
    Richmond.
    Philips & als. v. Williams, &c.
    
    1. Interest will not be allowed on the arrears of an annuity, which was to be paid in agricultural products at a particular place, the value of which was to be ascertained by testimony; and in the absence of any proof of a demand, at the place where it was to be paid, or of an agreement to dispense with such demand, and to convert the same into money.
    2. Land on which the annuity is a charge, having been sold during the pendency of the suit, it will be directed to be sold to satisfy the arrears of the annuity, without noticing the pendente lite purchaser-.
    3. A decree of an Inferior Court being affirmed in consequence of an equal division of opinion in the Court of Appeals, that is a decision which settles the principles of the cause involved in the decree of the Inferior Court.
    Ill February 1834, Leroy P. Williams and Ann M. his wife, filed their bill in the Superior Court of Fauquier county, against John P. Philips and Elizabeth his wife, and other defendants, for the purpose of enforcing certain claims to which they supposed themselves entitled, under the will of William Pickett, sr., a copy of which is exhibited with the bill. That portion of the will which relates more particularly to their claims, is as follows. The first clause is in these words:
    
      “I give to my wife Lucy Pickett, the plantation on which I now live, consisting of three small tracts, and containing altogether about three hundred and forty-three acres, and five negroes, such as she may choose; all my stock of every kind, household and kitchen furniture, farming utensils at d horses, and all the crop of every kind growing on said farms at my decease, and retained for the use of my family and farm, out of such as may be devised, to hold during her natural life.” And then, after some specific legacies, the testator proceeds: “My will is, that my daughter Agga Helm, and her daughters, live with my wife, and be supported out of the property given to her; and after the death of my wife, I give to my said daughter all the furniture left to my wife, except one bed and furniture, which I give to Lucy Harrison.” He then makes some other specific bequests, among which he gives two negroes to Mrs. Helm, after the death of his wife. He then devises the whole residue of his estate, real and personal, to George B. Pick’eit, in trust, for the benefit of his sons, George Pickett and William Pickett, and their families, with power of appointment by last will and testament in the said George aud William respectively, &c., and with authority to the trustee, with the consent of his said sons George and William, to sell and convey the whole or any portion of the trust subject devised to them and their families respectively, and vest the proceeds in other property, to be held to the same uses; and then follows the clause of the w'ill on which the complainants rest their claims, viz: “ It is further my will, that my daughter Agga Helm and her daughters, shall occupy one half of my dwelling-house, and one acre of land attached thereto, and have free access to my wood land on the said tract, and take and carry away necessary fire wood and timber for the enclosure of the garden and repair of the house ; and that they shall be furnished with four hundred pounds of pork and ten barrels of com per annum, out of the estate devised in trust to r , George B. Pickett, to be delivered to them on or before the first day of January in each year, at my present dwelling-house.”
    The bill alleges that the complainant, Ann M. Williams, and her sister Lucy Jennings, (who is afterwards made a party to the suit,) are the daughters of Agga Helm, referred to in the above clause, and seeks to recover for the complainant Mrs. Williams, her proportion of the arrears of the corn and pork, or its equivalent in money; which, it is alleged, has been for many years in arrear, and unpaid to her.
    
      Philips and wife, in their answer, state that the defendant Elizabeth L. Philips, is the daughter of William Pickett, jr., son of William Pickett, sr., and one of the beneficiaries in the trust created by his will; that the said William Pickett died a few years after his father, (viz. in 1817", the father having died in 1814,) leaving a will, by which he executed the power of appointment over a portion of the trust fund vested in him by his father; that under that appointment, the defendants hold the property derived from the estate of William Pickett, sr., and have held it since the death of William Pickett, jr. They deny that, either under the will of William Pickett, sr. or by virtue of any admission or acquiescence on their part, the complainants have any claim upon the property conveyed in trust to George B. Pickett, and especially upon that portion of the trust property in their hands. They say they never recognized, in any manner, the pretensions set up in the bill, but, on the contrary, have always regarded and treated them as wholly without foundation, in any just construction of the provisions of the will, or the intent of the testator.
    The cause was removed to the Superior Court of Spottsylvania, where, in May 1838, a decree was pronounced, sustaining the claim of the plaintiff and her sister, to the annual provision of pork and corn, and diacting a commissioner to take an account of the balance due them by reason thereof, &c.
    An appeal was taken from this decree ; and the ground error alleged was, that the charge created by the will of William Pickett, sr. was only for the life of his widow Lucy Pickett, or at farthest, for the life of Mrs. Helm. The caso was heard here by a Court, consisting of four Judges ; and they being divided in opinion, the decree of the Court below stood affirmed under the act of Assembly; and the cause was sent back.
    After the return of the cause to the Court below, it was referred to a commissioner to take the account directed by the decree of May 1838. That account was taken, and the commissioner reported as due to the plaintiffs, the sum of 547 dollars 15 cents, with interest on 336 dollars from the 15th of April 1845, and on two other small sums from the 1st of January 1846 and ’47; and as due to Lucy Jennings, 377 dollars 36 cents, with interest on 244 dollars 50 cents from the 15th of April 1845, and on 25 dollars from the 1st January 1846, and 22 dollars 50 cents from the 1st January 1847.
    In stating the account, the commissioner ascertained the price of pork and corn in the fall of each year, and credited each of the parties with one half of the amount which the will of William Pickett, sr. directed to be furnished; and interest was calculated thereon from the end of the year. The difference in the amount reported to be due to the parties, arose from the fact that Mrs. Jennings had been paid up to 1834; though it did not appear by whom the payment was made.
    The defendants excepted to the report, on the grounds, among others, that interest was charged on the sums reported due; that the daughters of Mrs. Helm were credited each with one moiety of the pork and corn, instead of one third thereof; and because the report and account did not ascertain who and what trust property was liable to pay the amount reported due; and in what . t proportion each party was to pay.
    It appeared, in evidence, that Lucy Pickett died before the year 1826; that Mrs. Helm, the daughter of William Pickett, sr. lived at the mansion-house of said William Pickett, until the early part of the year 1826, when she died; that Lucy Helm, one of the daughters of Mrs. Helm, married Thomas O. Jennings in 1820, and then left the residence of William Pickett, sr., and has ever since resided in the town of Warrenton ; and that before the death of Mrs. Helm, her daughter Ann went to live with Mrs. Mary Pickett, the widow of William Pickett, jr., where she was living at the death of her mother; and that she has at no time since lived at the mansion-house of William Pickett, sr. And it further appeared, that since this suit was commenced, the devisees of William Pickett, jr. had sold and conveyed to Thompson Rector the tract of land devised to William Pickett, jr. by his father William Pickett, sr.
    
    When the cause came on to be heard, the Court overruled the exceptions to the report; and decreed that unless the defendants, or some of them, should pay to the plaintiffs and Lucy Jennings, the sums reported due to them, within six months from the date of the decree, that Rice W. Payne, who had before been appointed a trustee in place of George B. Pickett deceased, under the will of William Pickett, sr., should proceed to sell the property left to said George B. Pickett in trust for William Pickett, jr., for the purpose of paying one moiety of the sums due the plaintiffs and Lucy Jennings; and in like manner to sell the property left in trust for George Pickett, for the payment of the other moiety. From this decree, the defendants applied to this Court for an appeal, which was allowed.
    
      Stanard and Bouldin, for the appellants.
    
      Cooke, for the appellees.
   Allen, J.

delivered the opinion of the Court.

This Court is of opinion, that as by the interlocutory decree of the 26th May 1838, the commissioner was directed to take an account of the balances due the plaintiffs and the defendant Lucy Jennings, on account of the annual provision of 400 pounds of pork and ten barrels of corn, crediting the said plaintiffs and defendant with the annual value of said pork and corn, and charging them with any payments they have received on account of such annual provision ; and as said interlocutory decree was on the 25th January 1842, in consequence of an equal division of opinion in this Court, in pursuance of the act of Assembly, duly affirmed ; such affirmance must be regarded as a decision upon the pleadings and proofs in the cause, that the principles upon which such account had been ordered to be taken in and by said interlocutory decree, had been correctly settled. The Court is further of opinion, that said decree so affirmed under the issue presented by the pleadings in the cause, ascertained and determined that the provision of pork and corn made in the will of William Pickett, sr. did not terminate with the life either of Mrs. Pickett or Mrs. Helm, and that the whole thereof survived to the daughters of Agga Helm during their lives and the life of the survivor.

But the Court is further of opinion, without intending to decide whether as a general rule interest can properly be allowed upon the arrears of an annuity, that under the circumstances of this case, where the annuity was to be paid in pork and corn, delivered at a particular place, the value of which was to be ascertained by testimony, and in the absence of any satisfactory proof of a demand at the place where it was to be paid, or of an agreement to dispense with such demand and convert the same into money, no interest should have been allowed on the arrears thereof; and that said Circuit Court erred in overruling the exception taken to the report of the commissioner for allowing such interest. The Court is further of opinion, that there is no error in the residue of said decree. It is therefore adjudged, ordered and decreed, that the same, so far as it is herein declared to be erroneous, be reversed with costs; and 1 1 that the same be in all other respects affirmed. And that the cause be remanded in order that the same may be proceeded in according to the principles herein declared, and for a final decree.  