
    *Thorntons v. Fitzhugh.
    January, 1833.
    (Absent CAinsuu, J.)
    Decrees — Final—Right to Appeal after Three Years.— Testator bequeaths, that his executor shall pay his daughter ,825. per annum so long- as she shall remain single; and devises and bequeaths to his son, all his estate, real and personal, which shall remain after payment ot debts and legacies; the son is the executor; he takes under the will large real and personal estate, either of which ' is amply sufficient to satisfy all legacies; he sells the real, wastes the personal, and dies insolvent: upon a bill by the daughter against the purchaser of the real estate, and two sons of a deceased surety of the executor in his executorial bond, holding estate of the surety, the chancellor decrees, that the sons should each pay one half of the annuities in arrear, and the costs of suit, reserving liberty to the plaintiff, if the decree should prove unavailing against either, to resort to the court for a further decree against the other, and ordering the cause to he retained in court for the purpose of taking further accounts as to the annuities to accrue in future: Hi'ii.o, notwithstanding the reservation, this is a final decree, from which no appeal can he taken after the lapse of three years from its date.
    Legacies — Personalty Primarily Liable to Payment, — It seems, though the legacy was charged both on the rea.l and personal estate, in the hands of the devisee and legatee of the residue, yet the personalty was primarily applicable to the legacy, and the decree was right in subjecting the surety of the executor, before the purchaser of the real estate.
    Annuity — Arrears—Interest.—it seems, that on the bequest oi an annuity by will in 1791, while the legal rate of Interest was only five per cent, though the annuity fall in arrear after interest was raised to six per cent., yet only five per cent, ought to be allowed on snch arrears.
    William Ritzhugh of Marmion, who died in 1791, by his last will and testament devised and bequeathed, inter alia, as follows —“I leave my son Philip Ritzhugh all my estate, real and personal, which shall remain after payment of my legal debts, the support of my wife, and the legacies herein bequeathed” — and, in the sequel, he bequeathed, that his executors should pay his daughters Elizabeth and Anna Ritzhugh, the sum of £25. per annum, each, while they should remain single. The testator’s son Philip was the executor; and Presley Thornton and John Thornton were his sureties in his executorial bond. He received under his father’s will a large real and personal estate, either of which was much more than sufficient for the payment of all *the legacies, and among the rest the annuities of £25. to his two sisters: but he sold all the real, and Wasted all the personal estate, and died in 1807, utterly insolvent, so that he never had any personal representative. At his death, the annuity to Anna, who still remained single, had been several years in arrear and unpaid. And, in 1810, she exhibited her bill in the superiour court of chancery of Fred-ericksburg, against the purchasers of the real estate; in which, after setting forth her rights, and alleging- that her brother Philip died insolvent, that his sureties in his executorial bond, Presley and John Thornton, were also both dead insolvent, and that there was no personal representative either of the executor or of his sureties, she claimed to charge the annuities then in arrear and due to her, and those to become due afterwards, on the lands devised to Philip, in the hands of the purchasers thereof. The purchasers, in their answer, insisted, that the personal estate of the testator, which came to the hands of Philip Fitzhugh, the executor, as well as devisee and legatee, of the testator, was liable, in the first instance, to the annuities, and ought to have been applied to the satisfaction of them by him as the executor, and that his sureties in his executorial bond ought to be charged with the annuities, by reason of his waste of the personal estate, in exoneration of the real estate in the hands of the purchasers; and they alleged, that the sureties left estate sufficient to satisfy the annuities due to the plaintiff.
    In 1815, she filed a supplemental bill, in which she shewed, that the surety Presley Thornton left no estate whatever, and never had any personal representative; but that the surety John Thornton left estate sufficient to pajr all the annuities due or to become due to her; that this surety died in,testate, and his widow Susan Thornton was his administratrix, and that she Was now dead, and John T. Lomax was her administrator; and that the estate of the surety John Thornton was now in the hands of his two sons, heirs and distributees, Philip Thornton and John Thornton the younger: and she made Lomax administrator of Susan *Thornton the administra-trix of John Thornton the surety, and his two sons, heirs and distributees, parties defendants; and prayed a decree against them for her annuities. The defendants Philip Thornton and John Thornton the younger answered, and admitted that they had received of the estate of their father John Thornton the surety, property amply sufficient to pay the annuities due or to become due to the plaintiff, if the estate of this suretj' was liable-to make good the annuities, in exoneration of the real estate of the testator- in the hands of the purchasers from Philip Fitzhugh the devisee thereof; but they insisted that the real estate in the hands of the purchasers ought to be charged with the annuities; or that, if the court should give the plaintiff relief against them, it ought to give them indemnity out of the real estate in the hands of the purchasers, in like manner as if the real estate were still in the hands of Philip Fitz-hugh, the devisee, or his heirs.
    The cause was long pending in the court of chancery. At length, it was ascertained by the report of a commissioner, that there was due the plaintiff for the arrears of her annuities from 1808 to 1825 (both inclusive) the sum of ,£450. principal, and £229. 10. 0. interest computed on the annuities after the rate of six per cent, per annum, making a total of principal and interest, £679. 10. 0.
    Whereupon, the chancellor, in May 1826, decreed, that the defendant Philip Thornton should pay the plaintiff, one moiety of the sum appearing by the report to be due to her, namely, the sum of ,£339. 15. 0. with interest after the rate of six per cent, per annum on ,£225. part thereof, being principal, from December 1825, till paid; and that the defendant John Thornton the younger should pa3' her the other moiety, ,£339. 15. 0. with like interest on £225. the principal, till paid; and that each of these defendants should pay her one half of her costs of suit. And if the decree should prove unavailing, in whole or in part, either against Philip or John Thornton, liberty was reserved to the plaintiff, to apply to the court for a further decree against ^either of those defendants; and the cause was ordered to be retained in court, for the purpose of taking further accounts as to the annuities that might in future accrue to the plaintiff.
    And on the 8th May 1827, the chancellor, on the motion of the plaintiff, ordered the same defendants, each, to pay her the sum of ,£12. 10. 0. with six per cent, interest from December 1826 (being a moiety of the annuity for the year 1826) and a moiety of the costs of her motion.
    In March 1830, more than three years after the date of the decree of May 1826, but within three years from the date of the order of May 1827, the defendants Philip and John Thornton presented a petition to this court, praying an appeal from those decrees; which was allowed.
    And now the cause was argued by Johnson and Leigh for the appellants, and b3r Harrison and Stanard for the appellee, and for the purchasers of the real estate, upon three points — -1. Whether the court of chancery ought not to have charged the annuities on the real estate of the testator in the hands of the purchasers from Philip Fitzhugh the devisee thereof, instead of subjecting the estate of the surety of Philip Fitzhugh the executor, bound in his execu-torial bond? — -2. Whether interest on the annuities ought to have been given at all? —and 3. Whether, as these annuities were given by will in 1791, when the legal rate of interest was only five per cent., if interest should be allowed at all, it was right to allow more than five per cent.?
    But the cause went off upon an objection taken by the counsel for the appellee, — that the appeal was barred by the statute of limitation of appeals, and ought to be dismissed, as the appeal had been allowed after three years from the decree of May 1826; they insisting, that that was a final decree in the cause, and the order of May 1827 nothing more than an order to carry the preceding final decree into effect. This objection presented two questions — 1. Whether the decree of May 1826 was final or interlocutory? *(for if it was final, the appeal from it was clearly barred) and 2. Whether, if the appeal from the decree of May 1826 was barred, an appeal would lie from the order of May 1827, so as to bring the principle of that order in review before this court?
    
      
      Decrees — When Final, — On this question the principal caséis cited in the following: foot-note to Young v. Skipwith, 2 Wash. 300; foot-note to Harvey v. Branson, 1 Leigh 108; Cocke v. Gilpin. 1 Rob. 38; Nelson v. Jennings, 2 Pat. & H. 381; foot-note to Paup v. Mingo, 4 Leigh 163; Fleming v. Bolling. 8 Gratt. 298. and note: foot-note to Rogers v. Strother, 27 Gratt. 417; Rawlings v. Rawlings, 75 Va. 87; Manion v. Fahy, 11 W. Va. 493; Gillespie v. Bailey, 12 W. Va. 80; Core v. Strickler, 24 W. Va. 695.
      See monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
      Appeals.— See monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
    
      
      Legacies. — See monographic note on “Legacies and Devises” appended to Early v. Early, Gilm. 124.
    
   CARE, J.

This case presents at the outset, a question of jurisdiction. If the decree of May 1826 was interlocutory merely, the case is properly before us, but if that was a final decree, the appeal was improvidently allowed, as more than three years had elapsed from the date of the decree to the application for the appeal. We have had many cases here, where the question turned on the character of the decree. Without going into a particular examination of them, I shall avail myself of some of the conclusions which some of my brethren have drawn from them. In Alexander v. Coleman, 6 Munf. 339, 340, judge Cabell said, — ‘ !I have examined with great attention every case in this court on the subject of interlocutory decrees, from Young v. Skipwith, 2 Wash. 300, to the present time” —■' ‘They were all without exception, decided on the same general principle, that every decree which leaves any thing to be done in the cause by the court, is interlocutory as between the parties remaining in court.” In Royall v. Johnson, 1 Rand. 427, judge Green said, — ‘I have carefully examined all the cases decided in this court, which I can find reported, upon the question of the interlocutory or final character of decrees”— ‘ ‘It is sufficient to say, that in all of them it was apparent, that the court intended to proceed further in the cause, and that it was necessary to do so, in order to put a final end to the controversy, between the parties, as to whom the decree was made.” In Harvey v. Branson, 1 Leigh 108, the court laid it down, that a decree which left no subject to be disposed of, no question to be decided by the court, was, in its nature, final; and judge Brooke very correctly added, “as to the reservations in this decree, those, and all similar reservations, are, in my view, simply provisions for the execution *of the decree, as one final and conclusive, hot reservations of any points for future consideration and decision.” These cases seem to me to take the true and clear distinction: where any thing is reserved bj’ the court for future adjudication, in order to settle the matters in controversy, the decree is interlocutory; but where, upon the hearing, all these matters are settled by the decree, such decree is final, though much may remain to be done, before it can be completely carried into execution, and though, to effectuate such execution, the cause is retained, and leave given the parties to apply for the future aid of the court. It is well known that until 1798, there was no appeal from interlocutory decrees; the prior statutes gave them from final decrees only. These laws did not define what should be taken as final decrees. The phrase was perfectly familiar to every student of the english law, and in the sense there settled, it was no doubt used by our legislature. We may then look to the english cases, to ascertain that sense. In England, no appeal could be taken except from final decrees. Yet do the books teem with cases, where the chancellor having at the hearing decreed upcfn the matters in controversy, an appeal is immediately taken to the house of lords, though various details are directed in execution of the decree, the cause retained, and leave given to the parties to apply to the court. These details are never considered as affecting in the slightest degree ’the finality of rhe decree: indeed, it is a settled rule, that the appeal does not suspend the proceedings under the decree, unless it is so ordered on particular motion, by the chancellor, or the house of lords; Gwynn v. Lethbridge, 14 Ves. 585; Waldo v. Caley, 16 Ves. 206; Willan v. Willan, Id. 216. In Waldo v. Caley, a testator gave his personal estate to his executors, in trust to pay to his wife the-neat income, interest &c. and injoined it upon his wife to lay out one half her income yearly in charities with the advice and assistance of his executors; the wife and executors differed about their power in selecting the objects of charity : the master of the rolls decided, *that the wife had the sole power, and was only in her discretion to ask the advice of the executors; that she was bound to lay out the half of her income yearly in charities; and declining, in this case, the usual course of having a scheme for applying the charity drawn up and laid before the master, he said, — “The purpose may be answered by reserving to any of the parties liberty to apply, as there shall be occasion, so that if at any time there shall be ground for supposing, that the fund has not been fairly expended, the court may be called on to interfere.” IJere, we see liberty reserved to any of the parties during the whole life of the widow, and thus, the cause retained for that whole period, so far as was necessary for that purpose: yet an appeal was immediatelj' taken. I shall cite one more case — Morice v. Bank of England, Ca. Temp. Talbot, 218, 2 Bro. P. C. new edi, 465. (Let it be premised, that in England, final decrees bind assets in the hands of executors, but interlocutory decrees have no such effect, Perry v. Phelips, 10 Ves. 34.) Certain creditors of Morice filed a bill against his executrix, praying the payment of their debts; she answered, confessing the bill; and the decree was, that an account of the personal assets be taken, and that those debts be paid in a course of administration : the bank, subsequently, sued at law and got a judgment against the executrix, as she could not in that court plead the decree: she filed her bill bringing the whole matter into equity, and praying protection: the chancellor decided, that the decree being first in time, had preference: an appeal was taken to the house of lords, where it was insisted that the decree was not final, being a mere order to take an account of the assets, and to pay the debts, in a course of administration ; but the decree of the chancellor was affirmed, thereby pronouncing this a final decree. And in Perry v. Phelips, lord Eldon shews the difference between this, and an interlocutory decree; this being a decree “ordering payment of sums, liquidated by the statement in the bill, and *the admission in the answer,” which rendered it a final decree, though coupled with an order for an account of the personal assets &c. The supreme court of the U. States can only receive appeals from final decrees. In the case of Ray v. Law, 3 Cranch, 179, the court held, that a decree for a sale under a mortgage, is such a final decree as may be appealed from.

Let us now examine the decree before us. Looking to the nature of the controversy, I apprehend, that but for the liberty reserved to. the plaintiff to resort to the court, to have an order for her annuities which should afterwards-fall due, there could have been no possible doubt that the decree of May 1826 was final. It had given to the plaintiff her whole claim, with all her costs. True, it had not decreed over against the land, in case the personal fund should prove deficient; and if she had been dissatisfied with this, she might have appealed. It is also true, that the decree had not, in words, decided the matter of ultimate responsibility between the two classes of defendants; but had it not in fact settled that point? The representatives of the personal fund had prayed the court, if it should judge the land ultimately answerable, to decree against it directly, in exoneration of them; which the court ought certainly to have done (according to West v. Belches, 5 Munf. 187, and that class of cases) if it had considered the land liable over to the personal sureties. When, then, instead of doing this, the court decreed solely and exclusively against the personal sureties, did it not just as plainly declare, that the land is not liable over to them, as if it had said so in so many words? and is not the practical effect of the decree (supposing it to have stopped there) precisely the same? subjecting the appellants to pay the whole claim, refusing them a resort to the land, and thus, in effect, putting the purchasers of the land out of court. If this was wrong, that does not affect the finality of the decree. The mode of correction was an appeal. But the decree did not stop there: it provided, that if'the *decree should prove unavailing, in whole or in part, either against Philip or John Thornton, liberty was reserved to the plaintiff to apply to the court for a further decree against either of those defendants ; and ordered the cause to be retained in court for the purpose of taking further accounts as to the annuities that might in future accrue to the plaintiff. It surely cannot be contended, that the reservation of liberty to the plaintiff, affects, in the least, the character of the decree: it was a provision for the benefit of the plaintiff, looking solely to the execution of the decree, and rendering it effectual. Did the retaining of the cause in court, for the purpose indicated, render the whole decree interlocutory? Unquestionably not, if we look to the meaning of the court. The cause was not retained to enable any of the parties to look back, or touch what had been done, but merely to enable the plaintiff to get decrees for her annuity as it should fall due. I presume there never was a decree for a running annuity, which did not in some form of words (and the form matters not) reserve to the annuitant this liberty. It answers to the scire facias, which issued, after judgment in the old writ of annuity, as new sums grew due. And if retaining the cause for this purpose, prevents the decree from being final, it follows (as was forcibly urged by counsel) that there never can be a final decree in a case like that before the court; for, during her whole life, she will be applying from year to year, and at her death, the whole matter, annuity and all, is at an end. A conclusion so monstrous as this can never be fairly attributed to the law.

I conclude that this was a final decree, and not having been appealed from within three years, cannot now be touched by this court. The appeal should be dismissed, as improvidently allowed.

Taking this view of the case, it is not material to decide whether, on the merits, the decree he right or wrong? I will say, however, that my impression is, that the chancellor was correct in subjecting first the personal estate, and consequently the estate of the surety in the executorial bond.

*BROOKE, J.

It is the settled principle of this court, that ii the whole matter put in controversy by the pleadings is decided, the decree is final, and not interlocutory, although there are reservations embracing matters in execution of the decree, and although there may be a controversy growing out of the execution of it; as in the case of Harvey v. Branson, 1 Leigh, 108. Nor is it of any consequence whether the whole matter in controversy is decided by the decree, -negatively or affirmatively: —whether the errors, if any, are errors of omission or commission, they do not affect the character of the decree. In Perry v. Phelips, 10 Ves. 34, there is much learning on this subject, and many cases examined, in the opinion of the lord chancellor; and all of them, I think, may be brought within the principles before stated. In the case before us, if the plaintiff had not sought to charge the lands in the hands of the purchasers, and had sued the sureties of the executor, on the bond for the due administration of the personal estate, the judgment for the annuities already due would have reserved the right of the plaintiff to sue out a scire facias, toties quoties, for the future annuities as they should fall due; and yet the judgment must have been held to be final. If, in this case, this had not been necessary, — if there had been no future sums to become due, — it is impossible to conceive what matter in controversy would have remained to be settled by the court. The exclusive decree against the sureties of the executor, without any intimation that the land in the possession of the purchasers, was to be subjected in any event (whether right -or wrong) negatively decided that the land was, in no event, to be subjected to the payment of the annuity; and it appears to me to have been a casual omission, that the bill was not dismissed as to the purchasers of the real estate. The appeal not having been prayed in time, was improvidently allowed, and must, therefore, be dismissed. '

My impression too is, that the decree is correct upon the merits, except in allowing six instead of five per cent, interest.

XTUCKRR, P.

In the examination of this case, we are met at the threshold by an objection to our jurisdiction over the subject. It is said, on the one hand, that the appeal has been improvidently allowed, since more than three years had elapsed from the date of the decree before the application for the appeal. In answer to this objection, it is contended, that the decree, in this case, is not final but interlocutory, and that the limitation in the statute applies oxily to the case of a final decree. The first question, then, to be examined, is, whether this be a final decree or not?

I heartily concur in the principles laid down on this subject in Royalls v. Johnson, 1 Rand. 421, and Harvey v. Branson, 1 Leigh, 108. In the former of those cases, it was decided, that where a decree is made as to one of several defendants, whose interests are not at all connected with each other, with a direction for the payment of costs as to that defendant, such decree is final as to him, although the cause may be still pending in court as to the rest. And in the latter, it is most truly said, that when a decree makes an end of a case, and decides the whole matter in contest, costs and all, leaving nothing further for the court to do, it is certainly a final decree. According to the.se principles, I was strongly impressed with the belief, that the decree in this case was final, until I had an opportunity of accurately examining the record. That examination has resulted in an opposite conviction, the reasons of which I shall endeavour succinctly to state.

1st, In this case, the cause is not out of court as to any of the parties. The entrj' is, “the court doth order this cause to be retained here for the purpose of taking further accounts as to future annuities.” The cause being retained, the parties are all of course retained in court with it. Not only is there no decree at all as to the purchasers of the real estate before the court, but the appellants themselves have still a day in court: the Cause being retained, they are not dismissed from the tribunal at whose bar they were commanded' to appear. In this regard, the case differs most '^'essentially from the other cases, in which there is “liberty reserved to resort to the court for its further interposition.” In those cases, the party availing himself of that liberty, files his petition, upon which process must issue, as his adversary has no day in court. But here, the cause being retained, the parties are still in court, and must attend to the progress of the cause at their, peril. A cause continued in court tinder these circumstances, can scarcely be said, I think, to be finally decided.

But 2ndly, does the “decree, in this case, make an end of the cause, and decide the whole matter in contest, costs and all?” in the language of the court in Harvey v. Branson. To ascertain this, it will be necessary to advert to the pleadings in the case, and the points of controversy thereby presented. The plaintiff claimed to charge both the real estate in the hands of the purchasers, and the sureties of the executor, as responsible for the personalty wasted by him, with her demand. Then, out of this claim on the part of the plaintiff, a question arose between the defendants as to which was ultimately to bear the burden. And this question was as much a part of the lis contéstala to be settled by the court, as the demand of the plaintiff itself. For it is the established principle of the court, that where the pretensions of the defendants are fairly before it, if the plaintiff has a right to charge them both, the decree will either be rendered directly against the party who ought ultimately to be liable, or if, as sometimes happens, the decree is taken against the other, he will be entitled to a decree over. West v. Belches, 5 Munf. 187; M’Neil v. Baird, 6 Munf. 316; Morris v. Terrel, 2 Rand. 6; Hubbard v. Goodwin, 3 Heigh, 492. Now, in this case, the respective rights and obligations of the co-defendants are completely ascertained by the pleadings and proofs between the plaintiff and those defendants. The question between xhem was, therefore, to be decided as part of this cause. Has it been so decided? I think not. The court has, indeed, decreed the plaintiff’s demand against the sureties of the executor, who were ^doubtless liable in the first instance, but it has not pronounced upon the demand propounded by their answer, that the real estate should be made answerable over to them, in case they should be subjected in the first instance^ to the plaintiff’s demand. So far from deciding this question between those parties, nothing is said about it, and both parties are yet before the court, awaiting its judgment upon the matter. It cannot be denied, I think, that as the cause is retained in court, as the parties are of course retained in court, and as an important and indeed vital question between the defendants, is yet unsettled, which the court ought to have decided, it may yet go on to decide that question.

It has been suggested, that the omission to decree over, was error in the decree, and did not enure to make the decree interlocutory. I do not think so. As it was entirely uncertain whether the decree against the appellants would or would not be available, the court could neither, at the date of this deeree, have decreed in favor of the appellee against the purchasers of the land, who were only liable ultimately, if liable at all, nor could it have, decreed, over against the purchasers of the land in favor of the appellants, as they had then paid nothing. I think it more reasonable to consider these questions reserved, as all the parties were before the court, than gratuitously to impute to that tri bunal, the error of omitting to dispose of an important question in the cause.

But it may be said, that, although the contest between the defendants as to their respective liabilities, has not been settled, the rights of the plaintiff as against the appellants have been finally adjudicated, that therefore the decree is final as between those parties, and that no decree as between the defendants can affect the appellee: and the case is thus supposed to be brought ■within the influence of the principle of Royalls v. Johnson. It is necessary to advert to the peculiarity of this case. The contest between the defendants, which, we have seen, the court was as much bound to adjust, as that between the plaintiff and the defendants, *did not grow out of the pleadings between them, but out of the pleadings between the plaintiff and them. Tf the decree puts an end to the cause as to the plaintiff, and puts her out of court, it puts all the defendants out of court of course. There being no cross cause as between the defendants, they can only be retained in court, and their pretensions decided, upon the foundation of a subsisting bill of the plaintiff against them; and if that bill be considered as put out of court by this decree, as a final decree, there is no foundation left, upon which the court can proceed to decree between the defendants.

I am, therefore, upon the whple, of opinion, that the decree in this case must be taken to be interlocutor}', and so the appeal has been regularly allowed. But the other judges are of a different opinion on this point, and the appeal is to be dismissed. And I the less regret that disposition of the cause, though it is contrary to my own judgment on the point, since I am of opinion, on the merits, that the decree, taking it as a decree settling the controversy between the co-defendants, is right, and that the decree ought to be affirmed ; except as to the allowance of six instead of five per cent, interest, in which respect the decree is erroneous, the plaintiff’s claim having had its origin in a will made in 1791, when the legal rate of interest was only five per cent.  