal and interest, rents or profits, due to hiinself or others. And *further, .to save much trouble and to expedite the finishing of all the affairs relative to my husband’s estate, I hereby relinquish all my right, title and interest, of all bonds, notes, and every paper evidencing any debt due my husband’s estate, as having already received debts due the estate in lieu thereof. And I also further certify, that I never gave any paper or promise that would cancel any bond, note or paper, as before mentioned, so as to prevent the full recovery of every debt due m3' husband’s estate or the estate of others. Given under my hand and seal this 22nd November 1810.” On the other hand, the plaintiff adduced evidence to prove, that the recital in the instrument of the 7th February 1809, of Woodcock’s directions to Dunbar, on the day before his death, that he was to take the bond of Briarly, and the interest to accrue upon it, to the immediate use of himself and his family, was and could not be true, because (according to this evidence) Dunbar was not at the testator’s house and did not see him the day before, or for many days before, his death; and to prove further, that Dunbar had himself admitted in his lifetime, that the instrument of the 7th February 1809, and that of the 22nd November 1810, were executed and delivered by mrs. Woodcock to him, and intended by them both, to answer, the sole purpose of enabling him to collect the debts without any interference on her part: that, therefore, so far as those instruments expressed any other purpose, the instruments (which were written by Dunbar himself) were fraudulent impositions upon her ignorance or over confidence' in him. And this being the state of the evidence upon the point, the executor of mrs. Woodcock contended, that the commissioner ought to have credited the estate of his testatrix, and charged the estate of 1 Dunbar, with the interest on the debt due from Briarly that accrued during her lifetime: that the instrument of the 7th February 1809 was, like that of the 22d November 1801, intended as a mere power to *collect the debt; but if not, it was, at most, a nude contract ineffectual for want of consideration.
    The cause coming on for hearing upon the report of the commissioner and the exceptions thereto, the plaintiff objected as for error apparent on the face of the accounts, that the commissioner had proceeded on the supposition, that mr. Woodcock was entitled only to a life estate in the personal property bequeathed to her by her husband’s will, whereas the plaintiff claimed and insisted, that the will gave her an absolute right to all the personalty bequeathed to her; a claim which had been nowise before asserted, and was thus for the first time set up at the hearing.
    The court declared, that the bequest in the will of the testator John Woodcock had not the effect contended for by the plaintiff, of giving mrs. Woodcock an absolute interest in all the personal property thereby bequeathed to her, and that the bequest of the remainder thereof to Dunbar and wife, after mrs. Woodcock’s death, was good and valid. But the court further declared, that all articles, the use of which consisted in the consumption, such as corn, provisions, flour, hay, fatted hogs &c. were excluded by law from the limitation over to the legatees in remainder: that though some articles which indeed could only be enjoyed in the use, such as money, stock in the funds, or the like, were nevertheless to be accounted for after the death of the legatee for life to the remaindermen, yet even of these the capital only was to be accounted for, not the annual profits ; and by parity of reasoning the crops of the estate devise to mrs. Woodcock for life were not to be accounted for : that though the crops in question were made a the time of the testator’s death, yet 'they clearly passed by the bequest and devise of the use of all the rest of the testator’s estate to his wife; and the court could not say that her use of these crops should be more restrained than her use of the crops of succeeding *years, for which it was obvious she was not to account: and but for this construction, mrs. Woodcock would have been without support until she could have made a crop herself. Therefore, the plaintiff’s first exception to the commissioner’s report (above stated) was sustained. The court also sustained the plaintiff’s fifth exception, touching the interest which accrued on the bond of Briarly during mrs. Woodcock’s life; holding, that there was no reason to consider the alleged gift of that bond by the testator to Dunbar, a donatio causa mortis, as the counsel for Dunbar’s executors had contended; and a claim to it, as a gift or release from mrs. Woodcock to Dunbar, could not be supported. And the court, sustaining the p aintiff’s fourth exception also, and overruling the second, third, sixth and seventh, (all of which, as has been stated, presented mere questions of fact,) proceeded to give the following general instructions to the commissioner as to the accounts : that as to such articles as horses, wagons, implements of husbandry, and the like, the enjoyment of which might or might not consume the subject in the lifetime of the legatee for life, the following principles should be observed in stating the accounts: 1. Such as were returned in specie, though worn and impaired, were to be handed over in their then state to the re-maindermen ; 2. such as had died, or were entirely worn out, were not to be charged to mrs. Woodcock’s estate, though they were not forthcoming; 3. the principal (without interest) of what should appear to have been sold, was to be charged, unless it should appear that other property of the same kind had been substituted; and 4. such as from their nature, and from the circumstances, might reasonably be presumed to be dead or worn out, should not be charged. That as to flocks of sheep and the like, though they are principally enjoyed in the consumption, yet constituting a species of capital stock, they ought to be kept up in *kind, unless it should appear that they have been destroyed or impaired by casualty ; and that the same principle applied to brood mares kept as such by the testator, but not to mares kept principally for labour and other uses, and only occasionally put to breeding, nor did it apply to milch cows, which the tenant for life would not be bound to restore in kind. And the court made an interlocutory decree, recommitting the accounts to the commissioner, to be reformed according to its opinions upon the several exceptions.to the former report, and to the instructions above stated.
    At the next term, Dunbar’s executors filed a petition for a rehearing, for several alleged errors in the interlocutory decree apparent on the face of it, and upon additional evidence taken since the decree, upon some of the points therein decided, particularly the question touching the bond of Briarly, without alleging that this additional evidence had been discovered since the decree, so that it had not been in the power of the petitioners to produce it before the decree was pronounced. The additional evidence on the subject of Briarly’s bond, consisted in the deposition of a witness, proving that Dunbar was with the testator Woodcock at his house the day before he died: that the witness was present afterwards, when mrs. Woodcock delivered to Dunbar the bond of Briarly in question, along with other bonds, notes and evidences of debt; and that after Dunbar’s departure, the witness asked her, what induced her to deliver the bonds &c. to him; upon which she said, that he was to be put in possession of Briarly’s bond, and to have it, at the request of her deceased husband, and she was desirous of complying with her husband’s wishes, and that she did not wish to keep any of the papers or to be troubled with them. The court was of opinion, that the interlocutory decree of the former term should be opened for a rehearing as to any error apparent on the face of the decree; but that as to alleged *errors in point of fact, the case could only be reheard upon the evidence as it stood at the time the decree was pronounced, without regard to the additional evidence taken and filed, but not alleged to have been discovered, since the decree; which (the court held) was inadmissible, and could not be heard.
    The commissioner having reformed the accounts, according to the general instructions of the court, and its opinions on the plaintiff’s exceptions, contained in the interlocutory decree; and the cause coming on for hearing before the circuit superior court of Frederick, on the report thus reformed; the court so far altered its opinion on the first - exception, as to direct that mrs. Woodcock’s estate should be charged with the 210 dollars, the proceeds of the 56 barrels of flour which were on the way to market at the time of her husband’s death; still exempting her estate from accountability for the residue of his crops of grain on hand at his death, even for the surplus thereof after allowing her a full supply for consumption in her family and upon the farm, for the year ensuing the testator’s death; the value of which surplus was (as before stated) 1214 dollars. And the commissioner being directed to remodel the accounts by charging mrs. Woodcock with the 210 dollars, it appeared by his final report, that the estate of Dunbar was indebted to that of mrs.' Woodcock the sum of 3059 dollars, being a balance of the aggregate of interest on the annual balances found in his executorial account, computed to the closé of the accounts in September 1816; which balance, the commissioner reported, should bear interest from September 1816. And there being no exception to the report in this particular, the court decreed, that Dunbar’s executors should pay the plaintiff the sum of 3059 dollars, with interest from September 1816.
    Dunbar’s executors presented a petition to this court, praying an appeal from the decree; which was allowed.
    *The cause was argued here, by R. C. Stanard, Dyons and Heigh for the appellants, and by G. N. Johnson and C. Johnson for the appellee.
    I. The counsel for the appellee insisted, that mrs. Woodcock was entitled, under her husband’s will, to an absolute estate in all the personal property thereby bequeathed to her. Adverting to the language of the will, whereby the testator gave the use of all the residuum of his estate to his wife for life, and after her death gave the same of every description, as well the land bought of John Acre, as all the -other property remaining at her decease, to Dunbar and wife; they said, that the words “remaining at her decease” did not apply to the land, but did apply to all the other property; namely, to all the personal subject bequeathed. And thejr argued, that the testator intended to give the remaindermen only so much of all the other property as should remain at his wife’s decease; meaning, so much as she should not use or dispose of during her life; and if she had power to use or dispose of it, she took an absolute estate in the subject, and the bequest of the remainder after her death was nugatory. Riddick v. Cohoon, 4 Rand. 547; Grey v. Montagu, 3 Bro. Pari. Ca. 314; Sprange v. Barnard, 2 Bro. C. C. 585; Pushman v. Filliter, 3 Ves. 7; Bull v. Kingston, 1 Meriv. 314.
    The counsel for the appellants answered, that the subject having been first bequeathed to the use of the testator’s wife for life, in express terms, the bequest to Dunbar and wife of all the property remaining at her death, referred to the life estate previously given to her, and gave them what should remain after her use thereof for life, not what should remain undisposed of by her. In all the cases cited for the appellee, the property was given to the first taker indefinitely or expressly in fee, with an absolute power of disposition expressed or plainly implied, and then only what should remain undis-posed of by the first taker was ^limited over to the remainderman. Here, an interest for life only (in express terms) was given to the testator’s wife, and there were no words from which an absolute power of disposition could be implied for her, without the utmost violence of construction. They cited Upwell v. Halsey, 1 P. Wms. 651; Bradley v. Westcott, 13 Ves. 445; Madden v. Madden’s ex’ors, 2 Heigh 377.
    II. The counsel for the appellants maintained, that the opinion of the court of chancery sustaining the plaintiff’s first exception to the commissioner’s report, was erroneous. They said, mrs. Woodcock’s estate was accountable to the remainder-man, for at least so much of the testator’s crops of grain on hand and growing at his death, as exceeded the ample allowance made to her by the commissioner, for consumption in her family and on her farm during the ensuing year; in other words, for the surplus which was to be sent to market, and converted into money. The court of chancery held, upon this residuary bequest of articles quse ipso usu consumun-tur along with articles of a different description, that the legacy to mrs. Woodcock for her life gave her the whole property of all articles consumable in the use, and that all such articles were by law excluded from the limitation to the legatees in remainder; and then it held, that the surplus of the crops of grain, destined not for consumption at home but to be sent to market and converted into money, was to be classed among articles consumable in the use. Now, they said, supposing the first proposition correct in point of law, (which, however, they denied,) yet the surplus of the crops of grain that was to be used by being converted into money, could no more be regarded as consumable in the use than money: money, as well as the surplus of these crops, could not be used without being parted with. Articles quas ipso usu consumuntur, in the true sense of that phrase, were articles ^consumable by the legatee or donee for life in the use thereof in kind: but the surplus of the crops could only be used by the sale thereof and enjoyment of the proceeds. The surplus of the crops' could not be regarded as consumable in the use, merely because the subject was, in its nature, consumable in .food; that was not the way the testator intended the legatee for life should enjoy the use. The stock of corn of a corn merchant, the stock of wine of a vintner, the stock of cloths of a clothier, were intended, ultimately, to be eaten, or drunk, or worn; that is, to be sold to others who should so consume them; and if the principle of this decree were property applicable to the surplus crops of grain grown by a farmer for market, then, with as good reason, if a merchant dying with a stock of goods on hand, should leave them to his wife for life, with remainder to another, the legatee for life would take the whole property, and the bequest of the remainder would be nugatory. If, then, this had been a specific bequest of the testator’s crops on hand to mrs. Woodcock for life, remainder to Dunbar and wife, her estate would have been accountable to the remaindermen for the proceeds or for the value of the marketable surplus. Indeed, the allowance made to her by the commissioner of an ample supply for consumption during the year ensuing the testator’s death, was more than she was entitled to: for the testator died in September 1808, and by our statute of em-blements, 1 Rev. Code, ch. 104, $ 53, p. 388, she was entitled to demand, that the levies and taxes of the slaves, their tools, the expense of feeding them till the last of December following, and of then delivering them to her well clothed, should be deducted from the growing crop. And this was all that she was entitled to in absolute property. But this was not a specific bequest of the testator’s crops on hand: it was a general residuary devise and bequest of all the residue of the testator’s ^estate to his wife for life, remainder to Dunbar and wife; the residuum including lands, slaves, money, live stock, furniture, and farming utensils, as well as the crops on hand. In Randall v. Russell, 3 Meriv. 193, sir W. Grant, after stating, that doubts had arisen on the question as to the nature of the interest which a widow, as tenant for life, takes in articles (such as corn and hay) of which the use consists in the consumption, said, that his own conception was, ‘ ‘that a gift for life, if specific, of things quae ipso usu consumuntur, is a gift of the property, and that there cannot be a limitation over after a life interest in such articles: if included in a residuary bequest for life, then they are to be sold, and the interest enjoyed by the tenant for life.” In Madden v. Madden’s ex’ors, 2 Eeigh 389, judge Green, adverting to Randall v. Russell, declared his own opinion, “that even in the case of a specific bequest of such articles for life with a limitation over, the limitation is good: that the intention of the testator being in such case most obvious that the legatee in remainder should have the benefit of the subject after the death of the first taker, it ought to be carried into effect, if possible: and it may be effectuated by requiring the representative of the first taker to deliver articles of the same kind and quality, or to pay their value, to the remainderman.” It was not necessary here to discuss the point of difference between these able jurists: it never had been doubted, that in the case of a residuary bequest to one for life with remainder to another, including articles consumable in the use with others of a different kind in the same disposition, the representative of the legatee for life was accountable to the remainderman for the value of the whole subject.^ And the reason was quite obvious: the intention of the testator, in such a residuary bequest, was to give the same interest, both to the legatee for life and to the remainderman, in the whole subject, without discrimination. *Then, even if the crops of grain which the testator in this case had on hand at the time of his death, could possibly be regarded as articles quae ipso usu consumuntur, yet the legatee for life was accountable for them to the remainder-men. And her representative should have been held to account for the value, not only of the marketable surplus, but of the whole of the grain she received, except only so much of the crop growing at the testator’s death as our statute of emblements gave her. But further, in the general instructions to the commissioner, touching the live stock of horses, cattle, sheep, the furniture, the farming utensils, and the like, the court of chancery departed from the settled law on the subject. The representative of the legatee should have been held to account to the remaindermen for all those articles in value as they existed at the testator’s death and as she received them: he ought to have been required to deliver to the remaindermen other articles of like kind and quality, or to pay the value of them in money. Covenhoven v. Shuler, 2 Paige 122, 133; Bracken v. Bentley, 1 Ch. Rep. 110; Slanning v. Style, 3 P. Wms. 334; Eeeke v. Bennet, 1 Atk. 471; Bill v. Kinas-ton, 2 Atk. 82; Eoley v. Burnell, 1 Bro. C. C. 274.
    The counsel for the appellee did not controvert the general principles of law on which the counsel for the appellants rested their argument: they denied that they were justly applicable to the present case. The testator was a Virginia farmer, of moderate though competent estate, who had no offspring or any near relation to provide for but his wife. It was natural that he should leave his property to her to be enjoyed for the remainder of her days in the same manner as they had enjoyed it together during his life. As to his crops on hand, he would, if he had lived, have set apart a large portion of them for the consumption of his family: so much ought to be considered as dead victuals, intended *to be consumed during the year ensuing his death; and so much, therefore, without doubt, ought to have been allowed to his wife, for the maintenaee of herself and a family, until she could make another crop. And even as to the surplus of the crop of grain which he would have sent to market, he would, if he had lived, have laid out the proceeds in the purchase of other articles of subsistence of foreign growth, and of clothing, for his family. He could not have intended, in making provision for his wife, to subject her to the necessity of incurring a debt for necessaries, which -would be a heavy burden on her, in order to preserve, for the benefit of the remaindermen who had no natural claim on his bounty, a fund which he himself would have used to avoid the incurring of a debt for the same purposes. In giving his wife the use of the crops in question, he meant that she should have the use of them in the manner which was necessary for her comfort, and to the purposes to which such means were ordinarily applied. As to the specific chattels, the furniture, the farming utensils, and the live stock; they said, no Virginia testator, having a house and furniture, and a farm with stock upon it, and giving to his wife for life, the house and farm, with the furniture and stock, ever had any other intention than that she should enjoy the furniture and stock, as well as the house and farm, in kind. They appealed to the experience of the court, whether such testamentary provision for a wife, so common in this, country, was not always so understood, and so carried into effect. And furniture, farming utensils and live stock, being in their nature consumable in the use, or more properly (in the language of our statute, 1 Rev. Code, ch. 104, $ 47, p. 387,) being “liable to perish, be consumed, or rendered worse by keeping,” no Virginia testator making a bequest of such articles to his wife for life, to be enjoyed in kind, ever intended to make her debtor for the value of them at the time she received *them, however thejr should be impaired, worn out or destroyed, by time and use. No testator ever intended to impose such a burden upon his wife even for the sake of his own children; much less was it intended by this testator, for the benefit of remaindermen who were strangers to his blood. And he indicated very clearly, that he had no such intention', by directing that his estate should not be appraised ; thereby preventing the use of the only means by which the value of the subject at the time of his death could be ascertained: a direction which could have had no other essential purpose, but to save his wife from the very accountability which the remaindermen were now seeking to impose upon her representative. And it afforded an argument, equally applicable and forcible, of the justice of the opinion of the court of chancery on the first exception touching the crops, and of the correctness of its general instructions to the commissioner.
    III. The counsel for the appellants insisted, that the decree was erroneous in charging Dunbar’s estate with the interest which accrued on Bria'rly’s bond during the life of mrs. Woodcock. Upon the evidence as it stood when the cause was heard upon the commissioner’s first report, and on the exception of the plaintiff to the omission of the credit for the interest on that debt, which he claimed for the estate of the testatrix, it might be doubtful, whether the recital, in mrs. Woodcock’s instrument of February 1809, of the testator’s deathbed direction that Dunbar and his family should have the immediate use of that bond and the interest that should accrue on it, was true; it might be doubtful, whether that instrument had been fairly obtained from her; and doubtful, whether the fact alleged by Dunbar’s executors was true, that she had delivered the bond to him with intent to transfer to him, in his individual character, the interest she had in it as legatee. But the additional evidence on that point of the controversy, put the *state of facts alleged by Dunbar’s executors in regard to it beyond doubt. The court thought the additional evidence could not properly be heard. They insisted, that the court ought to have heard and weighed it. They said, that in our chancery practice, there was no necessity for a petition for a rehearing, or for a supplemental bill in the nature of a bill of review, for the correction of such errors of law or of fact in any interlocutory decree, as appeared upon the state of the case as presented by the pleadings and the evidence at the time the decree was pronounced. As it was within the court’s power, so it was surely its duty, to correct errors in its interlocutory decrees, pointed out by the parties, or suggested by its own reflection, before or at the final hearing. The question was, whether the court ought to admit new evidence on points determined by an interlocutory decree, when it was not alleged that the new evidence offered had been discovered since the decree. It might be supposed, that new evidence ought not to be admitted under such circumstances, because upon a supplemental bill in the nature of a bill of review of a decree not final, if the review was asked upon the ground of new matter, it could not be allowed unless the new matter was discovered since the decree. But the supplemental bill in the nature of a bill of review was a proceeding proper in the case of a decree really final, in its nature and its terms, and only technically not final. Mitf. Plead. 81, 2. The interlocutory decree in this case could in no sense be regarded as final: it consisted, in truth, of mere instructions to the commissioner on contested items of account. And they said, in our practice, there was no decree merely interlocutory, which might not be corrected upon new evidence adduced before the 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 delaj' 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 th'e ends of truth and justice. With knowledge of the existence of this practice, and aware that the opening of the cause for new evidence, upon motion for the purpose, had become matter of course, 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 of any case, either party may, without any order of court, obtain general commissions and take depositions tobe read therein.” Supp. to Rev. Code, ch. 103, § 9, p. 132. The new evidence, therefore, upon the controverted question in regard to Briarly’s bond, ought to have been received and weighed upon the final hearing. And taking up the question upon the state of facts which that evidence made indubitable, they thought there could hardly be a doubt, that mrs. Woodcock’s executor had no right to claim a credit for the interest which accrued on Briarly’s bond during *her life. If she had held that bond in her own right, and had transferred it by delivery to Dunbar, with intent to give him the debt thereby due, such transfer and delivery of the bond would have passed the property in the debt to Dunbar. And the question was whether, holding the bond as executrix of the obligee, and being entitled as legatee to the interest which should accrue upon ir during her life, the actual deliver of the bond by her to Dunbar, with intent to transfer to him all her right in it as legatee, and this intent declared by a written instrument, was a valid gift to him of her life estate in the debt due by the bond? To shew that it was a valid gift, a contract of gift executed and perfected, they cited the case of 31am v. Keen, 4 Eeigh 333. If it should be objected, that there was no consideration to support the alleged gift, that was no objection to the validity of a gift of a chattel interest, or of a gift of an interest in a bond more than any other chattel, perfected by actual transfer of possession with intent to transfer the right. There was at least as much reason to hold the contract in Elam v. Keen an executory one as the contract in this case. But, they said, even if this was only an executory contract on mrs. Woodcock’s part, yet it was founded on a consideration sufficient to support it. In consideration of the wish and purpose of her husband, declared on his deathbed in her presence, and acquiesced in by her at the time, she agreed, after his death, to release to Dunbar for the immediate use and benefit of himself and his family, the interest bequeathed to her by her husband’s will in this bond of Briarly: and this, though not a valuable, was a sufficient moral consideration to support the agreement. Dee v. Muggeridge, S Taunt. 37, 1 Eng. C. E. R. 10. And if the instrument of February 1809, being a simple contract, was not binding on her for want of consideration, her deed of November *1810 was a complete release of her interest in this bond of Briarly.
    The counsel for the appellee answered, that the release contained in mrs. Woodcock’s deed of November 1810, 'was inserted in it for the declared purpose of “saving trouble and expediting the finishing of the affairs of her husband’s estateand, in equity, the release, however general in its terms, should be limited to the accomplishment of its purpose. With regard to the instrument of February 1809, they insisted, that it was, upon its face, a mere agreement of mrs. Woodcock to release to Dunbar her interest in the debt due from Briarljr. And as there was no pretence of any valuable consideration, so there was no moral obligation on her part to release her rights, which could raise a consideration to support the agreement. The moral duty to do any thing which would afford a consideration to support an agreement to do it, must be a duty growing out of some act or omission of the party to be bound, importing benefit to the promiser or detriment to the promisee. Then, as to mrs. Woodcock’s actual delivery of the bond of Briarly to Dunbar; if the facts on which the executors of Dunbar rest their claim were proved, yet considering the double character which the parties sustained towards each other and in regard to the subject, each having a beneficial interest in the bond as legatee, and each an equal right to the possession of it as executor, the delivery was at the most an equivocal act, equally referrible to the transfer of the possession from one co-executor to the other, as to- a gift by the legatee for life of her interest to the legatee in remainder. And thus, this case was distinguishable from Elam v. Keen; there, the delivery of possession could only be attributed to the purpose of giving the bond; here, the legal rights of the parties remained exactly the same, after the transfer of the possession of the bond from the one coexecutor to the other, as before the transfer, and the transfer *of the possession was not necessarily referrible to the purpose of giving the interest of the one legatee to the other. But, they said, the state of facts on which Dunbar’s executors rested their pretensions, was not proved by any evidence which the court could or ought to regard. The evidence offered upon this point of the controversy, after the cause had been regularly brought to hearing, and the point had been determined bj' the court, without any pretence that this evidence had been discovered since the interlocutory decree, ought not to have been admitted. They said, it was the practice of our courts of chancery, 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 alone such bills of review could be allowed. Though the words of this statute were general, that from the filing of the bill until the final hearing of 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 interlocutor decree as well as by a final one.
    IV. The counsel for the appellants objected, that it was erroneous to give interest on the balance found against Dunbar’s estate from the close of the accounts in 1816. That balance consisted entirely of interest; and of interest on balances of principal in his executorial accounts, which balances had never been ascertained during his life; nor could he have known what he was bound to pay mrs. Woodcock, until the accounts between him and her were settled, and the moneys received by her, and with which she was chargeable, had been ascertained. The decree was a decree for interest upon a balance of interest.
    The counsel for the appellee said, the interest on the balances due on Dunbar’s ex-ecutorial accounts, was part of the annual revenue given to mrs. Woodcock by her husband’s will for her support, and Dunbar ought to have paid it to her as it accrued. The commissioner’s report gave interest' on the balance found due from Dunbar’s estate to that of mrs. Woodcock with interest from September 1816, and there was no exception to the report in that particular: it was too late to take the exception in the appellate court. Foreman v. Murray, 7 Leigh 412.
    *In the reply, it was said, that Foreman v. Murray was the case of a guardian’s account, in which the guardian was charged with moneys as for interest received by him from an executor, though it did not appear by positive proof that he had received it; and this charge was incorporated in the guardian’s account, and no exception was taken to it. Here, the balance consisted of interest, and the interest upon the interest was nowise incorporated in the account; the commissioner only suggested, that the balance of interest should bear interest.
    
      
       Will Life Estate in Chattels — Right of the Legatee for Life. — Where chattels are given by will to a person for his life, without any limitation over in remainder, the legatee for life has not absolute property in such chattels, but his estate is accountable to the estate of the testator for such chattels as the legatee, in his lifetime, sold and converted to his use, or his administrator, after his death, sold and converted to the use of such legatee’s estate; but such is not the case with such chattels as are consumed in their use {quae in usu consumuntur) in which the legatee for life has an absolute property. But, in order to vest in such legatee an absolute property in such chattels as are consumed in their use, they must be given as a specific, not as a general, legacy, and not as a part of the residuum. Bartlett v. Patton, 33 W. Va. 71, 74, 80, 10 S. E. Rep. 21, 22, 24, citing the principal case.
      Life Tenant in Chattels — Security for Return of Property upon Termination of Life Estate — When May Be Required. — A life tenant of personal property or money is entitled to the possession thereof and cannot be required to give security for the return of the property or money to those in remainder or reversion as a matter of course, but only as a matter of sound discretion in the courts to be exercised according to circumstances. Houser v. Ruffner, 18 W. Va. 252, 253. citing as its authority, among others, j the principal case. See further foot-note to Frazer v. Bevill, 11 Gratt. 9.
    
    
      
      Bonds — Gift of. — The principal case was cited in Lee v. Boat, 11 Gratt. 188. On the subject of gifts, see monographic note on “Gifts” appended to Barker v. Barker, 2 Gratt. 344. As to bonds, see mono-graphic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
      lnterlocntory Decree — New Evidence. — There is no rule of practice or of law which precludes a party from taking new evidence upon a question of fact passed upon by 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, the principal case, and Moore v. Hilton, 12 Leigh 1.
      The Code of 1873, ch. 172, § 36 (Va. Code 1887, § 3363), provides, “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.” In Richardson v. Duble, 33 Gratt. 739, Staples, J., in delivering the opinion of the court, said that this provision was, no doubt, adopted with a view to remove a difficulty, and some .uncertainty in the practice growing out of the decision in Dunbar v. Woodcock, 10 Leigh 628, 654; and in Moore v. Hilton, 12 Leigh 1. Continuing, the judge Says: “In the first named case (i. e., the principal case), the court held, that an opinion of the low;er court given in the progress of an account upon exceptions to a report, or instructions to a commissioner, as to the propriety of allowing items of debit'and credit, is not such a final decree, as precludes a party from taking new evidence touching the same question, without having obtained a review or rehearing of the decree.
      "In Moore v. Hilton, it was held, that after an interlocutory decree on a hearing, neither party has the absolute right to introduce new evidence in respect to a matter decided ; but the right to introduce and use such evidence as a ground for changing or setting aside such decree, depends on the sound, judicial discretion of the court, and the sufficiency of the excuse for the failure to produce the testimony in due time; to be offered to the court upon a motion or petition for a rehearing.
      “Under the present statute, when there has been an interlocutory decree, a deposition taken thereafter, cannot he read as to any matter thereby adjudicated, unless indeed as the foundation fora motion or petition to rehear the cause. If no interlocutory decree has been rendered, or even though one has been rendered, a deposition taken, and returned before a final hearing as to any matter not adjudicated, may be read. But the right is not an absolute one. The statute does not say the deposition shall he, but it may be read.”
      Same — Bill of Review. — To the point that an interlocutory decree cannot he reversed upon a bill of review, the principal case is cited in Suckley v. Rotchford, 12 Gratt. 70. See also, monographic note on “Bills of Review” appended to Campbell v. Campbell, 22 Gratt. 649.
      Decrees — When Interlocutory. — In Butler v. Butler, 8 W. Va. 674, 678, the fourth headuote reads, “An order directing a special commissioner to pay a certain sum of money to general creditors according to priorities, 'if amj there he'; not designating the creditors, the sum or wo rata sum they are entitled to, is an interlocutory order, and the court pronouncing the order has the fight to retain the canse for a future direct action upon all matters that the interest and convenience of the parties, and the very'justice of the case requires." The court bases its decision upon the authority of the principal case, and Cocke v. Gilpin, 1 Rob. 20.
    
    
      
       Commissioner's Report — Interest on Interest. — On all matters pertaining to interest, see monographic note on “Interest” appended to Fred v. Dixon, 27 Gratt. 541. As to reports of commissioners in chancery, see monographic note on ' “Commissioners in Chancery” appended to Whitehead v. Whitehead, 23 Gratt. 376.
    
   SCOTT, J.,

delivered the opinion of the court- — That the rule which gives to a legatee for life, the absolute property in articles consumable in the use, is applicable only to such as the testator intended for consumption, not to such as in the ordinary course of business are for sale. That the commissioner in his first report, properly allowed to mrs. Woodcock so much of the crops left by the testator on hand as was necessary for consumption in her family and on the farm, and properly charged her with the proceeds and value of the surplus; and, therefore, the first exception of the appellee to that report ought to have been overruled. And that the general instructions of the court of chancery to the commissioner, in regard to such articles as horses, wagons, implements of husbandry, and the like, the enjoyment of which might or might not have consumed the subject during the life of the legatee for life, and in regard to flocks of sheep and such like, were, in this case, proper.

That mrs. Woodcock’s gift of Briarly’s bond, or of her interest in it, to Dunbar, was valid; and, therefore, the interest which accrued on that bond during her life, ought not to have been charged to his estate. That the opinion, declared in the interlocutory order of the court of chancery, sustaining the appellee’s fifth exception to *the commissioner’s first report, for omitting that charge against Dunbar’s estate, might have been, upon the state of facts then appearing, and probably was, correct; but without deciding whether it was so or not, the court was of opinion, that, upon the evidence subsequently filed, that exception ought also to have been overruled. That the court, without intending to say what would be a final decree, which would preclude a party from taking new evidence without having obtained a review or rehearing, was of opinion, that an opinion given, in the progress of an account, upon exceptions to a report, or instructions to a commissioner, as to the propriety of allowing items of debit or credit, was not such a final decree; and therefore the new evidence in this case ought to have been received and considered.

That the court of chancery erred, in sustaining the appellee’s fourth exception to the commissioner’s first report, and properly overruled his second, third, sixth, and seventh exceptions thereto.

And that the court of chancery erred, in decreeing interest on the balance reported against Dunbar’s estate, from September 1816.

Therefore, the decree was reversed with costs, and the cause remanded to the circuit superior court of Frederick, for further proceeding's to be had therein according to the principles declared in this decree, with instructions to allow interest on the balance which may be found due from the date of the final decree.

Decree reversed, and cause remanded.  