
    *Cockerille v. Dale’s Adm’r & als.
    March Term, 1880,
    Richmond.
    Wills-“Oonstruetion. — Preferences.-—R by his will, after giving to a trustee certain stocks, the interest of which was to be applied to the support of his sister J, and at her death to two of her daughters by name; and a like trust for the support of R a daughter of J, gave to D a son of J, land and stocks; “subject, however, to the full and comfortable maintenance and support of his mother and sister R during their natural lives.” The mother died and the stocks left for the support of R became worthless. Hri/d: The land left to D is liable for the support of R in preference to any debt oí D.
    This was a suit in equity in the circuit court of Fairfax county, brought in 1858 by Richard H. Cockerille to subject a certain tract of land called Springdale, to the payment of two judgments amounting to $588.68, which the plaintiff had paid as the surety of John R. Dale.
    John R. Dale derived his title to said land under the will of John Richards, deceased, which was admitted to record in August, 1843, and the only question before this court was as to the incumbrances upon the land created by the will of said Richards in favor of the mother and sister of said Dale. The provisions of the will bearing on this question are the second, third, and sixth, which are as follows:
    2. I bequeath in trust to my said executors for the use and benefit of my sister Jane Dale, during her natural life, seventeen hundred dollars of the scrip of the corporation stock
    of Alexandria; the dividend and ^interest thereon as it shall be declared from time to time, she is to receive regularly during her life aforesaid; and the stocks or principal at her decease to be equally divided among her daughters, Elizabeth Johnston, Jane R. Triplett, and her son John R. Dale, to each one-third, or their descendants, should they or either of them die before their mother. The descendants of said deceased child receiving the same share or portion which the parent or parents, if living at the time of the death of the said Jane Dale, would be entitled to, and no more.
    3. T bequeath in trust to my said executors for the use of my niece Rosanna Dale, twelve shares of the capital stock of the bank of Potomac, Alexandria, and also $1,000 of the stock scrip of the corporation of Alexandria of six per cent. — the dividends and interest thereon as it shall fall due and become payable to be paid over to her during her natural life by my said executors, and at her death the capital stock aforesaid to be divided among her sisters. Elizabeth Johnston, Janc R. Triplett, and her brother John R. Dale, in three equal parts, or ip case of their death to their descendants, in the manner stated in my second bequest mutatis mutandis.
    6. In like manner I devise and bequeath to mysaidexecutorsintrustfor my nephew John Dale, and his children my farm in Fairfax county, Virginia, called “Springdale,” and on which he now resides, and also ten shares of the capital stock of the Bank of Potomac, Alexandria, and fifty shares of the capital stock of the Fire Insurance company of Alexandria, and also two and a fourth shares of the Tittle river turnpike road stock; subject, however, to the full and comfortable maintenance and support of his mother and sister Rosanna, during their natural lives, to be judged of by my said executors hereinafter named, in connection *with the annuities already stated; and in the event of his leaving no lawful issue, then 1 devise and bequeath it to the children of his sisters Elizabeth Johnston and Jane R. Trip-lett, to each of their offspring a moiety thereof.
    John R. Dale died in 1862. leaving several children, and having in his lifetime made a deed by which he conveyed the Springdale farm to a trustee to secure certain debts therein mentioned; and Jane Dale his mother died previous to 1867.
    There were several reports in the cause by a commissioner, and one made in 1867 in which he reported that the fire insurance company had gone into liquidation and the amount paid on John R. Dale’s stock was $575.00 and the income from the corporation stock he states at $30 a year, making the income from these sources $64.50 a year, and he reports the other,stocks as worthless. In May, 1871, he reports that $12 a month would be a proper allowance for the board of Rosanna Dale. And he reports that Mrs. Triplett had supported her for ten years; and allowing at the rate of $12 a month for board, and $25 a year for clothing, he makes due her for these ten years $1,690, of which she had received $972; leaving still due to Mrs. Triplett $718.
    In June, 1871, there was a decree for the sale of the land; on the terms of one-fifth cash and the residue in three equal instal-ments. And the sale having been reported by the commissioner in November, 1871, another decree was macfe directing the commissioner to pay to Mrs. Triplett the amount of the purchase money in his hands as a credit on her account, and commissioners were appointed to sell the stock. And the plaintiff R. H. Cockerille having filed a petition in the cause, the subject of the petition was referred to the commissioner for inquiry and report; and the ^question as to the amount of allowance for Rosanna' Dale was reserved. At the June term, 1875, the cause came on again to be heard when the court held that though the interest of John R. Dale in the land in the proceedings mentioned was converted into a fee absolute, and was subject to his debts, that he took it also subject to the charge for the support of his mother and sister Rosanna Dale; and that this charge was good against him, and superior therefore, to the rights of any one claiming by, through or under him; and that his creditors could occupy no better position than he might himself claim, and must take his property subject to the charge created upon it under the will of John Richards. It was therefore decreed that the fund derived from the sale of said land be held subject primarily to the support of the said Rosanna Dale to the full extent of the amount necessary to her support. And $13 per month was allowed for that object. And it appearing that said Rosanna Dale was non compos mentis and that there was at least $350 then due for her support, a trustee was appointed for her, and the commissioner who sold the land was directed to pay over that sum to the trustee. And a commissioner was directed to state the amount due then for the support of said Rosanna Dale upon the basis of $13 per month, and to ascertain the amount of the funds in this cause, &c. From this decree Cockerille applied to this court for an appeal; which was allowed.
    Francis L. Smith, Jr., for the appellant.
    S. F. Beach, for the appellees.
   ANDERSON, J.,

delivered the opinion of the court.

*The court is of opinion that there is no error in the decree of the circuit court. The devise and bequest of John Richards, by the 6th clause of his will to John Dale charges both the devise and the legacy with the full and comfortable maintenance and support of his mother and sister Rosanna during their natural lives, in connection with the annuities bequeathed to them by previous clauses of his will. And although said devise and bequest are subject to the debts of John Dale, they are only liable therefor subject to the charge aforesaid in favor of his sister Rosanna, his mother being dead. The said clause in favor of his sister Rosanna was a charge on the land and personal bequest in the hands of John Dale. The judgment creditor can occupy no better position than his debtor.

The court is further of opinion that it does not appear from the will that the testator intended to make the legacy liable to the charge prior to the real estate, both species of property are chargeable pro rata with the maintenance and support of Rosanna during her life. Elliott v. Carter, 9 Gratt. 541. But it appears that only $575,00 of the stocks of which the legacy consists survive, which is insufficient to satisfy the amount charged on the devise and bequest which is in arrear, and that the net proceeds of the sale of the land will not yield a sum sufficient to pay the annual charge for the maintenance and support of Rosanna Dale during her life. We are of opinion therefore that there is no error in the decree directing the fund.to be paid to the executor to be administered in accordance with the provisions of the will.

But the fund may not be exhausted in the support and maintenance of Rosanna during her life. What remains, if any, is chargeable with the payment of the debts of John Dale. The decree is interlocutory, and the case has to go back; and the circuit court will *make such order as shall be necessary and proper to secure the application of such sum as may remain after the death of Rosanna Dale to the payment of the appellant’s debt. We are of opinion therefore to affirm the decree of the circuit court.

Decree affirmed.  