| Va. | Sep 23, 1886
(after stating the case), delivered the opinion of the court.
There is no doubt or difficulty as to the interpretation of the will. By its plain provisions the widow undoubtedly took an estate for her widowhood, with power, in case she remained the testator’s widow, to divide the estate among the children, in Such proportions as she might see proper, either in her lifetime or by her last will and 'testament. And it is equally certain that she took the estate subject to the rights of creditors (Code 1873, ch. 127, sec. 3), and also affected by a trust for the benefit of the children. Knight v. Garbrough, Gilm. 27; Harrisons v. Harrison, 2 Gratt. 1; Steele v. Levisay, 11 Id. 454; Rhett v. Mason, 18 Id. 541. It was, therefore, her duty as executrix to pay the debts of the estate, including of course the Johnston debt, so far, at least, as there were assets for the purpose. And it appears that she recognized her liability as executrix to pay the Johnston debt, first, in giving her bonds for the same, signed by her as executrix; next, in taking the deed for the land to herself as executrix; and, again, in charging the estate with the Johnston payments in the settlement of her executorial accounts.
Moreover, the personal estate that went into her hands was appraised at the sum of $6,427; and although one of the witnesses testifies that the Johnston debt was paid out of the profits of the real estate, yet it is quite probable that a portion of the money at least was the proceeds of the personalty; for the reported debts, other than the Johnston debt, were not sufficient to exhaust that fund. But conceding that the land was paid for out of the usufruct of the estate, the result is the same. At most, the transaction was simply a loan by her to the estate, with wdiich she discharged the Johnston debt, not in her individual right, .and for the protection of her individual interest, but as executrix for the benefit of the estate. Hence when the debt was paid, the land became as fully subject to' the terms of the testator’s will as any other portion of his estate. That is to say, the widow was entitled to an estate therein for her widowhood, and at her death, she having remained the widow of the testator, it became the property of the children. In other words, the legal title conveyed by Johnston and wife was held by her in trust for the children.
Moreover, the doctrine of a resulting trust applies not only where property is purchased by a fiduciary with the assets of
In any view, therefore, the conveyance by the widow to Nelson was subject to the rights of the testator’s children; since the recorded deed to her gave notice to the world that the land was paid for with trust funds, or, at least, it was sufficient to put purchasers upon inquiry. Wood v. Krebbs, 30 Gratt. 715; Lamar v. Hale, 79 Va. 147" court="Va." date_filed="1884-07-17" href="https://app.midpage.ai/document/lamars-exor-v-hale-6807277?utm_source=webapp" opinion_id="6807277">79 Va. 147; Effinger v. Hall, 81 Va. 94" court="Va." date_filed="1885-11-19" href="https://app.midpage.ai/document/effinger-v-hall-6807523?utm_source=webapp" opinion_id="6807523">81 Va. 94.
The appellee also relies on the doctrine of subrogation. He contends that if an absolute estate in the “Johnston” land was not acquired by Mrs. Sowers, she was at least entitled to be subrogated to the vendor’s lien thereon, as a security for the money advanced by her, and that this right passed by her deed to Nelson. But conceding that such right .was acquired (Kinney v. Harvey, 2 Leigh, 70), and that it passed to Nelson, as contended for (Code 1873, ch. 112, sec. 7), yet it is now too late to assert it. The land was purchased by the testator in 1840; the last payment by the executrix was made in 1850; and the present suit was commenced in 1881.
True, an unsuccessful attempt was made in another suit, pending in the same court, to collect the demands asserted in the bill; but that (it is probable from the record) was in 1871, and no further steps appear to have been taken in the matter until the commencement of the present suit.
Decree reversed.