
    *Shackelford v. Newbill.
    January Term, 1856,
    Richmond.
    Absent, Tiler, J., and Gilmer, J.
    1. Wills — Construction—Contingent Remainder — Residuary Clause — Case at Bar. — A testator bequeathed as follows: ‘T lend to my son James Shackelford one-fifth partof my personal estate, to be left in the hands of my son Robert Shackelford, to let him have it as he thinks proper; but if my son James marries, I then give it to his children, to them and their heirs forever,” with a bequest of “all the balance of his personal estate not willed away,” to three other children. James Shackel-ford survived the-testator, and died unmarried, childless and intestate.' Held:
    That James Shackelford took a life estate with a contingent remainder in fee to his children, and at his death the remainder sunk into the residuum and passed under the residuary clause.
    2. Contingent Remainder — Failure to Take Eifect— Disposition. — A contingent remainder of personal estate which fails to take effect, falls into the residuum and passes to the residuary legatees.
    3. Guardian and Ward — Receipt in Full by Ward— Conclusiveness. — A ward is not concluded in equity by his receipts in full to his guardian, given shortly after attaining his majority, after a final settlement with the guardian, from showing that the guardian is still indebted to him. 0
    The will of Roger Shackelford, admitted to probat as a will of personalty, in the County Court of Essex, in the year 1829, was in the following words:
    “In the name of God, amen. I, Roger Shackelford, of the county of Essex and State of Virginia, being sick, but of sound mind and memory, doth make and ordain this, my last will and testament, in the following manner and form: First of all, I desire that all mj just debts should be paid out of my estate by my executors, and, secondly, X lend to my daughter, Rebecca Newbould, all the land I purchased of her husband, Richard Newbould, lying in King and Queen county, also I lend to her a child’s part of my personal property, *and no debts due from the said Richard Newbould before married it shall not be subject to be paid out of the said estate, and, at the death of my daughter, I then give to her children, to -be equally divided among them and their heirs forever; thirdly, I give to my' son, Carter Shackelford, the iract of land whereon I now live, to him and his heirs forever; fourthly, I lend to my son, Jam'es Shackel-ford, one-fifth part of my personal estate, to be left in the hands of my son, Robert Shackelford, to let him have it as he thinks proper; but, if my son James marries, I then give it to his children, to them and their heirs forever; fifthly, I give to my son, Robert Shackelford, and my daughters Nancy and Martha Shackelford, all the balance of my personal estate not willed awajr, to them and theirs forever; lastly, I appoint my sons, Carter and Robert Shackelford, my executors, to this my last will and testament. In witness whereof, I have hereunto set my hand and seal, this 24th day of November, 1829.”
    The devisees under the will took and held the real estate, according to the provisions of the will, all the parties interested acquiescing. Robert Shackelford qualified as executor. James Shackelford died shortly after the testator, unmarried, childless, and intestate. Richard Newbill, the husband of Rebecca Newbill, called Newbould in the will, having been taken under execution in the year 1831, surrendered in his schedule all his interest in the estate of Roger Shackelford, of which John and Richard Bagby became the purchasers, who, by their deed dated 21st February, 1834, conveyed the same to Robert Shackelford, in trust for the separate use of Mrs. Rebecca Newbill, with remainder in fee to her chil • dren living at her death. Rebecca Newbill died about the year 1834, leaving ofie child, the appellee, Oscoe A. Newbill, surviving.
    The personal estate of the testator, Roger Shackelford, consisted chiefly of slaves, w.hioh were divided in the year 1834, by commissioners, under an order of the County Court of Essex, among the legatees. They *allotted to Rebecca Newbill one-sixth part, and the other five-sixths to Robert Shackelford and his two sisters.
    Robert Shackelford settled his executorial accounts, before commissioners of the County Court of Essex, in the year 1837, at which time there was a balance found due from him to the estate of the sum of Si,428 84 principal, and $151 54 interest. He qualified as guardian of the appellee, Oscoe A. Newbill, in the year 1845, and in the year 1846 rendered an account, under an order of the County Court of King and Queen, of his transactions as trustee under the deed from John and Richard Bagby, and as guardian of the appellee. This account showed a small balance in favor of the appellee, on the 14th March, 1846, which was afterwards paid by Robt. Shackelford, who took a receipt of these words:
    “May 13th, 1847. Received of Robert Shackelford payment in full for all claims up to this date for trustee and executorship account. Oscoe A. Newbill.”
    No portion of the balance found due from the executor, on the settlement of his account in 1837, was credited to Oscoe New-bill in the trustee or guardian account.
    The appellee attained his majority in the year 1846, and in the month of September, 1847, filed his bill in the Superior Court of Chancery of Essex county against Robert Shackelford and the legatees under the will of Roger Shackelford, and their representatives, claiming that under the will of Roger Shackelford his mother was entitled to one-fifth of the personal estate, that being the child’s part intended by the testator; that James Shackelford was entitled to one-fifth of the personal estate in fee, and that in right of his mother, who was entitled as one of his distributees, he was entitled to one-fifth of James’s share, and that Robert Shackelford should be decreed to pay him his mother’s share of the balance found due on the settlement of his executorial account in 1837.
    Robert Shackelford answered, and the cause was heard in May, 1849, when the court decreed, that *Robert Shack-elford should pay to the complainant one-sixth part of the balance reported to be due from him on the settlement of his executorial account in 1837; and the court being of opinion “that James Shackel-ford, the son of Roger Shackelford, deceased, having survived his father and died without ever having married, without issue, and intestate, that the one-fifth part of the personal estate of the said Roger Shackel-ford, deceased, bequeathed under the last will of the said Roger Shackelford, deceased, passed to his brothers and sisters, his next of kin,” further decreed, that one of the commissioners should take an account of the fifth of the personal estate so bequeathed, and of its value, and what disposition had been made of the same. The usual refunding bond was required of the complainant.
    Prom his decree Robert Shackelford, in his own right and as executor, appealed. Oscoe Newbill having died, the appeal was revived against his-executor.
    Griswold, for the appellants:
    1. It was error to decide that James Shackelford took a fee under the will of Roger Shackelford, which passed to his next of kin. He took only a life estate, with a contingent remainder in fee to his children, in case he married; and having died unmarried, the remainder sunk into the residuum, and passed under the residuary clause. 2 Heigh, 377, and cases there cited ; 2 Lomax’s Dig. 230, sec. 5 and 6, and cases cited; 3 Lomax’s Dig. 178, sec. 3, and cases.
    2. As to the slaves. They had been divided in 1834 ; and the parties holding them are protected by five years’ possession. Time is relied upon in the answer.
    3. As to the balance upon the executorial account settled in 1837, all persons sui juris are barred by the statute after ten years.
    4. The account of 1837 commences with a balance from the account of 1834; and, as to that, the statute began to run against
    Mrs. Newbill in her lifetime. It *was therefore error to decree any account of the estate of James Shack-elford.
    5. It was error to decree to the appellee any portion of the balance due upon the executorial account. That balance was constituted of the hires of the slaves. It made part of the life estate; and if her portion was never paid to Mrs. Newbill in her lifetime, it was due at her death to her administrator. The appellee, as her distributee, cannot recover it. He does not claim it in that character in his bill. Her administrator" alone can recover it; and, when recovered, it will belong to her husband, Richard Newbill, who survived her.
    6. The appellee was concluded by his receipts in full; executed more than fourteen months after he became of age, with a full opportunity to investigate his claim, and all the evidence of it being of record. And even if there was satisfactory evidence to assail those receipts, as there is not, yet as the one assailed was exhibited before the filing of the amended bill, and there is no charge, nor even intimation in that bill, that it was not genuine, or had been altered, no such evidence could be read at the hearing. The genuineness of the paper was not in issue. The defendant had no notice that it Was necessary for him to sustain it. Indeed, the amended bill admits the execution of receipts.
    7. The answer alleges the payment to Mrs. Newbill in her life; and there is evidence to make it at least probable. Under such circumstances, if the chancellor had not been satisfied that it had been paid, he 'should have directed an account, or some other steps, to ascertain the fact, before decreeing against the appellant.
    Patton, for the appellee:
    The decree in favor of Oscoe Newbill was right, notwithstanding his receipt, admitting it to have been genuine.
    The husband of Rebecca Newbill was entitled to her interest in Roger Shackelford’s estate, and having surrendered it in his schedule, and the purchasers of the ^schedule having conveyed this interest to a trustee for the benefit of Mrs. Newbill, with remainder to her son Oscoe, their title to this interest, whatever it consisted of, cannot be disputed. Robert Shackelford actedas trustee, and admitted his responsibility as such. There was a balance due from him on his executorial account, which was not carried into his trustee or guardian account. Has he ever paid that balance to Mrs. Newbill or her son? He claims to have paid it to Mrs.. Newbill by the surrender of her bonds for negro hire, which is shewn not to have been true. The receipt of Oscoe Newbill was given in ignorance of the facts upon which his rights were founded.
    The question upon the construction of the will is doubtful. It is probable that the testator intended to divide his personal estate among his five children other than Carter, but he has not done so.
    It is difficult to maintain that James took only a life estate under the will. It was to be left with Robert to let James have it as he thought proper, not the profits merely, but the estate itself. And James, when put in possession of it; might dispose of it' as he might choose. The word “lend” is to be •construed according to the circumstances. Where a legacy is of such a character that the first taker has a complete jiower of disposition, although there may be a limitation over to children or others, the limitation over is void, and the first taker has the whole. If the subject disposed of here were real estate, it would be a base or conditional fee, subject to be defeated by the dev-isees leaving children.
    
      
      Guardlan and Ward. — See monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
   The decree of the court was as follows:

The court, concurring in opinion with the court, below, that the appellant, who was executor of Roger Shackelford, deceased, ¡never paid to Rebecca Newbill in her lifetime, nor to Oscoe A. Newbill, her only child, since her death, a child’s part, being one-sixth, of the balance reported to be due from him, on a settlement of his executorial accounts, made under an order of the *County Court of Essex; and admitted to record on the 20th March, 1837, is therefore of opinion to affirm so much of the decree of the 19th May, 1849, as was rendered in conformity with that opinion ; but, differing with that court in its construction of the fourth clause of the will of Roger. Shackelford, dec’d, is of opinion that James Shackelford, instead of taking a fee, as held by that court, which passed t.o his brothers and sisters in consequence of his having survived the testator and died childless, unmarried and intestate, took only a life estate, with contingent remainder in fee to his children, in case he married and had children, and having died unmarried aand childless, the remainder sunk into, the residuum and passed under the residuary clause, and is therefore of opinion, that the residue of said decree, affirming the.right of the brothers and sisters of the said James Shackelford to distribution of the one-fifth of the personal estate of Roger Shackelford, bequeathed him by the fourth clause of the will of the said Roger, and for the purpose of enforcing and effectuating that right, directing an account to be taken, by a master commissioner of the court, of said one-fifth, its value, and what disposition had been made of the same, is erroneous, and must be reversed, and th.e bills of the plaintiff, original and amended, so far as they seek any relief as to the said one-fifth bequeathed to the said James, must be dismissed.

• It is therefore decreed and ordered, that so much of the said decree of the late Circuit Superior Court of Taw and Chancery for the county of Essex, rendered on the 19th day of May, 1849, as adjudged and ordered the appellant to pay to Oscoe A. Newbill the sum of . $263 29, with interest on $230.04, part thereof, from the 6th February, 1837, till paid, with the provision suspending the force and effect of the decree, until the plaintiff, or some one for him, should execute a refunding bond in the penalty and with the condition required by law, be and' the same is hereby affirmed, and that the residue of the said decree be reversed and annulled, *and that the appellee, out of the estate, &c., do pay unto the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this court, proceeding to. pronounce such decree as the said circuit superior court of law and chancery should have pronounced in the premises, instead of that which has been hereinbefore reversed and annulled, doth adjudge, order and decree, that so much of the bills, original and amended, as sets a claim to relief founded upon an assertion of rights and interest in the one-fifth of the personal estate of Roger Shackelford, dec’d, bequeathed to James Shackelford, dec’d, by the fourth clause of the will of the said Roger, be dismissed, and that the appellant, who was executor of Roger Shackelford, dec’d, do, out of his own estate, pay unto the appellee the costs by his testator about his suit in the said circuit superior court of law and chancery expended.. _  