
    *Hill & Wife v. Huston’s Ex’or & Others.
    July Term, 1859,
    Lewisburg.
    1. Legacies — Coupled with a Condition — Effect of Acceptance. — A party acceptin g a legacy coupled with a condition, may bind himself to the performance of the condition, although the burden may exceed the benefit.
    2. Sanie — Same—What Necessary to Bind Legatee.— But to bind a party in such a case, it must appear that he elected to accept the legacy and perform the condition with full knowledge of all the facts and circumstances necessary to enable him to make a judicious choice. To make an election conclusive, the party must be informed as to the relative values of the things he elects between.
    3. Same — Same—Effect of Acceptance under Mistake.— where a party has made an election without sufficient information, or under a mistake, he will be relieved against the consequences, upon the terms of restoring other persons, whose rights may be affected by his acts, to the same situation as if those acts had not been performed.
    4. Same — Legatee to Pay Testator’s Debts — Liability of Legatee. — A bequest of testator’s whole property to a legatee, in consideration of which she is to pay testator’s debts, though accepted, does not bind the legatee to pay the debts beyond the value of the legacy.
    5. Wilis — Rule of Construction. — In construing wills, courts are not bound to give a strict and literal Interpretation to the words used, and by adhering to the letter defeat the manifest object and design of the testator.
    6. Same — Use of Property by Executrix — Liable Only for Rent. — A case in which an executrix holding and employing the estate of testator in her business, held not to be bound for profits, but only for a rent.
    In 1841 Archibald W. Huston and William W. Pollock entered into a partnership for the purpose of keeping a hotel in the town of Harrisonburg, in the county of Rocking-ham; and for the purpose of the partnership they purchased a house and lot, which was afterwards known as Pollock’s hotel. By the terms of the partnership the house was to be kept by Pollock. In 1843 they purchased another house and lot which had been known as the Washington tavern.
    In October 1844 Huston died, having made a will, *by which he gave to his widow a tract of land for her life, and personal property; and directed his executors to sell all the rest of his real estate; except that they were not to sell his interest in his houses and lots in the town of Harrisonburg under five years from the period of .his death ; and until the real estate was sold, the executors were to rent the same, or so much as they considered it proper to rent, either by public or private contract, as they might consider proper.
    At the end of the year the executors rented to Pollock, Huston’s moiety of the houses and lots at three hundred dollars a .year. Bat Pollock died in February 184S, having' made a will containing a single bequest, which was in the following words:
    ‘T give and bequeath to my beloved wife Jane Pollock, my whole and entire estate of every description; but for and in consideration whereof, she is to pay all my just debts.” And he appointed her his executrix, with authority to qualify without giving security; which she accordingly did.
    The separate estate of Pollock was appraised after his death at nine hundred and thirteen dollars and sixty-nine cents; and his debts amounted to twelve hundred and ninety-one dollars and forty-three cents. Mrs. Pollock kept the hotel on her own account; and whilst it does not appear that there was any agreement between herself and the executors of Huston, as to the terms upon which she was to hold the property, she and they seem to have considered that she held the moiety belonging to the estate of Huston, at a rent of three hundred dollars a year; that being the amount for which the executors had rented to her husband for the year 184S.
    In 1850 Mrs. Pollock married John N. Hill; and in April 1852 Hill and wife filed their bill in the Circuit court of Rocking-ham county, against Huston’s executor, and his widow and children, in which they set out *the facts herein before stated ; but alleged that Mrs. Pollock declined taking the property under the will of her deceased husband, though she made no record renunciation of it. That in fact there was nothing to take under the will, as the debts of her husband were greater than there were means to pay them.
    They further stated that it was understood by all the parties concerned, that Huston’s interest in the. partnership property could not be sold for five years from his death; and to have sold the one undivided half belonging to Pollock’s testate, could not have been done without a great sacrifice. That Mrs. Pollock was aclvised to rent the property at the former rate of six hundred dollars a year, which was assented to by Huston’s executor; and she had thus continued to rent it. That she, and since her marriage her husband, had paid debts of the partnership of Pollock & Huston, amounting to near five thousand dollars; and it was feared the partnership property would not be sufficient to pay the debts of the concern ; and as Pollock had no separate property after paying his individual debts, the complainants desire the court to determine who shall be compelled to make up the deficit: were the complainant Hill and the estate of Huston equally bound, or was the estate of Huston bound for 'the whole amount. And they prayed for a sale of the partnership property; that the amount due to Hill might be paid, and for an account of the debts of the concern.
    The defendants in their answers, concur with the plaintiffs in their apprehensions that the partnership property will not be sufficient to pay the debts, and in the prayer for a sale; and the widow and children of Huston say that they were of opinion until the last year, and so understood Mrs. Pollock, that Mr. Pollock died solvent, and that the property of the firm was sufficient to pay the debts; and they always understood -^Mrs. Pollock and her present husband as claiming precisely the same title and ownership in the property, which was held by Pollock himself in it. And they insist that Mrs. Hill did accept the devise under her former husband’s will. They say that their confident expectation for a considerable period was, that after discharging- the debts there would be a surplus; and they have reason to believe that this opinion was entertained by Mrs. Hill.
    In October 1852 there was a decree for the sale of the real estate of the partnership, and also for an account of the debts of the concern. And the commissioner for the sale of the real estate reported that he had sold the property called Pollock’s hotel to the plaintiff Hill at the price of seven thousand seven hundred dollars, and the Washington tavern at the price of six thousand eight hundred dollars. The commissioner directed to take an account of the debts and assets of the firm, reported the amount of the debts with "interest thereon up to May 5th, 1855, at twenty-four thousand eight hundred and seventy-six dollars and ninety cents; and the assets of the firm, including the proceeds of the sales of the real estate, at twenty-two thousand eight hundred and nine dollars and fifty-two cents: In this account of assets was included a rent of the property from the death of Huston at six hundred dollars a year. And according to this account the debts exceeded the assets by the sum of two thousand and sixty-seven dollars and thirty-eight cents. The debts of the firm had all been paid either by Bryan the executor of Huston, or by Mrs. Pollock before her marriage, and her husband since that event. JSTo separate statement is made of the amount paid by these last; but there was paid by them out of the assets of the firm and out of the profits of the hotel whilst kept by them, or from other unknown sources, about fourteen thousand three - hundred dollars; *mtich the larger part of it, as the appellees contended, out of the profits of the hotel. There was no exception to the report, except by one of the creditors, whose claim was disallowed.
    There was no direct proof, either written or oral, that Mrs. Pollock had ever declared in terms her acceptance of the bequest under Pollock’s will. But he having left four infant children, she kept possession of the property precisely as Pollock had done, holding one moiety as rented from Huston’s executor, treating and speaking of the property as her own, keeping no accounts as between herself and the children ; or as executrix; but keeping an account as between herself and the firm of Pollock & Huston ; and even in this case not alluding to the fact that her children were interested in the propertjq or making them parties in the cause, until it was done by an amended bill, simply bringing them before the court.
    The cause came on to be finally heard on the 26th of May 1856, when the court confirmed the report; and being'of opinion that the female plaintiff had accepted the devise under the will of her former husband William W. Pollock, and by her acceptance made herself individually liable for one equal moiety of the debts of the firm of Pollock & Huston; and that the plaintiff John N. Hill, by his intermarriage with the female plaintiff, became legally liable for the debts of his wife, decreed that after the social assets of the firm of Pollock & Huston were exhausted, the debts which then remained unpaid should be discharged, one-half thereof by the plaintiffs Hill and wife, and the other half by the executor of Huston out of the assets in his hands. Prom this decree Hill and wife applied to this court for an appeal; which was allowed.
    Michie, for the appellants,
    admitting the principle *that a devise or bequest upon the condition of paying the testator’s debts, if accepted by the dev-isee or legatee, would bind him to pay them, insisted :
    1st. That the acceptance must have been made with full knowledge of all the facts, as to the condition of the estate; or that by her own acts she had rendered it iniquitous to avoid the responsibility. And this, he insisted, was fully sustained by the case of Messenger v. Andrews, 3 Cond. Eng. Ch. R. 761; which was the only case in which the debts exceeded the value of the bequest.
    2d. That Mrs. Pollock had not accepted the devise and bequest to her. And he went into a full investigation of the evidence to sustain his proposition. And he insisted further, that if she had accepted the bequest, it was done in ignorance of the condition of the estate, so that she would not be bound by it. And certainly she had done nothing which would render it iniquitous in her to avoid the responsibility. The sales which had been made showed that the property had greatly enhanced in value since the death of Pollock.
    3d. That the appellants were not liable for profits. Mrs. Pollock rented the property, taking her husband’s moiety at the rent which Huston’s executor considered sufficient for his; and the profits made were her own, made by her own labor and management. That no question had been made in the court below as to liability for profits ; but it was made in this court for the first time; and there was nothing to show that profits had been made.
    Woodson and Grattan, for the' appellees, insisted:
    1st. That if Mrs. Pollogk accepted the devise under Pollock’s will, she was bound to pay his debts, though they exceeded the value of the devise. They referred to many cases, from Collier’s Case, 6 Coke’s R. 16 a; *Wellock v. Hammond, Croke Eliz. 204, down to the present da3% both in England and this country, in which a devise upon a condition to pay the testator’s debts was held to give the devisee a fee, upon the ground that it bound him to pay the debts. Among them were, Moone v. Heaseman, Willis’ R. 138; Doe v. Richards, 3 T. R. 356; Denn v. Meller, 5 Id. 558, 1 Bos. & Pul. 558, 2 Id. 249; Baddeley v. Leppingwell, 3 Burr. R. 1533; Doe ex dem. Thorn v. Phillips, 23 Eng. C. E. R. 178; Abrams v. Winshup, 3 Cond. Eng. Ch. R. 429; Jackson v. Bull, 10 John. R. 19; Jackson v. Martin, IS Id. 31; Gibson v. 'Horton, 5 Har. & John. 177; Cook v. Holmes, 11 Mass. R. 528.
    They insisted further, that a court of equity would enforce this liability. Attorney General v. Christ’s Hospital, 3 Bro. Ch. Cas. 165; Talbot v. Earl of Radnor, 9 Cond. Eng. Ch. R. 22; Earl of Northumberland v. Marquis of Gramby, 1 Eden’s R. 489, 2 Amb. R. 540, 647; Messenger v. Andrews, 3 Cond. Eng. Ch. R. 761; Spraker v. Van Alstyne, 18 Wend. R. 200; Harris v. Ply, 7 Paige’s R. 471; Gardner v. Gardner, 3 Mason’s R. 178, 207-8; Wright v. Denn, 10 Wheat. R. 204; Vanmeter v. Vanmeter, 3 Gratt. 148.
    And they examined the evidence, and insisted that she had accepted the devise under Pollock’s will; and had held the property under it, making very large profits.
    2d. That if Mrs. Pollock did not accept the devise, she held the property as executrix, and was bound to account for the profits she had made. That a surviving partner carrying on the business with the partnership effects, is bound to account for the profits. 3 Kent’s Com. 64, and note c; Brown v. Eitton, 1 P. Wms. R. 140; Craw-shaw v. Collins, 15 Ves. R. 218, 230, 1 Jac. & Walk. 267; Peatherstonhaugh v. Penwick, 17 Ves. R. 298, 309, 310; Sigourney v. Munn, 7 Conn. R. 11, 324; Brown v. De Tastet, 4 Cond. Eng. Ch. *R. 133.
    And an executor carrying on trade with his testator’s assets shall not be allowed to make profits, though he makes himself personally liable in the business. 2 Eomax Ex’ors 283, 284; Watson, ex parte, 2 Ves. & Bea. R, 414; CollyerPart. § 603, 604; Wightman v. Townroe, 1 Maulé & Sel. R. 412; Beathcote v. Hulme, 1 Jac. & Walk. 122, 131; Thompson v. Brown, 4 John. Ch. R. 619.
    
      
      Tlie principal case was cited, and approved in Taliaferro v. Day, 82 Va. 95, as to the proposition laid down in the first headnote.
    
   ROBERTSON, J.

There can be no doubt that a party may, by accepting a legacy coupled with a condition, bind himself to the performance of the condition, although the burden may exceed the benefit. But it must appear that he elected to accept the legacy and perform the condition, with full knowledge of all the facts and circumstances necessary to enable him to make a judicious choice. To make an election conclusive, the party must be informed as to the relative value of the things he elects between. And where he has made an election without ' sufficient information, or under a mistake, he will be relieved against the consequences upon the terms of restoring- other persons, whose rights may be affected by his acts, to the same .situation as if those acts had not been performed.

Hill and wife deny that she ever accepted the provisions of the will of her former husband, Pollock; but I do not consider it necessary to enter upon an examination of this question, because even if it be admitted that she did accept them, and that the construction placed upon the will by the Circuit court is correct, it seems to me to be quite clear, on applying the foregoing well 'established principles to the case, that she is not bound by such acceptance, and ought to be relieved from its consequences.

It cannot be xiretended that she made the election with information as to the condition of the estate ; *that she knew it was insolvent, and that she was assuming a charge instead of deriving a benefit by taking under the will.

Nor can it be said that injury has resulted to any one from the course she has pursued. On the contrary, it appears that the property while in her possession and tinder her management, increased in value; and that the fund for the payment of debts was largely augmented. Pollock’s creditors and the estate of his deceased partner have thus been benefited, and of course can have no right to complain that she did not make known at an earlier day her determination not to take under the will. Besides, the delay in bringing matters to a close was in a great degree attributable to the provisions of Huston’s will prohibiting the sale of his interests in the partnership property from being made within five years after his death.

I think, therefore, that supposing Mrs. Hill to have made an election, she should have been permitted by the court to reconsider it, and to relieve herself from liability for the debts of her former husband, by giving up his property to his creditors.

On another ground also it seems to me fhat the decision of the Circuit court is erroneous.

I am of opinion, that upon a proper construction of Pollock’s will, his widow was not required to make an election ; and that her taking under it could not impose upon her any liability, beyond the value of the estate, for his debts.

No case of election, under a will, can ever arise, unless the intention of the testator to require the party to elect is clear and decisive. 1 Jarman on Wills 393; Crump v. Redd’s adm’r, 6 Gratt. 372.

Such intention never exists, unless the testator designs a benefit for some other party, who, as well as the legatee put to the election, is the object of his bounty.

xTn this case, the whole estate was given to the wife, to the exclusion of even the children of the testator. There was no object of his bounty in whose favor he could have designed an election to operate : For it cannot be supposed that he intended to make his creditors objects of his bount5' at the expense of his wife: that, knowing his estate to be insolvent, he devised it to her, with the view of imposing upon her the obligation of paying his debts, however much their amount might exceed its value; and of thus taking from her, and from his and her children, the means of support, which after his death, she might acquire by her own industry. Yet we must believe all this before we can come to the conclusion that he intended to g'ive her his estate only upon the condition that she should become pei-sonaily bound for his debts, whatever their amount might be.

But it may be said that while it is clear he did not design this, such is the effect of his will. That he was himself mistaken as to his pecuniary condition, and did not foresee the consequences of the provision he made; and that the will, being clear and unambiguous in its language, must be carried into effect even although the result may be different from what he anticipated.

There can, I think, be no doubt that he was mistaken as to the situation of his affairs, and supposed there would be something left for his wife after the payment of his debts. This made him perhaps less cautious in his language than he might otherwise have been. If he had doubted the sufficiency of his estate to pay his debts, he would probably have used terms about which no controversy could have arisen.

But the whole question is at least one of intention : for, as has been shown, a legatee can never be required to elect unless the testator intends it: and can the fact that the testator labored under a mistake like this *create an intention for him, which we know never could really have existed for an instant in his mind?

In construing wills, courts are never bound to give a strict and literal interpretation to the words used, and by adhering to 1he letter, defeat the manifest object and design.

When, in this case, we look at the will itself; the relative situation of the parties; the obvious purpose to benefit the wife; the improbabilitjq nay the absurdity of the idea that the testator intended to charge her personally, beyond the value of the estate he gave her, with the payment of his debts; we cannot hesitate in deciding that the will properly construed means no more nor less than that the widow should take the whole estate subject to the payment of the debts of the testator.

But it has been insisted in the argument here, that if Hill and wife are not liable for the payment of Pollock’s debts by reason of her accepting the provisions of his will, they are at least bound to account for the profits made from his estate after his death, and that those profits greatly exceed the rents with which they have been charged.

Numerous cases have been cited to show that a surviving partner carrying on business with the partnership effects, must account for the profits; and that an executor carrying on trade with the assets of his testator, is held accountable for all profits, even though he makes himself personally liable in the business.

These are unquestionably well settled rules of law, but they have no application to this case.

No question arises as to the liability of the surviving partner for profits; for Pollock did not, after the death of Huston, continue the business as surviving partner, but became tenant of the property at a rent agreed upon between him and the executor of Huston: And there is no good ground for insisting that *his executrix made herself liable for profits, either to the firm, or to his estate.

No such liability was suggested in the court below. No account of profits was asked for or ordered; and there is nothing to show that profits were in fact made. But if it be conceded that profits were made, she is not bound to account for them. She subjected the assets tono risk or hazard; and cannot be considered, in the sense of the rule referred to, as having continued them in trade. She is properly to be regarded as a tenant of the property; and least of all, • have the appellees any right now to treat her otherwise.

In the account filed as an exhibit with the bill, she is charged with rent for the whole property, at the same rate which had been agreed upon as to Huston’s moiety, between her husband in his lifetime and Huston’s executor. This account was made out under the supervision and with the aid of Huston’s executor, and of his adult children, and was admitted by them to be correct, as far as the data in the possession of the parties at the time enabled them to state it. The correctness of the charges of rent was not only then acquiesced in by all parties, but in the report of the commissioner, made under the order of court, the same charges were continued without objection from any quarter. This report was confirmed, and the decree now appealed from was entered in favor of the appellees in conformity with it.

Under these circumstances, it cannot be doubted that Mrs. Hill must be considered as having held the property as tenant, at a fair rent, for which she has duly accounted.

The appellants are in no way liable for the debts of the firm of Pollock & Huston, the estate of Huston being alone liable after the social assets shall have been exhausted, inasmuch as the whole of the individual ^assets of Pollock’s estate have been absorbed by his own debts.

To the extent that the appellants have paid debts of the firm out of their own funds, they must, after the exhaustion of the social assets, be reimbursed by the estate of Huston.

I think the decree should be reversed, and one entered in conformity with the foregoing opinion.

ALLEN, P., and MONCURE and LEE, Js., concurred in the opinion of Robertson, J.

DANIEL, J., dissented.

Decree reversed.  