Opinion.

adopted it as a rule of life never to become endorser for any person, but being willing to accommodate the principal, applied to Vause to become bound as such endorser, with an assurance to Vause that if the principal did not pay off the note when due he (Zane) would pay it off for him. Under this assurance Vause executed the note, which was discounted for the principal, who failed to pay the same when it became due, and thereupon Zane, whose name was not upon the note, paid it off.

All these arrangements between the principal and Zane and Vause were made without the knowledge or agreement of the other sureties. It was adjudged by this court that Zane was to be regarded as one of eight co-securities, and that he was entitled to contribution from all except Vause. Of course not from Vause, because he had agreed to be responsible in the lieu and stead of Vause, and had paid for him.

Now, suppose Lee had paid off this note in question, would Stovall be entertained to say he did not know Lee was on the note, and that for that reason he declined to contribute. Lee would be entitled to have contribution in such case, and why? Because he had paid as co-security, and Stovall was bound to contribute as co-surety.

Now, then, if Stovall is made to pay all, shall not Lee contribute his due share? And why should not the corporation court, with both parties before it, decree accordingly in the first instance, without discriminating against Stovall and leaving him to his suit against Lee?

But the court below not only decreed that Stovall should pay the whole debt, but that he should have no contribution from Lee. We think this decree was therefore erro

neous.

Another ground of complaint and assignment of error is that the court went directly against the surety without first ascertaining and subjecting the lands of the principal.

Opinion.

In the case of Horton and als. v. Bond, 28 Gratt. 815, it is aptly said by the court: "While it is true that the sureties, as well as their principal, are all bound by the complainant's judgment, and he has the undoubted right to resort for satisfaction to the property of each and all of them, yet in equity, in a suit in which all the parties are alive and before the court, the court will respect the equities of the parties inter sese, and administer them upon the principles peculiar to the forum, as far as that can be done without too great delay, and without prejudice to the rights of the creditor. The principal debtor's lands should be first subjected to the exoneration of the lands of the sureties.

This case was cited approvingly in Gentry v. Allen, 32 Gratt. 254, and the court in that case said: "The decree of the circuit court is erroneous in decreeing against the property of only one of the sureties. All three of these were made parties to the bill, and no satisfactory reason is given for the failure to decree against each his due proportion of the appellee's judgment." And so say we in this case.

It was error to appoint a receiver in this cause to proceed to intercept the revenues from one surety's lands, before first subjecting the lands of the principal, and before taking any steps against the co-surety. It does not appear from this record that there was any necessity for the appointment of a receiver in the cause. The judgments bound lands which are estimated at many times the amounts of the same; executions had issued, and the tenants had been convened by garnishee summons, and it does not appear that the ordinary process of the law was likely to prove unavailing.

We are of opinion to reverse the decree and remand the cause to the corporation court of Danville for further proceedings to be had therein, in accordance with this opinion.

DECREE REVERSED.

Syllabus-Statement.

Bichmond.

CARR AND AL. V. EFFINGER AND ALS.

December 13th, 1883.

WILLS-Construction-Case at bar.-Testator gave annuity of $100 to his mother, "to be paid out of the money arising from the bonds due me," and then provided as follows: "What money or bonds I have in possession, or judgments due me, I leave unto my beloved wife to be collected, should she think it best, and vested in Confederate bonds, or loaned out at interest. Out of the interest thus arising my wife is to pay to my mother the $100 annually so long as my mother shall live,

and the remainder of the interest thus arising is to be used by my wife for her own benefit. I also leave to my wife five shares of stock in the O & AR R, which she is to sell at such time as she may think proper and invest the proceeds in Confederate bonds or loan it out at interest for her benefit. . . At the death of my wife,

what bonds she may not have used I give to my two sisters, C T and L E, and the children of their bodies." HELD:

The wife takes an absolute estate in the property, subject to the charge of the annuity to the mother. May v. Joynes, 20 Gratt. 692.

Appeal of Samuel D. Carr and W. J. C. Waller from two decrees of circuit court of Albemarle county, rendered, one on 18th August, 1882, in vacation, and the other on 13th October, 1882, in the chancery cause of Effinger, &c., v. Carr, &c., wherein appellants are defendants.

Opinion fully states the facts.

S. V. Southall and J. M. White, for the appellants.

J. H. McCue, T. P. Fitzpatrick, C. L. Martin and S. M. Johnson, for the appellees.

Opinion.

RICHARDSON, J., delivered the opinion of the court.

The controversy in this case involves and must turn upon the proper construction to be given to certain clauses, and especially the 6th and 7th clauses, of the will of John Diggs, late of Albemarle county. In order to a proper understanding of said clauses it is necessary to notice as immediately connected therewith the next preceding or fifth clause of said will.

"5th. It is my will and desire that my mother be paid one hundred dollars annually, out of the money arising from the bonds due me, so long as she may live."

"6th. What money and bonds I have in possession, or judgments due me, I leave unto my beloved wife, to be collected, should she think it best, and vested in Confederate bonds or loaned out at interest. Out of the interest thus arising my wife is to pay to my mother the one hundred dollars annually so long as my mother shall live, as hereinbefore devised in clause the fifth, and the remainder of the interest thus arising is to be used by my wife for her own benefit. I also leave to my wife five shares of stock in the Orange and Alexandria railroad, which she is to sell at such time as she may think proper, and vest the proceeds in Confederate bonds or loan it out at interest for her benefit. She shall also be entitled to any dividends arising from said railroad stock."

"7th. At the death of my wife, what bonds she may not have used I give to my two sisters in Missouri-namely, Caroline Thomas and Lucinda Effinger, and the children of their bodies."

It is proper, before proceeding to discuss these provisions of the testator's will, to state so far as necessary the facts and circumstances as disclosed by the record.

The testator, John Diggs, died in 1863, and his will was admitted to probate at the May term of the county court of

Opinion.

Albemarle county of that year. Testator's mother died before he did, and his wife, Lucy B. Diggs, died in May, 1880. The testator was possessed of a large estate, real and personal, all of which he disposed of by his said will. And in the eighth and last clause of his will the testator appointed his wife his executrix, alluding to her as his beloved wife, Lucy B. Diggs, and requested that no appraisement of his estate be had and no security required of her as executrix.

Among the assets of the testator's estate which went into the hands of his wife, the said Lucy B. Diggs, was a bond executed to the testator by Marcus Durrett on the 1st day of March, 1862, for $3,000, the amount of Confederate money then loaned said Durrett by the testator, John Diggs, upon which bond was credited as of March the 9th, 1863, $180, one year's interest.

It further appears that testator's wife, Lucy B. Diggs, was the daughter of Dabney Carr, deceased, and brother of the appellant, Samuel D. Carr. Dabney Carr died in the county of Albemarle in 1862, and Marcus Durrett, the obligor in said $3,000 bond, qualified as his sole executor, and as such, in November, 1862, sold, as directed by the will, the real and personal estate of his testator, for Confederate money, at which sale the appellant, Carr, became the purchaser of the land, 530 acres, at the Confederate price of $17.55 per acre, aggregating $9,301.50.

Mrs. Diggs, some time in the year 1863, disposed of said $3,000 Durrett bond as a gift to her brother, the appellant, Samuel D. Carr, who used the same in settling or paying the balance due from him to said Marcus Durrett as executor of Dabney Carr. This occurred probably in September, 1863, when, so far as disclosed by the record, it does not appear that the appellant, Carr, had any knowledge or had ever heard of the claim of the appellees to said $3,000 bond, or had even ever seen the will of John Diggs.