
    *Puryear & als. v. Cabell & als.
    January Term. 1874,
    Richmond.
    Wills.—W died in 1857. By his will he gave his estate to Ms wife W. for her life, to he used and controlled by her at her entire discretion; but as certain of his children, named, came of age or married she was at liberty to give them or either of them, as also Ms daughter Mrs. C, such part of Ms estate as she could conveniently spare, she to be the sole judge of it. And at her death he gaye his estate equally among his children named, each of whom was to account for what they had or might receive. In 1858 W has a tract of land and a number of slaves divided and valued, to allot a part to each to whom she was authorized to make advancements, and she conveys and delivers one of the parts to each of said children exceptMrs. G. Her partis retained by W until January 1865, when it is delivered to the guardian of Mrs. G’s children, she being then dead. In dividing the estate on the death of W, Held :
    1. Same—Advancements.—The advancements made to the children in 1858 are to he taken at the valuation then put upon them, but without interest during W’s life.
    
      2. Same—Same.—The advancements to Mrs. C’s children is to be valued as at the time it was delivered to their guardian.
    3. Same—Same—Time of Valuation.—The slaves in this lot were not then free, and are to he valued at what they were then worth to the children of Mrs. C.
    4. Same—Same.—The husband of one of the children having cut timber off another tract, which he and W intended should be accounted for, its value is to be charged to him and his wife in the division.
    Nathaniel Wilson, late of Pittsylvania county, departed this life in 1857, having made his will, which was duly admitted to prohate in the County court of said county. In the second clause of his will he says: “After the payment of my debts I lend unto my beloved wife, Winefred H. for and during her natural life, and to *be by her, held, used, possessed, enjoyed, managed and controlled at her entire discretion, the whole of the residue of my estate, both real and personal, of whatsoever nature or kind, subject however to the exceptions and bequests herein after mentioned: hut as my children, George, Ann Eliza, Nathaniel, Virginia, Indiana, Winefred, Maria Eouisa and Agnes, become of age or marry, my said wife is at liberty to give them or either of them, as well as to my daughter Mary C. Cabell, wife of John Roy Cabell, such part of my estate as she may think she can conveniently spare, she being the sole judge of it in every respect. ”
    After devising, to his son George a piece of land and an island and ferry attached at Danville, to his daughter Agnes, a place called Reed Island, in the fifth clause of the will he says: “At the death of my said wife, I wish the whole of my estate, both real and personal, to be equally divided between my following named children, to wit; Mary B. Baptist, wife of Richard B. Baptist, Isabella G. Bumpkin, wife of Henry Bumpkin, Martha C.. Cabell, wife of John Roy Cabell, George, Ann Eliza, Nathaniel, Virginia, Indiana, 'Winefred, Maria Bouisa and Agnes, to them and their heirs forever, such of them as have already received or may hereafter receive a part of my estate to account for it upon a division, except that my son George is not to account for the ferry and land attached thereto, and the share of my daughter Martha is to be subject to the trust hereinafter mentioned. By a subsequent clause the testator directed that the share of Mrs. Cabell should be vested in trustees for her separate use for her life, and at her death to be divided among her issue. Mrs. Wilson was appointed an executrix of the will and qualified as such.
    In 1858 Mrs. Wilson, being willing to distribute a part of the property, a bill was filed for the purpose of ^carrying this purpose into effect, and commissioners were appointed to make the division. These commissioners proceeded to act, and divided the land, assigning one of the shares to each of the parties mentioned in the second clause of the will, each share of the land being valued, the lowest at $8,490, and the highest at $9,000. But before the court acted upon the report, John R. Cabell who acted for his wife, objected to the division, and nothing further was done in that case.
    The proceedings in the suit having been stopped, Mrs. Wilson proceeded in September 1858, to divide the land which had been divided and valued by the commissioners, and certain slaves which were divided and valued by three persons selected by her, among the children of Nathaniel Wilson mentioned in the second clause of his will; (the lots of the slaves were valued at from $3,750 to $3,900;) and she conveyed the several lots of land to these several children, except Mrs. Cabell; and she also delivered the slaves allotted to each of them; with the same exception. She retained in her possession the land and slaves allotted to Mrs. Cabell, until January 1865, when Mrs. Cabell having died, she delivered but did not convey, the land and slaves allotted to Mrs. Cabell, except one slave who had died, to John R. Cabell as guardian of Mrs. Cabell’s children.
    Mrs. Wilson died about 1867; and in May 1868 Mrs. Puryear by her next friend, instituted this suit for a division and distribution of the estate of heir father Nathaniel Wilson, making the other parties interested defendants in the case. In November 1868 a decree was made in the cause directing a commissioner to take an account of all and every advancement made to the children of Nathaniel Wilson mentioned in the fifth clause of his will; and he was directed to report the amount and estimated value of all the real estate which *the widow Mrs. Wilson left undisposed of at her death.
    The commissioner made his report, and the disputed questions arising on that report, were as to the value of the advancements made to Mrs. Cabell’s children: when the advancement of land and slaves made by Mrs. Wilson to the other parties were to be valued; and whether Mrs. Puryear should be charged with the value of wood taken by her husband from the land remaining in the possession of Mrs. Wilson, and sold by him. Upon this last question there was no doubt that Puryear took and sold the wood; and though the witnesses put very different estimates upon it, the commissioner fixed it at $1,000. -This court was of opinion that the evidence showed that Puryear and Mrs. Wilson intended the wood to be an advancement.
    The evidence showed that the land which had been set apart for Mrs. Cabell, was deteriorated in value from several causes, between the time of its valuation by the commissioners and the time of its delivery to the children of Mrs. Cabell. The commissioner took the appraised value of the land in 1858, $9,000, and deducted the estimated injury to it at $1,800, and also for interest six years that the property was retained by Mrs. Wilson $1,200, making $3,016.67, and reported the advancement at $5,983.33. The slaves received by John R. Cabell for his children were valued in Confederate money as at the time they were received, at $18,000, which was reduced to current funds at the rate of fifty-five for one, making $327.27.
    There were exceptions to the report raising the questions before mentioned. And the cause came on to be heard on the 21st of March 1870, when the court held that the value of the advancements made by Mrs. Wilson to the devisees respectively, was to be ascertained as of the time the advancements were respectively made *to and received by them; and that the commissioner erred in the mode of arriving at the value of the land delivered to Mrs. Cabell’s children. And the court taking the estimates of witnesses as to its value, and scaling these estimates according to the gold value of Confederate money in January 1865, ascertained the value of the land by this process, to be eight dollars per acre, or $2,400 for the whole tract. As to the slaves the court held that in January 1865 by the constitution and laws of the State the slaves were free, or if not they were of no value to the children of Mrs. Cabell, but rather an expense. And Mrs. Puryear was held chargeable with the value of the wood sold by her husband: And the report was recommitted. Erom this decree Mrs. Puryear by her next friend Mary B. Baptist, and others of the devisees applied to this court for an appeal; which was allowed.
    J. Alfred Jones and Grattan, for the appellants.
    Quid & Carrington, for the appellees.
    
      
      Wills—Advancements.- See Cabells v. Puryear, 27 Gratt. 902, and note; and see Kyle v. Conrad, 25 W. Va. 780; Beidler v. Beidler, 87 Va. 302, 12 S. E. Rep. 753; and West v. Jones, 85 Va. 620, 8 S. E. Rep. 468, all citing the principal case. See also, Code Va. 1887, §§ 2522-2561.
    
   Staples, J.,

delivered the opinion of the court.

This is an appeal from a decree rendered by the Circuit court of Pittsylvania county. The parties to the controversy are the legatees and devisees of Nathaniel Wilson deceased. The questions to be decided grow out of a contest as to the true interpretation of the testator’s will, and a proper division of his estate. Mr. Wilson, by his will executed on the 3rd of December 1847, and admitted to probate in October 1857, gave to his wife for life, subject to certain bequests in said will contained, all his real and personal estate, to be held, controlled and managed by her at her entire discretion; and he authorized her, as her children became of age or married, to give them or either of them, including *Mrs. Martha C. Cabell, such part of her estate as she might think she could conveniently spare; she being the sole judge of it in every respect. At the death of his wife, he directed the whole of his estate to be equally divided among his children; such of them as had already received, or who might thereafter receive, any part of his estate, to account for it upon a division.

In conformity with the authority thus vested in her by the will, Mrs. Wilson, in the month of September 1858, divided among the children a valuable tract of land belonging to the estate; and in December of the same year she distributed among the same parties a large number of slaves. Mrs. Cabell, however, was not permitted to participate in this division. Her share, or supposed share, both in land and slaves was designated and set apart by the persons acting as commissioners, but they were retained by Mrs. Wilsoti in her own possession, used and enjoyed by her until January 1865, when after the death of Mrs. Cabell, both land and slaves were placed in the possession of the guardian of the children. In the mean time, however, one of the slaves thus designated had died, and the land had from various causes been much injured and greatly diminished in value; so that the share or portion received by Mrs. Cabell’s representatives was not equal to that received by either of the legatees and devisees of Mrs. Wilson’s estate. It is very clear that thus far gross injustice has been done Mrs. Cabell in the division of the estate. The main controversy between the parties is as to the mode and manner of the redress to be adopted by the court.

There can be no serious question but that the division of the estate made by Mrs. Wilson in 1858 constituted an advancement to each of the children participating in that division. It is equally clear that the value of the ^advancement must be accounted for at the time it was made. This is the general rule, and there is nothing in the circumstances of this case to justify a departure from it. The division of the land was first made under a decree of the Circuit court; but objection being made the decree w'as set aside and the suit dismissed. Mrs. Wilson, however, persisted in her purpose of having a division, which was formally and regularly made, and a deed of release executed by her and accepted by the donees. They were put in possession of their respective portions, and they or their alienees have ever since been in the enjoyment of the rents and profits. They would have been entitled to any benefit resulting from an appreciation of their respective estates, and they must’ be content to submit to any loss arising from the depreciation. The same rules must apply to the slaves. The division and allotment were regularly made, the legatees were placed in the possession of their respective portions by Mrs. Wilson, and they were ever thereafter regarded as the absolute owners, exercising complete dominion-over the slaves, enjoying all the advantages of their increase and their services, under a title unquestioned and unquestionable., This view is fully sustained by the will of the testator. He authorized Mrs. Wilson to give to his children or either of them such portion of his estate as she could conveniently spare. It was not his intention that what was so given by her should ever be returned; unless perhaps, indeed, it might be essential to an equal division of his estate; but that the part received should be accounted for upon a final division. It is difficult to imagine a stronger case for the application of the rule fixing the liability for the value of the advancement when made.

In regard to the charge of interest upon the advancements, no exception was taken in the court below to the *report of the commissioner for the failure to allow it; and it may be a question how far it is competent to urge the objection for the first time in this court.

However this may be, the general rule is, that the legatee or distributee is ,to be charged with the value of the advancement without interest. There is nothing in the will of Mr. Wilson or the circumstances of this case which requires the application of a different rule.

In the next place, it is very clear that Mrs. Cabell was not advanced along with the other children in 1858. The mere act of designating a tract of land and a lot of slaves as hers, did not constitute an advancement in any sense of the word. It gave her no title to or control of the property. It was never placed in her possession, nor did she ever receive the slightest benefit from it. It cannot be regarded asa present advancement, because there was no possession so as to bestow immediate enjoyment or opportunity of enjoyment; nor could it operate as a future advancement, because the gift was not executed. If Mrs. Wilson had died without perfecting it by a delivery of the possession, Mrs. Cabell would have had no valid claim to this or any other specific portion of the estate, but only a right to participate in the undivided residuum. And even if it can be regarded as a future advancement, its value must be estimated at the time the gift substantially took effect, which was in January 1865. The real difficulty lies in fixing a rule by which such value may be fairly ascertained. As a general rule, the price which property commands in market is the safest standard of value. But clearly that would not be a just standard in this case, as applied to the negroes received by the children of Mrs. Cabell. in January 1865. The negroes remained in their possession a little over two months; when they were emancipated by the results of the war, and the *evidence tends strongly to show that during this time they were of but little service to the children. Taking into consideration the time when this advancement was made, and the circumstances attending the transaction, it would be grossly unjust to the infants to charge them with eighteen thousand dollars, the market value of the negroes, and then, by reducing that to gold, to hold them responsible for the amount thus ascertained.

On the other hand, the Circuit court erred in holding that the negroes had ceased to be slaves in Jan. 1865. They were recognized as slaves by the Constitution and laws in force at that time in all this region of Virginia.. They were received and employed as slaves by the guardian, until the termination of the war, and though of little real value, or service to the parties, whatever it was, they must be charged with it.

So far as the land is concerned, the same observations apply to some extent. For reasons too obvious to mention, it would not be just to the other legatees to estimate the value in Confederate currency and to charge the children with the gold value of such currency. It must be admitted there is always some difficulty in adopting a standard by which to assess the value of real estate during the existence of the war, especially at the period immediately preceding the close of the struggle. The difficulty is, however, more apparent than real; as will be seen by reference to the history of a number of cases decided by this court. Meredith v. Salmon, 21 Gratt. 762; Pharis v. Dice, Ibid. 363; Kraker v. Shields, 20 Gratt. 377.

It is no more difficult to ascertain the value of á tract of land in the present currency in January 1865, than in May, or August, or September of that year. Accordingly, I think the commissioner should have been directed to estimate in the present currency the value of *the tract in question at the time it was turned over to the children by Mrs. Wilson; and for that value they should be held accountable. Without intending to express any decided opinion upon the subject, the weight of the evidence indicates that the Circuit Judge somewhat underrated the value of the land in fixing it at. eight dollars per acre. As, however, the report of the commissioner has to be reformed in other respects, the parties will have an opportunity, if they desire it, of adducing additional testimony upon this point.

The only remaining matter for consideration is in respect to the charge against Mrs. Puryear for timber taken by her husband from lands belonging to the estate.

It is very clearly proved that Puryear, with the consent of Mrs. Wilson, appropriated to his own use large quantities of this timber; that it was received by him and his wife as an advancement, and was so regarded by Mrs. Wilson and the Circuit court was entirely correct in so treating it.

Por the errors already adverted to in regard to the valuation of the land and slaves, the decree must be reversed and the case remanded for fujther proceedings in conformity with the views herein expressed; but in every other respect is affirmed.

' The other judges concurred in the opinion of Staples, J.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the negroes delivered to the guardian of the appellees, the children of Martha C. Cabell, dec’d, in January 1865, were slaves at the time of such delivery, recognized as such by the Constitution and laws then in operation, and so treated and used by the said guardian until the close of hostilities. *The Circuit court therefore, erred in holding they were not the subject of advancement. And although the said appellees were not liable for the market price of said slaves, estimated in Confederate currency reduced to gold, as reported by the commissioner, they are chargeable with the fair value of said slaves, or for their services during the period they were under the control of said guardian. The Circuit court ought to have directed an enquiry by its commissioner, with the view to ascertain the sum or amount properly chargeable against the said appellees upon the basis herein indicated; the evidence not warranting the opinion of the said Circuit court that said slaves were practically of no value, but rather an expense to the infant children.

The court is further of opinion, that the tract of land received by the guardian of the infant appellees in January 1865, constitutes an advancement as of that date, to be accounted for by them at its then existing value. The Circuit court, however, erred in fixing the price to be paid by the appellees at eight dollars per acre; that estimate, according to the weight of the evidence, being below the real value of the tract. In the present aspect of the case, it is not deemed advisable for this court to indicate any opinion as to what precise sum is chargeable upon the appellees in this respect. The whole subject is peculiarly proper for enquiry by a commissioner of the court, upon the testimony already in the record, and such further evidence as the parties may desire to adduce. The commissioner should be directed to enquire into and report the real value of the tract in question in January 1865, estimated in the present currency of the country, and with that amount the said appellees should he charged.

The court is of opinion that there is no other error in the said decree than as aforesaid.

*Therefore, it is decreed and ordered, that so much of the said decree as is above declared to be erroneous, be reversed and annulled, and the residue thereof affirmed; and that the costs of the appellants and appellees in prosecuting and defending this suit respectively, be paid out of the proceeds of the sale of the land decreed to be sold in this case, by the commissioners who may make such sale. And it is ordered that the cause be remanded to the said Circuit court for further proceedings to be had therein to a final decree, in conformity with the foregoing opinion and decree.

Which is ordered to bp certified to the said Circuit court of the town of Danville.

Decree reversed.  