
    Ashby v. Smith and Wife.
    May, 1842.
    Richmond.
    (Absent Auges, J.)
    Wills—Unexecuted Trust to Purchase and Divide Lands—Rights of Cestui Que Trust—Case at Bar.— An inhabitant of Frederick county, Virginia, who died in 1806, desired by his will, 1. that the tract .of land on which he lived sbonld be sold by his executors, at such time and upon such terms as they in their j udgment might think would be most conducive to the advantage of his heirs; 3. that the money arising from the sale should be applied to the purchasing other lands upon the most advantageous terms, either in the state of Kentucky. or some other part of the western country tha,t his executors might think would be most to the general interest of his beirs; and 3. tbat the lands so purchased should be divided amongst his five daughters and two sons, in the following manner; each of his daughters to have 400 acres, and the residue to be equally divided between the two sons; all of which divisions he desired should bear an equal porportion to each other in respect to the quality of land. The testator appointed his wife executrix, and one of the sons executor. The son qualified as executor a few months after the testator’s death, and the widow died about two years afterwards. Tbe husband of one of the daughters purcb ased the right of another daughter, and the three other daughters sold their rights to the son who was executor. In 1816, a *bill was filed in the name of the husband and wife, to compel the executor to execute the trust by selling the land and distributing the proceeds. In 1837, a supplemental bill was filed, setting forth that In 1817 a sale was made, but the executor had taken no further step towards the execution of the trust; and praying that the plaintiffs might have a decree for their proportion of the proceeds of sale. The executor answered, that he had always been ready to purchase land In the western country for the complainants. Heed, 1. That as the trustee has improperly delayed the execution of the trust, until a great change has taken place in the situation of the western country and the circumstances of the parties, the beneficiaries ought not now tobe compelled to take lands in the western country, but should be allowéd to take their just proportion of the money arising from the sale of the Frederick lands; and that the principle of equality in the division of the said money is in this case just and proper. 3. That the female complainant’s portion of the money arising from the sale of the lands should be so secured and protected, as to prevent its being subj ected to the control or debts of tbe husband to a greater extent than if it were land, unless the wife should consent that the money be paid to the husband absolutely; as to which she ought to be privily examined, separately and apart from her husband, in the same manner as in the conveyance of her real estate.
    Decrees—Reversal—Costs.—A decree being reversed in consequence of an error committed against one of the appellees, costs decreed to be paid by the appellant to the appellees, as the parties substantially prevailing.
    Lewis Ashby, of Frederick county, made his will on the 20th of March 1806, whereby he devised as follows :
    “First, The tract of land I now live on, on Shenandoah river, together with the tract whereon my mill is situated, I desire may be sold at such time and upon such terms, by my executors, as they in their judgment may think will be most to the advantage of my heirs.
    “Secondly, The money so arising from the sale of the above laud, it is my will and desire may be applied to the purchasing other lands upon the most advantageous terms, either in the state of Kentucky, or some other part of the western country that my executors *may think will be most to the general interest of my heirs.
    “Thirdly, It is my will and desire that the lands so purchased shall be divided amongst my daughters and my two sons Alfred and John, in the following manner ; that each of my daughters to have four hundred acres, and the residue to be equally divided among my two sons Alfred and John ; all of which divisions shall bear an equal proportion to each-other in respect to quality of land.”
    By the fourth clause the testator devised a tract of land in Kentucky, derived by him from his father, to his youngest sons Buckner and Lewis. Fifthly, he stated that he had already given his two daughters, Lucy Lewis Catlett and Kitty Morehead, as much of his personal property as was intended for them. He bequeathed, sixthly, a negro girl to his daughter Judy ; and seventhly, a negro boy to his son Buckner. By the eighth clause he gave the remainder of his property to his children of the following names, viz. Judy, Alfred, Mildred, Jenny, John, Buckner, Sidney and Lewis. And lastly he appointed his wife Leannah executrix, and his son Alfred D. executor.
    On the 1st of September 1806, the will was admitted to record, and the widow in open court renounced the provision made for her. Alfred X). Ashby qualified as executor the 2d of December 1806.
    The widow survived the testator only about two years. All the testator’s children, being ten in number, are named in the will. His daughter Mildred married Lewis A. Smith.
    By a deed of the 5th of February 1813, William Catlett and Lucy his wife conveyed their rights under the said devises, to Lewis A. Smith. On the 18th of November 1815, Joel Morehead and Kitty his wife conveyed their rights under the said devises, to Alfred D. Ashby. And on the 2d of September 1816, Judy Ashby *and Jane Ashby (called in the will Jenny) conveyed their rights under the will to the said Alfred.
    On the 28th of June 1816, Smith and wife commenced a suit in the superior court of chancery at Winchester, against Alfred D. Ashby, In his own right, and as executor and trustee. There were other defendants, amongst whom were John Ashby and Sidney Ashby, the only persons, besides the plaintiffs and Alfred D. Ashby, now interested under the devise of the land in Frederick county.
    The bill, besides seeking an account of Alfred D. Ashby’s transactions as executor and trustee, asked that he might be compelled to execute the trust reposed in him, by selling the land in Frederick county and distributing the proceeds, or that the parties interested might elect to hold their proportions of the said land.
    A supplemental bill, filed in June 1827, set forth, that pending the suit, to wit,- on the 5th of November 1817, the defendant Alfred D. Ashby had sold the lands devised by his father to be' sold ; that they Were sold to the defendant John Ashby, for 10244 dollars, two thirds payable in cash, and the balance in two annual payments ; and that since the sale, Alfred D. Ashby had taken no farther step towards the execution of the trust confided to him for the' benefit of his sisters. The bill prayed that the plaintiffs might have a decree for their proportion of the rents and profits before the sale, and of the proceeds of said sale, with interest thereon.
    Alfred D. Ashby answered, that he had always been ready to purchase 400 acres of good land, such as his testator intended, in the western country for complainants.
    The death of John Ashby was suggested on the 3d of December 1828 ; and on the 5th of that month, by consent of Buckner Ashby executor and devisee of John, the suit was revived against him.
    Numerous depositions- were taken in the case.
    *On the 6th of July 1832, the circuit court pronounced the following opinion :
    “The court is of opinion that the will of the testator ought now to be construed as if it read thus : ‘ The proceeds of the Frederick lands to be invested in unseated lands in Kentucky, or some other part of the western country. The land to be selected with a view to the interest of all those of my children between whom it is divided. Of the lands so purchased, each of my daughters shall have 400 acres of an average quality, and my two sons Alfred and John the residue.’ Before the testator could have determined on any particular number of acres for his daughters, he must have formed some estimate in his own mind of the relative value of the land to be sold and that to be purchased. What that estimate was, he has not informed us. As Kentucky lands seem to have been uppermost in his mind, it is probable that the price at that time of good unseated lands in that state was in his view. What was the value which he placed upon his own lands might be ascertained with some probability by taking the opinions of his neighbours. Thus, if the trust had been executed immediately, or within a reasonable time, some approximation might have been made to such a division as the testator intended ; but it is obvious that it would have been but an approximation. The difficulty existing at the death of the testator,—one which could not have been surmounted but by the exercise of a large discretion by the trustees, is now insurmountable. One of the trustees to whom this large discretion was confided (his widow, and the mother of the devisees) died about two years after him. He never could have intended to confide such a trust to his son alone, who was so deeply interested in abusing it. His scheme was to settle his children (most of whom were then young) in some of the new and growing states ; to provide for his daughters and two of his sons, by a *sale of his Virginia lands, and the investment of the proceeds in western lands, which were to be divided by some rule of which he himself could have had but a faint idea, and which we can only guess at. It is evident, however, that he meant to provide for them all; that they all had equal claim upon his bounty : and we have no right to presume that he meant to make any great departure from equality, if he meant to depart from it at all. In this state of uncertainty,—nay, when it is impossible to say in what proportion the testator intended that his children should share his bounty, the court must apply its own rule,—equality. The son who was one of the trustees having sold the lánd, and the plaintiffs having elected to affirm the sale, the court will confirm it. The proceeds, principal and interest, must therefore be divided equally between the daughters, or those entitled to their shares by purchase, and the two sons Alfred and John.”
    Whereupon the court proceeded to decree to the plaintiff Bewis A. Smith, as well the share of his wife, as the share to which he was entitled by purchase from Catlett and wife.
    On the petition of Alfred D. Ashby, an appeal was allowed.
    The cause was argued by C. and G. N. Johnson, for the appellant, and by Cooke, for the appellees.
    
      
      Husband and Wife—Interest of Husband in Wife’s Property.—In Cleek v. McGuffin, 89 Va. 338, 15 S. E. Rep. 896, it is said: “At common law, if the wife be seised of an estate of inheritance in land, the husband, upon the marriage, becomes seised of the freehold jure uteoris, and he takes the rents and profits during their joint lives, or for his own life, as tenant by the curtesy, in case he survives the wife, having had a child born alive by her. 3 Kent Comm. 130; Ashby v. Smith, 1 Rob. Rep. 55. Hence, in the present case, McGuffin was entitled to the profits only of the surplus after the debts were paid. He was not entitled to the surplus absolutely, because It continued impressed with the character of realty, in the absence of the wife’s consent that it should be otherwise regarded. Turner v. Dawson, 80 Va. 841; Ashby v. Smith, 1 Rob. 55.”
      See also, citing the principal case on this subject, Turner v. Dawson, 80 Va. 845; Pickens v. Kniseley, 36 W. Va. 801, 15 S. E. Rep. 999.
      See monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
    
      
      Costs.—See monographic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.
    
   CABELL, P.

delivered the following as the resolution of the court.—If Alfred D. Ashby, executor and trustee of and under the will of Bewis Ashby deceased, had, in a reasonable time after the death of the testator, sold the Frederick lands, and vested the proceeds thereof in good lands, situated in the state of Kentucky, or any other part of the western country most conducive to the general interest of the beneficiaries under the will, and had assigned to each of the daughters 400 acres thereof, *of the average value of the whole tract, this court is of opinion, considering the latitude of discretion confided to the trustee, that the daughters would have had no right to complain of such investment and assignment, although it might have resulted in leaving to the two sons of Bewis Ashby a greater quantity than 400 acres each. But as the trustee has improperly delayed the execution of the trust until a great change has taken place in the situation of the western country and in the circumstances of the parties, the court is of opinion that the beneficiaries ought not now to be compelled to take lands in the western country, but should be allowed to elect to take their just proportion of the money arising from the sale of the Frederick lands, in lieu thereof: and as there is nothing in the will which clearly indicates an intention in the testator to give a preference to his sons over his daughters in relation to this fund, or, if a preference was intended, to indicate the extent of that preference, the court is of opinion that the principle of equality of right is the only just one applicable to this case. This court therefore approves of the decree of the chancellor in establishing the right of the beneficiaries to elect to take money instead of land, and in directing an equal division of the fund among the parties. But the decree is defective in not having so secured and protected mrs. Smith’s portion of the money arising from the sale of the Frederick lands, as to prevent its being subjected to the control or debts of the husband to a greater extent than if it were land ; in which case, the husband would be only entitled to the profits during the coverture, or for his own life as tenant by the curtesy, in case he survived the wife, having had a child by her, born alive ; for this money, being in lieu of land to which the wife was entitled, ought to be regarded as land, and treated accordingly, unless indeed the wife should consent that the money should be paid to the husband absolutely, as to which *she ought to be privily examined, separately and apart from her husband, in the same manner as in the conveyance of her real estate.

The decree is therefore reversed so far as it is in opposition to the principles declared above, and is affirmed as to the residue : and the cause is remanded, to be proceeded in to a final decree accordingly. But as this reversal is in consequence of error committed against one of the appellees, it is to be at the cost of the appellant.

STANARD, J., said, that as the decree of the circuit court required the appellant to make payment to the plaintiff Bewis A. Smith, of money which it was erroneous to require him so to pay, and which he could not, even with the authority of that decree, safely have paid; and as this court, by its decree, corrected the error of the circuit court, and provided for the appellant’s paying in a way which would be safe, it seemed to him that the appellant ought not to be decreed to pay costs: and he therefore dissented from so much of the decree of this court as related to the costs. In all other respects, he concurred in that decree.  