
    *Harshberger’s Adm’r & als. v. Alger & Wife & als.
    November Term, 1878,
    Richmond.
    
      L In 1851, H and his wife E enter into an agreement by which they agree to a separation, and they unite in a deed by which certain real estate and $9G0 in money is conveyed to S, for the express use, support and maintenance of the wife, and if she should die before the whole of said $900 was paid to her she -might by will or gift dispose of the remainder of it as she should think proper. He covenants that 33 may live separate from him, and that ■he will not claim any property of hers. And 15 renounced all glaim on him for support, &c., and to his property. This deed is executed by the trustee S. In a short time after making this deed IT removes to the West, and never returns. He dies in 1875. 3$ lived until 1871, having been helpless for the last year of her life, and unable to do any but very light work for two or three years previous. During this period she is nursed and attended to by her daughter A, who lives with her and attends to her land as well as her own. 33 dies without disposing of the remainder of the $900, amounting to $500 or $600, which is paid to H’s administrator. In 1877 A sues the administrator of H for compensation for services rendered 33 in her lifetime — Held:
    X. Deeds of Separation — Validity.— Quaere: Whether deeds for voluntary separation of husband and wife are valid?
    2. Same — Same—Vesting of Property — If such deeds are valid, the deed in this case vests the property conveyed in the trustee for the separate use of the wife.
    3. This Case — Husband’s 3Liability for Wife's Debt. — Under the circumstances of this case, tne husband was not liable for any debt contracted by the wife.
    4. Wife’s Separate 3Estate — Power to Charge. — If A can maintain this suit it must be on the ground that the remainder of the $^00 was the .separate estate of 33, the wife, charged by her in her lifetime with the payment of these services.
    *5. Same — Same — Intention. —The liability of a married woman’s separate estate for her engagements depends upon her intention to charge it. Her intention to charge it must be made to appear.
    6. Parent and Child — Compensation for Services. — As between parent and an adult child, whenever compensation is claimed in any case oy either against the other for services rendered, or the like, it must be determined from the particular circumstances of that case whether the claim should be allowed or not. There can be no fixed rule governing all cases alike. In the absence of direct proof of any express contract, the question always is, can it be reasonably inferred' that pecuniary compensation was in the view of the parties at the time the services were rendered; and that depends upon all the circumstances of the case; the relation of the parties being one.
    T. This Case — Decision.—In this case there having been no express contract proved, and so far as appears, no claim or mention of such compensation by either the mother or daughter during the mother’s life, and the services having been such as any child, prompted by filial affection and im-pclled by a sense of duty, might be expected under the circumstances, to render cheerfully to an aged mother, a contract cannot be implied; and A cannot recover.
    S. Statute of Limitations — Running of Statute. —-If A had a valid claim to compensation for her services, it accrued during the lifetime of JÍ, and the statute of limitations then began to run, and this suit not having been brought until 1877, the statute is a bar to it.
    This case was heard at Staunton, but was decided at Richmond.
    In February, 1851, Samuel Harshberger, of the county of Rockingham, sold to five of his children his tract of land in said county, supposed to contain about one hundred and eighty acres, at $40 per acre, and upon long credits, reserving a small lot and house, and some privileges. On the 12lh of April, 1855, Harshberger, his wife Elizabeth, and the said five children, entered into an agreement under seal, in which it was recited that an unpleasant state of things has existed between said Harshberger and his wife Elizabeth, *and a difficulty has arisen* in regard to the sale of said Harshberger’s land to his children; and it was agreed that articles of perpetual separation between said Harshberger and his wife Elizabeth should be executed between them, by which he should not be responsible in any manner for the debts or support of the said wife. Tt then provides that the five children should pay $900 more for the land than they had agreed to give; which was to be paid in eighteen equal annual payment of $50 each, for which the five said children were to execute their notes to the said Elizabeth for her use and benefit; and she was to have twenty acres of the land during her lifetime, including the ground on which the loom-house stands, &c. In pursuance of this agreement Harsh-berger and his wife, by deed dated the 10th of April, 1855, conveyed to the said five younger children the said land upon . the considerations and with the reservations aforesaid. And by deed of the same dale, to which Samttel Harshberger, Jacob Shanks, and Elizabeth Harhsberger, wife of Samuel, were parties, after referring to the difficulties between said Harshberger and his wife, and the facts as to the twenty acres reserved and the $900 to be paid in annual instalments of $50 to Mrs. Harshberger, the deed provides that the bonds for this $900 shall be placed in the hands of said Shanks for the express use, support and maintenance of the said Elizabeth, wife of said Samuel; and if she should die before the whole of said $900 are due and paid, then she may by will or gift dispose of the remainder as she thinks proper. And Harshberger covenanted with the said Shanks that he would permit his said wife Elizabeth to live separate and apart from him, and that he would claim no property put into her possession under this deed, or that she might acquire by purchase or bequest. And in consideration *of these provisions, said Elizabeth renounced all right to support and maintenance by said Harshberger, and to dower or alimony in his estate.
    After this deed was made, and before the late war, Samuel Harshberger removed to the western country, and never returned. After the war all of his daughters, except Elizabeth the eldest, also went west. Said Elizabeth and one grand-daughter, a young girl about seventeen years of age in 1871, retrained, and they and Mrs. Harshberger lived together, whether on the land sold to the children or on the twenty acres in which Mrs. Harshberger had a life interest, is not clearly stated. Both parts of the land were cultivated or rented together, the daughter Elizabeth attending to it, as she did to all the housekeeping, cooking, washing, &c.; generally doing the work herself with the help of the grand-daughter. For upwards of a year before her death, which occurred in 1871, Mrs. Harshberger was helpless, requiring constant attention and nursing; and for two or three years previous she could do only light work, such as sewing or knitting.
    At the death of Mrs. Harshberger, there was left of the $900 settled on her by the deed of separation, some six or seven hundred dollars; and as she died without having made a will, and her husband survived her, it reverted to him. He died in 1875, and his estate in Virginia was committed to D. H. Ralston, sheriff of Rockingham, to whom the administrator of Mrs. Harshberger, J. P. Ralston, paid over the said fund.
    The daughter, Elizabeth, having married Abraham Alger after the death of her mother, in April, 1877, they instituted their suit in equity in the circuit court of Rocking-ham county against D. H. Ralston, as administrator of Samuel Harshberger, and the other distributees of said Harshberger, and Jacob *Shanks, and in their bill bill they claimed that Mrs. Harsh-berger was indebted to the plaintiff Elizabeth for services rendered to her during her life, equal to $500; and that the balance of the said $900 was liable for her debts. And they prayed for the payment of this claim, and that the estate of Samuel Harshberger might be distributed among his distributees.
    It was not alleged in the bill, nor was there any proof, that there was any agreement between Mrs Harshberger and her daughter Elizabeth that the daughter should be paid for her services; nor does it appear that any such claim was set up by the daug'hter until after the death of her father, Samuel Harshberger. What these services were arc sufficiently stated in the opinion of Judge Burks.
    At the August term, 1877, the bill having been taken for confessed as to all the defendants, the court made a decree referring it to one of the commissioners of the court to ascertain and report what estate there was in Virginia belonging to the estate of Samuel Harshberger, deceased, within the jurisdiction of (he court and liable to distribution among his heirs; also, how much of the $900 in the bill and proceedings mentioned, remains in the hands of Jacob Shanks, the trustee, and what debts of said Harshberger and his wife Elizabeth remain unpaid, and their priorities.
    Commissioner Bryan took several depositions as to the services rendered by the plaintiff, Mrs. Alger, to Mrs. Harshberger, and in November, 1877, made a report, by ■which he made her an allowance of $4 a week for the last year of Mrs. Harshberger’s life; for the year previous, $1 per week, and for three years before this last, of 75 cents per week, making in the whole, including interest to the date of the report, $550.41. And he reported that there was of the estate *of Samuel Harshberger, $1,624.41; and after paying Mrs. Alger’s claim of $550, there would be $1,074.
    1-Jarshberger’s administrator excepted to the report of the commissioner—
    First. Because there is no proof in the cause to sustain the claim allowed the complainants, Alger and wife, for services rendered Mrs. Harshberger.
    Second. Op the ground that there is no evidence to sustain said' alleged claim against Samuel Harshberger, deceased, he being separated from his wife at the time said alleged services were rendered.
    Third. The statute of limitations is a conclusive bar to said claim of the plaintiffs. Elizabeth Harshberger died in the spring of 1871, and this suit was brought on the 19th of March, 1877, more than five years after her death.
    > In January, 1858, Harshberger’s administrator filed his answer in the cause. He questions the allegations of the bill as to the services of Mrs. Alger to her mother, Mrs. Harshberger. He denies that complainants have a right to recover of the estate -of Samuel Harshberger, whether the daughter lived with the mother and worked for her, or the mother lived with the daughter. He insists that the law will not imply a contract for pay for such services rendered, and there was no allegation in the bill, or proof of any express contract. He denies that Samuel Harshberger, who lived separate from his wife under articles of separation, could in any event be liable for his wife’s debts; and he also pleads the statute of limitations.
    The cause came on to be heard on the 12th of March, 1879, when the court overruled the exceptions to the report, and decreed that Ralston, administrator of Samuel Harshberger, should out of the assets in his hands pay the plaintiffs $504.51, and to the different ^distributees the sums reported by the commissioner. And thereupon the said administrator applied to a judge of this court for an appeal; which was awarded.
    William B. Compton, for the appellant.
    G. W. Berlin, for the appellees.
    
      
      Husband and Wife — Deed of Separation. —See 1 Min. Inst. (4th 33d.) 312 et seg. This question is fully discussed in Switzer v. Switzer, 26 Gratt. 574. See also 22 Am. & 33ng. 33nc. Law 66.
    
    
      
      Same — Conveyance by Husband to Wife. —See 1 Min. Inst. (4th Ed.) 347; Garland v. Pamplin, 32 Gratt. 305 and note.
      
    
    
      
      Wife's Separate 3G3state — Power to Encumber. — See 1 Min. Inst. (4th Ed.) 3 55; Frank v. Eilienfield, 33 Gratt. 397, and note; Garland v. Pamplin, 32 Gratt. 305 and note; Ropp v. Minor, 33 Gratt. 97 and note; Miller v. Miller, 92 Va. 515.
    
    
      
       parent and Child — Compensation for Services. — See King’s ex’ors v. Malone, 31 Gratt. 158, approving principal case. See also 1 Min. Inst. (4th 33d.) 437.
      Distinguished in Hauser v. King, 76 Va. 731, where a brother, having been appointed committee for his insane sister, supported her and was allowed to recover therefor. In Plate v. Durst, 42 W. Va. 36, a minor residing with her brother-in-law was led to believe by words (claimed by defendant to have been spoken in jest) of such brother-in-law that she was to receive compensation for her future services: Held she was entitled to recover. Other cases approving the view taken by the principal case are: Thompson v. Holstead, 44 W. Va. 398; Jackson v. Jackson, 96 Val 173; Stansbury v. Stansbury, 20 W. Va. 31; Hurst v. Hite, 20 W. Va. 205; Riley v. Riley, 38 W. Va. 290. See generally 17 Am. & Eng. Enc. Law 336.
    
   BURKS. J.

When the services were rendered, as claimed, for which payment is demanded in this suit by the appellees, Alger and wife, Mrs. Harshberger, the alleged beneficiary, was a married woman living apart from her husband under a deed of separation executed many years before. On no conceivable ground can it be successfully maintained that the husband was ever personally liable for these alleged services. It is not pretended that they were rendered under any express contract made with him, or that he ever became bound by any subsequent ratification or acquiescence. He resided in a distant state, to which he removed soon after the agreed separation from his wife. He never returned to this state, and after his removal there was never any correspondence or communication, so far as appears, between him and his wife or his daughter, Mrs. Alger, both of whom continued to reside in Virginia. It is equally plain that there was no implied contract on his part to pay for the alleged services; and this is so, whether the deed of separation be treated as partially valid or wholly void. If the deed be considered as valid and binding on him, to the extent of the covenants and assignments made by him, he was not bound even for necessaries furnished to the wife after the ■separation; for provision was made for her support and maintenance, with which provision she,and her trustee were satisfied, and it was ^sufficient, as the large residuum of the trust fund undisposed of at her death clearly shows. Moreover, it was expressly stipulated in the deed that he was not to. be bound for the payment of any debts subsequently contracted by the wife. This covenant, to which the trustee was a party, was pursuant to a preliminary written agreement containing a stipulation of like character to which Mrs. Alger, then unmarried and sui juris, was also a party, she having an interest in the subject matter. If the husband was bound by his covenants, she was also bound by the agreement referred to, and. in such case, there .can be no implied obligation on his part to discharge any liability on account of dealings or transactions between her mother and herself.

If, on the other hand, the deed be regarded invalid as to all the parties, in all respects and for every purpose, still it is apparent that the services for which claim is made were not rendered in reliance upon the personal credit of the husband. The presumption that the credit of the husband was the basis of the services is rebutted by all the circumstances; such as the absence and permanent non-residence of the husband, the agreed and actual separation from the wife, the possession by her, under a contract fully executed by him, of means provided by him for her continuous support and maintenance and sufficient for that purpose, and the perfect knowledge by Mrs. Alger of all these facts.

Of course there could be no contract, express or implied, by which the wife could be personally bound; for, although by consent living apart from her husband, she remained subject to the disabilities of coverture. She could contract no debt for which she could be personally liable, either at law or in equity. *There could be no personal judgment or personal decree against her on such debt.

From what has been said, it is obvious that if the decree of the circuit court in behalf of the appellees, Alger and wife, for the amount allowed for services, can be sustained at all. it must be on the ground that the fund subjected to the decree was the separate estate of Mrs. Harshberger, charged by her in her lifetime with the payment for these services.

This fund is the remnant of what was settled by Samuel Harshberger to the use of his wife under the deed of separation, and it may be conceded, for the purposes of this suit, that the deed, to the extent of the provision therein made by the husband for the wife, was a valid instrument.

I do not deem it necessary in this case to enter at large upon the discussion of the general question of the validity of deeds of voluntary separation between husband and wife. The books abound in discussion of this question by judges and law-writers, and the weight of authority would seem to be, that while courts will give no countenance or aid to either party in carrying into execution an independent executory agreement to live apart, because such an agreement is considered as against public policy, yet they will generally uphold and enforce against the husband such conveyances and covenants as he may have made for the maintenance of his wife, provided the separation has actually taken place, or is contemplated as immediate, and the provision for the wife is made through the intervention of a trustee, and the parties have not subsequently come together again. Notes to Stapilton v. Stapilton, 2 Lead. Cas. Eq. C4th Amer. Ed.) Part 2, top pages 1675, 1696 to 1702, inclusive; 2 Bright’s Husband and Wife, 307; 2 Story's Eq. Juris. § 1418; 1 Bishop on Marriage and Divorce, (5th Ed.) *ch. 37, § 630 to § 656 inclusive, and the numerous authorities cited by these authors; Walker, v. Walker, 9 Wall. U. S. R. 714, and cases there cited.

The case of Switzer v. Switzer, 26 Gratt. 574, is the only case, as far as I know, ever before this court, in which the validity of a deed of separation was drawn in question. In that case, the court set aside the deed, on a bill filed by the wife, but expressly waived the decision of the general question as to whether any deed of separation was valid to any extent or for any purpose. _

_ The question need not be decided now. I only state what seems to be the weight of authority and as a concessum to the appel-lees, let it be that the deed is valid to the extent before indicated. This conceded, it is quite plain that the estate acquired by the wife under the deed is a separate estate. It is not so declared in express terms. That may not be necessary; no particular phraseology is necessary to create such an estate. As in all instruments to be construed, the controlling test is the intent of the parties. Prout v. Roby, 15 Wall. U. S. R. 471, 474; Bank of Greensboro v. Chambers & als., 3 Va. Law Journal, 469. The conveyance and assignment were by the husband for the wife’s “express use, support and maintenance,” and the deed contains a covenant of indemnity to the husband against the wife’s debts. Such a deed necessarily excludes the husband’s marital rights, and of itself imports a separate estate of the wife in the property set apart to her use; otherwise it would be ineffectual for the purposes manifestly contemplated. Leake, trustee, v. Benson & als., 29 Gratt. 153, 156; Steel & als. v. Steel & als., 1 Ired. Eq. R. 452, 455; 1 Bishop on Law of Married Women, § 838, citing Gaines’ adm’x v. Poor, 3 Mete. Ky. R. 503. In that case the words were “in trust for Mrs. Gaines.” Bullitt, J., is reported *as saying: “In the case before us, though the contract does not employ any of the usual technical words to create a separate use, yet as it shows that a separation was intended between Gaines and his wife, and the property was conveyed to Poor, in trust for her, in view of such separation, it is clear a separate use was intended.”

It may be further conceded that Mrs. Harshberger had the power to charge this separate estate with the payment of any debt she might create, restrained perhaps from anticipating' any instalments of the money secured to her use before they became due, and that when the services were rendered for which a claim is asserted, the amount subject to be charged exceeded the estimated value of the services.

And it may be further conceded that if Mrs. Harshberger contracted any debt or liability to her daughter, Mrs. Alger, for services rendered, such debt or liability was a charge on the separate estate.

The liability of a married woman’s separate estate for her engagements depends upon her intention to charge it. Her intention to charge the estate must be made to appear. It may sometimes he implied. For example, if she execute a bond or note, whether as principal or surety, she must be presumed to have intended a charge on her estate, since in no other way can the instrument be made effectual. Burnett & wife v. Hawpe’s ex’or, 25 Gratt. 481; Darnall & wife v. Smith’s adm’r & als., 26 Gratt. 878.

If the husband and wife are living together, and the wife, having a separate- estate, purchase goods for herself or her family, or contract for services, it is not necessarily implied that she intends a charge upon her estate. It is rather to be inferred, in the absence of proof, direct or circumstantial, to the contrary, that in making the purchase or contracting for the services, ^credit was given to the husband, and that she was acting as his agent. If, however, she is living apart from her husband, with a separate estate, and especially if, under articles of separation, it has been stipulated that the husband is not to be bound for her debts, it must be inferred, I admit, that she intended to charge her own estate.

In Johnson v. Cummins, t C. E. Green’s R. 97, the chancellor said: “The general principle is that a married woman is enabled in equity to contract debts in regard to the separate estate, and the estate will be subject in equity to the payment of such debts. In’ order to bind the separate estate it must appear that the engagement was made in reference to and upon the faith and credit of the estate. But where a married woman, living apart from her husband and having a separate estate, contracts debts, the court .will impute to her the intention of dealing with her separate estate, unless the contrary is shown.” Notes to Hulme v. Tenant, 1 Lead. Cas. Eq. (4th Amer. Ed.) Pt. 2, top p. 679, 760.

With the concessions already made, that the deed of separation, to the extent of the estate settled to the use of the wife was valid, that the estate thus created was- the separate estate of the wife, that she had the power to charge it with her debts to the extent indicated, and that if she contracted any debt or ’ liability to her daughter for services, she must be presumed to have intended such debt or liability as a charge on her estate, the case is narrowed-down to the single question, Did she ever contract any such debt or liability? I am free to say that I d'o not think she ever did.

Soon after the separation of Harshberger and his wife, as before stated, he left the state and never returned. All of the daughters,'except Mrs. Alger, left soon after the termination of the war. Mrs. Alger *remained. and also a grand-daughter of Mrs. Harshberger. They all lived together, whether in the house of the old lady, or in Mrs. Alger’s house, does not distinctly appear. For about two months before her death, Mrs. Harshberger was confined to her bed by sickness and was helpless, and for some ten or eleven months immediately preceding, she could not rise from her bed without assistance; but when assisted she could get up and walk about the house. Before that time, it seems, she went about and did light household work. Her daughter and grand-daughter, the latter being some seventeen or eighteen years old when her grand-mother died, waited upon and nursed her while sick; and during the period of her sickness and before that time, 'the two attended mpstly to the household work, the- daughter taking the chief management and also directing the farming and out-door business. Some of the witnesses speak of her chopping firewood, but Mrs. Blosser, who had the best opportunity_ of knowing, says “that they had people hired to chop wood.” Supplies were derived in common from the land of Mrs. Harshberger and the land owned by her daughters, these lands being, it would seem, sometimes kept and cultivated, and at other times rented out.

The commissioner allowed Mrs. Alger for her services $4 per week for the last year of her mother’s life, $1 per week for the year next previous, and 75 cents per week for the three preceding years, with interest on the several annual sums from the end of each year, making in the aggregate $550.41 as of the 19th November, 1877.

Although these charges run through the last five years of Mrs. Harshberger’s life, she was never heard once to allude to any agreement or understanding of any sort looking to compensation being made for these ^'services. Had it been contemplated that the services should be paid for, some arrangement, no doubt, to that end would have been entered into, and would most probably have been spoken of. It might be reasonably expected that there would have been some writing between the parties showing the contract, or at least some verbal agreement made or acknowledged in the presence of witnesses; or, as the old lady had the power under the deed to dispose of the residuum of her property by will, she might have bequeathed it or a part of it to her daughter. Nor did Mrs. Alger ever assert any claim for these services during the lifetime of her mother, or, so far as appears, ever mentioned the subject to her mother; nor did she ever assert any such claim against her mother’s personal representative, who qualified some three years after her mother’s death, and proceeded to collect what was due to the estate; nor did she assert a claim against any one until after the death of her father in the year 1875, and the qualification of an administrator of his estate in the year 1876, after which she and her husband filed their bill in this case against that administrator, seeking a distribution of the estate and payment for the services aforesaid.

■ Thus, it seems to me, there is not only no express contract for the services proved, but no contract can be justly implied. The evidence rebuts the presumption of any contract. The services were .just such as any child, prompted by filial affection and impelled by a sense of duty, might be expected, under the circumstances, to render cheerfully and gratuitously to an aged mother; and I am of opinion that the services in this case proceeded from these praiseworthy motives, and from no expectation, at,the time they were rendered, either on the part of the mother or daughter, *that they were to be paid for. As said by a Pennsylvania judge in a like case, “they were the results of the relation, not the fruits of a contract.” Agnew, J., in Leidig v. Coover’s ex’ors, 47 Penn. St. R. 534.

As between parent and child (adult), the common law imposes no obligation upon either to support the other, not even to furnish necessaries in the strictest sense of that term; but there is a high moral duty on each to render the other all needful assistance. In England and in some of the American states there are statutes enforcing that duty. 2 Kent’s Com. 207, 208 (side pages). We have no such statute in Virginia.

Whenever, therefore, compensation is claimed in any case by either against the other for services rendered, or the like, it must be determined from the particular circumstances of that case whether the claim should be allowed or not. There can be no fixed rule governing all cases alike. In the absence of direct proof of any express contract, the question always is, Can it be reasonably inferred that pecuniary compensation was in the view of the parties at the time the services were rendered? and the solution of that question depends on a consideration of all the circumstances of the case, the relation of the parties being one of these circumstances.

In Williams v. Stonestreet, 3 Rand. 559, a charge by a son-in-law for nursing his father-in-law in his last illness was rejected, Judge Cabell, delivering the opinion of the court, saying, “that there was no contract, express or implied; and considering the relation between the parties, the services were such that no compensation ought to have been expected.” See 3 Parsons on Contracts (5th Ed.) 46; Schowler on Domestic Relations, 372; Bump, on Fraudulent Conveyances, 257; and the ^numerous authorities cited by these authors on the doctrine of presumptionin cases like the present.

If there had been a contract for compensation in this case, it is difficult to perceive how the bar of the act of limitations, relied on by the administrator, could be avoided. Til demands strictly legal, of which equity has jurisdiction concurrent with the law courts, equity follows the law literally in applying the statute of limitations, acting according to what would seem to be the better opinion, in obedience to the requirements of the statute; while in cases of claims of an equitable nature, it acts by analogy; that is, it applies the same bar to such claims that would be applied at law, under the statute, to legal claims of analogous character. To some cases this rule has no application. It is never applied to. controversies between trustee and cestui que trust in cases of subsisting technical trusts cognizable only in courts of equity; and in cases of concealed fraud or mistake, the act is not allowed to run except from the discovery of the fraud or mistake. Rowe v. Bently & als.. 29 Gratt. 756, 739 et seq., and cases there cited.

If Mrs. Alger had any valid claim, it accrued in the lifetime of her mother, was a claim against her mother’s separate estate, and was therefore an equitable demand. It could have been enforced only in a court of equity. A legal claim of like character must have been asserted within five years from the time right of action accrued thereon. The running of the statute, commencing in the lifetime of Mrs. Harshberger, would not have been suspended by her death, or because of the lapse of time before there was an administrator of her estate. 1 Rob. Frac. (New Ed.) 591, and cases there cited. And so, on principle, of the equitable demand against her estate.

Upon the death of' Mrs. Harshberger, her estate was ’¡’devolved by operation of law on her administrator, whose duty it was to administer it, and after the payment of funeral expenses, charges of administration, and all debts against the estate, to pay over the surplus to her surviving husband who was her sole distributee under the law (Code of 1873, ch. 119, § 10), or after his death, to his administrator. The administrator of Mrs. Harshberger, therefore, should have been made a party to this suit; but inasmuch as it appears that pending the suit he had his accounts as administrator stated and settled by a commissioner of the court, and he then paid over the balance in his hands to the administrator of the husband. which balance was thus brought under the control of the court in the cause, and this proceeding seems to have been acquiesced in by the parties, his presence as a party was, perhaps, not indispensable.

In any view I can take of this case, l am of opinion that the decree of the circuit court is erroneous and should be reversed; that the exceptions of the appellants to the report of the commissioner allowing the claim of the appellees, Alger and wife, for the services of Mrs. Alger should be sustained, and that the cause should be remanded to the circuit court for further proceedings to be had therein, in order to a final decree in conformity with the views herein expressed.

The other judges concurred in the opinion of

BURKS, J.

The decree was as follows:

This cause, which is pending in this court at its place of session at Staunton, having been fully argued but not determined at said place of session, this day came here again the parties by their counsel, and the *court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said circuit court erred in its said decree in overruling the exceptions filed to the report of commissioner Bryan by the defendants’ counsel and in confirming said report, and consequently further erred in its said decree in ordering payments to be made by the administrator of Samuel Harshberger based on said report as confirmed. The said circuit court should have sustained the said exceptions to said report, and have wholly disallowed and rejected the claim for services preferred by the complainants, Abraham Alger and Elizabeth, his wife, and have caused said report to be reformed so as to make it conform to the action of the court disallowing and rejecting said claim, and as reformed should have confirmed it, and proceeded to decree thereon as thus reformed and confirmed according to the rights of the parties respectively. It is therefore decreed and ordered, that the said decree be reversed and annulled, and that the appellees, Abraham Alger and Elizabeth, his wife, pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here; and the cause is remanded to the said circuit court for further proceedings to be had therein to a final decree in conformity with the opinion and principles herein expressed and declared: which is ordered to be certified to the said circuit court of Rockingham county.

Decree reversed. 
      
       Statni e of limitations — Rnnninjt of Statute. — -See Handy v. Smith, 30 W. Ya. 197, citing principal case and Jones v. Lemon, 26 W. Va. 629; Wilsin v. Harper, 25 W. Ya. 179.
     