
    Hunt vs. Watkins and Winbush.
    Hunt devised a tract of land, some slaves and personal property to his wife during her life, and at her death, his debts being first paid, to Winbush. The tenant for life and the remainder-man agreed that the farm sho uld be cultivated by the slaves, which was done, and the debts paid out of the annual proceeds of the farm so cultivated: Held, that the debts were a charge Upon the property devised, and in the absence of such an arrangement as was made it would have been his duty to have sold the personal property and satisfied the debts. In such event the loss of each owner would have been in proportion to his interest in tire property.
    Where the debts of a testator are discharged by the proceeds of the estate during the existence of the life estate by arrangement with the remainder-man, the remainder-man must reimburse the amount so paid to the representative of tenant for life.
    It is the duty of tenant for life to keep down the interest of debts charged upon the estate devised, and no more.
    Where a crop has been made upon the estate by tenant ior life, who dies before it is gathered, his or her representative is entitled to the value of such crop, deducting therefrom the cost of gathering it, taking it to market, &e.
    As to stock and personal property left by testator, if increased in value during the existence of the estate of tenant for life, his or her representative would be entitled to such increased value; if diminished in value, his or her representative would be bound to make up the diminution.
    Tho representative of a tenant for life is entitled to interest which accrued during the tenancy on a sum of money due testator though not collected till after his death.
    On the 27th day of May, 1833, Christopher Hunt, a citizen ' of Fayette county, made his last will and testament. The first clause in this will is in the following words:
    “1. I give and bequeath unto my beloved wife, Sarah Hunt, and to her heirs forever, all real and personal estate which X received by her, and all other estate which I shall or may receive of her deceased father’s estate. I also lend to my beloved wife, daring her natural life, all of my own estate that I have not given to her, or such part as I may otherwise devise in this my last will, that is, all of my real and personal estate after all of my just debts are paid.”
    The fourth clause is in the following words:
    *‘4. I give and bequeath unto John H. Winbush, of Halifax county, Virginia, all my real and personal estate that I have loaned my wife, at her death, to him and his heirs forever; and lastly, as to all the rest and residue of my personal estate, of what nature soever, I give and bequeath to my beloved wife, Sarah Hunt.”
    He appointed Richard Watkins and John H. Winbush his executors. In November, 1834, he died, and his will was proven and recorded in Fayette county, according to law. Winbush renounced and Watkins was qualified as executor.
    The property of the testator consisted of a tract of land containing about five hundred acres, thirty-nine slaves, farming utensils, stock, and some other personal property. Thirteen of the thirty-nine slaves were acquired by the testator in right of his wife. The debts amounted to nine thousand and sixty-seven- dollars and eighty-five cents. Mrs. Hunt and Winbush agreed to keep the slaves together and cultivate the farm and with the proceeds pay off the debts, and that she in the meantime should be comfortably and genteelly supported. Accordingly, an arrangement for delay having been made with the creditors of the estate, none of the real or personal property was sold, and the entire estate of which Hunt died possessed was kept together and the farm successfully cultivated by Watkins with the property given absolutely to Mrs. Hunt and that loaned to her combined.
    Mrs. Hunt died on the I4th October, 1836, after the crop of that year was made but not gathered, having previously made her will without appointing an executor. N. Hunt was appointed administrator with the will annexed by the-county court of Fayette county, and qualified as such, and; took out letters of administration. Nathaniel Hunt received of Watkins, executor of Christopher Hunt, deceased,, the property devised-absolutely to Mrs. Hunt;,, and filed this bill in the chancery court at Somerville in the month of May, 1837, against Watkins, executor, and Winbush, remainder-man, praying a decree against them for the amount of the debts paid by the proceeds of the entire estate of the, deceased testator. The defendants answered, replications' were filed, proof was taken, and at the June term, 1838, the honorable M. Brown, chancellor, presiding, the cause came on to be heard on the bill, answers, replications and proof. The chancellor being of the opinion that the debts of the estate of C. Hunt, deceased, were an incumbrance on the entire estate, and that the tenant for life, S. Hunt, and the remainder-man, J. H. Winbush, were bound to discharge them in proportion to the interest they acquired under the will, and the debts of the estate of C. Hunt having been paid out of the proceeds of the estate during the existence of S. Hunt’s life estate, said Winbush was bound to reimburse to the representative of the said Sarah in proportion to the benefit received by him, ordered, adjudged and decreed that the clerk and master should report the relative proportion which Sarah Hunt’s life estate at the death of C. Hunt bore in value to the estate in remainder of C. Hunt at the death of said Christopher, and other matters not necessary to be specially set forth.
    At the November term, 1838, the clerk and master made his report, and taking into consideration the age and infirm health of the tenant for life, reported that the estate of the tenant for life stood to the estate in remainder in the relative proportion of one-third to one; and an additional report being required on minor points, the same was returned at the June term, 1839, at which term the honorable G. W. Gibbs presiding, confirmed the report of the clerk and master, and decreed that Winbush reimburse the representative of tenant for life two-thirds of the debts, and ordered and decreed that complainant pay one-third of the costs and that defendants pay the remaining two-thirds. Defendants appealed,
    
      G. D. Searcy, for complainant.
    The first question raised by the facts is, whether the representative of tenant for life is entitled to reimbursement for money paid in discharge of in-cumbrances upon the estate. The following positions'' are abundantly established by the books:
    1. A tenant for life is not bound to pay off incumbrances. 1 Yes. jr. 234: Gilb. Ev. 69: 1 Ves. sr. 93: 1 Story, 466: 1 Cruise, 109.
    
      2. Tenant for life is only bound to keep down the interest on incumbrances. Same authorities: Brown’s 0. R. 658.
    3. Tenant for life cannot be forced directly to pay off in-cumbrances, though directly he may by the remainder-man purchasing in the incumbrance, and in that case tenant for life must contribute in proportion to the benefit received by him. Powell on Mort. 903: Gilb. Ev. 69: 2 Yes. and B. 65: 4 Yes. 33: 1 Story’s Eq. 466.
    Where tenant for life pays off incumbrances he becomes a creditor on the estate for the amount paid. 1 Brown C. C. 206: 1 Cruise, 110:’ 1 Story’s Eq. 464.
    The fact of payment by the tenant for life prima facie makes him a creditor for the amount paid, upon the ground that with his limited interest he could not be presumed to discharge the estate of another person. But this presumption may be rebutted by circumstanses demonstrating a contrary intention. 1 Story, 464. In this case there is neither act nor declaration on the part of tenant for life which can be construed into an intention to benefit the remainder-man.
    The next question involves the correctness of the interlocutory decree of the court below. The only case where a tenant for life can be compelled to contribute beyond the interest is where the remainder-maff'purchases in the incum-brance during the continuance of the life estate. The reason is, the estate in remainder being the greater estate is chargeable with the debt, while the less estate is chargeable with the interest only. The remainder-man; therefore, stands in the situation of debtor, and when he discharges the incumbrance the debt becomes extinguished. He cannot call on the tenant for life to pay interest, because there is no debt upon which interest can accrue. But the tenant for life having received a benefit from the payment, and it being impossible from the uncertain duration of his estate to ascertain with precision the interest conferred upon him, the only equitable rule which can be adopted is to make him contribute in proportion to the relative value which his estate bears to the estate in remainder. The same rule does not apply where tenant for life pays off the incumbrance; in such case the debt is not discharged; it still remains in his hands a charge upon the estate, and he becomes a creditor for the amount - paid. In other words, he takes the estate with the qualification of having no interest to pay, and becomes a creditor for the full amount paid by him.
    
      Meigs, for Winbush.
    The words “after payment of my debts,” in the will, mean that the testator gives nothing till his debts are paid. 3 Yes. 739. They also mean, in the connection in which they stand in this particular will, that the testator’s real estate is charged with his debts after the personalty shall have been first applied to them and exhausted; in other words, that the real estate is made a security collateral to the personalty for the payment of the debts. 2 John. Ch. Rep. 624. From this disposition of the estate it is inferred: First, that the executor could, at his discretion, either have hired the negroes loaned to Mrs. Hunt for two years and applied the proceeds to pay the debts, or, secondly, that he could have sold so much of the personal estate as would have been necessary to pay the debts; and as a consequence of this power and right of the executor, thirdly, that the tenant for life had no right for two years to the use of the personal property loaned her, and therefore can be entitled to no account thereof. 2 Dev. Eq. Rep. 425: 1 Hill’s Eq. Rep. 373-4.
    2. It is insisted that the case stated in the bill, namely, that the executor kept the whole estate together and used it, and excluded Mrs. Hunt against her consent from the use of it, is not supported by the proof; but that the case stated in the answers, to wit, that the property, real and personal, including that given and that loaned, was kept together and used by the executor by the express request of Mrs. Hunt, and in consideration of the prospective advantage to be derived from the enjoyment of' the whole estate after the payment of the debts during the period of her life, which she had the usual right to anticipate might be long, is made out by the proof. Upon this state of the case the pleadings, exhibits and proof evince that every particle of the product of the estate charged with the debts, and employed by the executor to raise money to pay them, was applied and exhausted in the payment, first, of the debts owed by the testator at his death; secondly, in the payment of debts - contracted in the management and on account of the estate; thirdly, in the payment .of the debts of Mrs. Hunt, created in the maintainance of her domestic establishment and for other purposes; and that after all, there were due and unpaid at the death of Mrs. Hunt more than four thousand dollars, contracted on the two last mentioned accounts. From all which the conclusion is deduced that Mrs. Hunt’s administrator was not entitled to any account whatever. And it is-insisted that Mrs. Hunt, in her lifetime, first, was satisfied with the executor’s arrangement; second, never claimed any account of the estate; third, that her will had been kept out of the record because it contained no claim for arrears nor assumed to dispose thereof. It is further insisted that it would be inequitable to charge the tenant in remainder with an account not only for the debts of the testator but also for the debts of the estate growing out of its management by the executor, according, to the wishes of the tenant for life, and thus embarrass him with an accountability which might injure him but could scarcely benefit him in any event.
   Reese, J.

delivered the opinion of the court.

It appears from the bill, answers, exhibits and proofs that Christopher Hunt, by his last will and testament, devised all the property which he possessed or had received in right of his wife to her absolutely, and all the balance not necessary for the payment of debts and legacies, whether real or personal, he gave to her for life, with remainder to the defendant, John H. Winbush. At the time of testator’s death his debts amounted to some eight or nine thousand dollars, to have paid which promptly would have required the sale of a considerable number of slaves. This the executor proposed to have done, but the owner of the life estate urging that it was the wish of her husband, the testator, made known to her verbally, that none of his estate, real or personal, should be sold, the executor forebore to sell any of the property for the payment of debts, but arranged with the creditors for the postponement of their claims, and by the agreement and consent of the tenant for life, kept up and carried on the farm - and the entire establishment for the purpose of applying the nett annual profits, after deducting expenses and the maintenance of the family, to the satisfaction and extinguishment of the debts. This mode of conducting tfie matter continued for some years, and until after the death of the tenant for life; and considerable.sums arising from the annual profits of the establishment were appropriated to the payment of the debts of the testator. This bill is filed by the personal representative of the tenant for life against the executor and the remainder-man for an account and for contribution. The debts in question were a charge upon the property devised, and it would have been competent for the executor, and his duty, to have sold the slaves and personal property bequeathed, and to have paid the debts, unless the owner for life or of the remainder, or both, had paid the debts or made some arrangement, such as was in fact adopted. If such- sale had taken place the loss of each owner would .have been in proportion to his interest in the property. As no sale took place, but a portion of the debts charged upon the property was paid by the annual profits accruing during the continuance of the life estate, such payment so made was in effect and as to the equitable claim for contribution between the tenant for fife and the remainder-man, as if paid in money by the former, and out of her separate means or absolute property. If the property had been sold out and out for the payment of debts, their loss, as has been said, would of course have been in proportion to their interest in the estate, and if a surplus had been created by such sale the tenant for fife would have been entitled to the interest upon such surplus, and the remainder-man to the principal. Upon well settled equitable principles it was the duty of the tenant for fife to have kept down the interest of the debts charged upon the property. In the account, therefore, which must be taken between the personal representative of the tenant for fife and the remainder-man, it is not material to enquire into the products and expenses of the farm, into the particular times at which payments were made, or into the value of the hire of the slaves which absolutely belonged to the tenant for life. It will be sufficient to ascertain the amount of payments made by the tenant for life of the debts of the testator over ■ and above or exclusively of accruing interest, as the executor, in the arrangement made with the tenant for life, was in effect nothing more than her agent or bailiff in conduct-, ing the farm, selling the crops, &c.

As to the crop of 1836, the representative of the tenant for life is. entitled to its value as it stood at the time of the death of the tenant for life; in other words, the expenses of gathering in the corn and picking out the cotton, &c. and bringing both or all to market, must be deducted from the proceeds, crediting the representative of the tenant for life with the value of the services of the slaves, the absolute property of the tenant for life, so far as employed therein.

As to the stock of cattle, horses, mules, hogs, sheep, &c, and as to wagons, carts and implements of husbandry, and also as to provisions, &c. and indeed as to all the personal' property-, except the slaves, whether consumable in the use,, or liable to be impaired and worn out, or of any other description, limited in remainder, an inquiry must be had as to the description, condition and value thereof at the time of the death of the testator and at the time of the death of the tenant for life; and if the same, by loss of number or deterioration in use, was of less value at the latter than at the former period; the representative of the tenant for life must be charged with the amount of the deficiency; but if by purchase or increase the value was enhanced, the excess or increase in value to be charged to the remainder-man. Robertson vs. Colber, 1 Hill’s Rep. 375.

As to such fixtures as a cotton gin or cotton press, am inquiry must be made as to their worth or value when they came into the hands of the remainder-man, unless rebuilt in place of such fixtures existing at the time the tenancy for life commenced; in which case the difference of value will be inquired into as under the last head.

As to the articles of personal property belonging exclusively to the tenant for life, and not part of the general establishment limited in remainder, the representative of the tenant for life will be entitled thereto if existing in specie, or to their value if converted.

The representative of the tenant for life will be entitled to the interest which accrued during the tenancy for life on any sum of money due to the testator in his lifetime, although not collected till since the death of tenant for life.

As the decretal order of the chancellor and the report of the clerk and master in the chancery court proceed upon principles in some degree differing from the above, the former will be reversed and the latter set aside, and the clerk and master of this court will enquire and report as 'herein above directed.  