procured the title to be made to his father, | the sale of "all the black walnut trees" of that dithe defendant. Judgments were obtained mension growing on the land. against the said J. B. Raby, and under them executions issued, and were levied upon the land. The plaintiff purchased at a sale under these executions, and brings this action for the possession, and also to have the defendant declared a trustee for his benefit. No answer was filed, and judgment was rendered in accordance with the prayer of the complaint.

(Supreme Court of North Carolina. Dec. 21,500,) that is to say, all the black walnut

trees situated and growing in what is known as the "Canebrake Bottom," and 1. A contract of sale was as follows: P. sells on timbered lands of said J. E. Wilfong, at to H. 125 trees, "that is to say, all the black walnut Rock House, as aforementioned, always extrees situated and growing in what is known as the cepting such walnut trees as measure, at a Canebrake Bottom,' and on timbered lands of height of two feet from the ground, a cirWilfong at Rock House, as aforesaid, excepting cumference around the bark of less than such walnut trees as measure, at a height of two twenty-four inches; and that is the basis feet from the ground, a circumference around the bark of less than 24 inches. *That on the of this contract. Second. That on the ununderstanding that $2,500 represents the value of derstanding that $2,500, as aforementioned, the 125 black walnut trees as aforesaid, that is to represents the value of the one hundred say, the trees of black walnut timber described in and twenty-five black walnut trees as Paalzow's proposal as situated on the aforesaid, that is to say, the trees of black lands of Wilfong, a deduction in dollars calculated walnut timber as described in Mrs. John on this basis (the understanding that $2,500 repre- Paalzow's proposal, dated Hickory, 25th sents the value of 125 trees) to be made for each and every tree falling short of said number of 125." March, 1888, as situated on the lands of J. Held, a contract for the sale of 125 trees of the di- E. Wilfong, a deduction in dollars, calcumensions named at the price of $2,500, and not forlated on this basis, be made in proportion

from the last payment hereafter set forth | of said sixty trees became liable for the for each and every tree falling short of said same, which plaintiff avers were worth number of one hundred and twenty-five twenty dollars each. Wherefore, plaintiff black walnut trees aforementioned. Third. demands judgment for the sum of twelve That the payment of said $2,500 be in in- hundred dollars, and for costs." Defendstallments, as follows, that is to say: ant demurred to the complaint on the folFirst payment, of $666.60, to be made to lowing grounds: "(1) That it appears upsaid vendor, John Paalzow, by purchaser, on the face of the complaint, by reference Major J. F. Houston, on the legal title to to the contract set forth in paragraph 3 said walnut timber being made to the said thereof, entered into between plaintiff and purchaser; second payment, of $1,000, (2d,) defendant's agent on the 29th day of March, be made thirty days after payment of the 1888, that the defendant purchased of plainfirst payment; third payment, of $416.60, tiff all the black walnut trees situated and (3d,) to be made in thirty days after the growing in what is known as the 'Canepayment of the second payment, or sixty brake Bottom,' and timbered land of J. E. days after first payment; fourth payment Wilfong, at Rock House, Catawba county, of $416.60, (4th,) to be made similarly, or excepting walnut trees as measure, at the ninety days after first payment. Fourth. height of two feet from the ground, a cirThat said John Paalzow hereby secures to cumference around the bark of less than Major J. F. Houston the right of way over twenty-four inches, at the agreed price of the Rock House property as aforesaid, to twenty-five hundred dollars; but it also haul the trees, etc., without injury to the appears in said complaint that said purproperty, crops, etc., and also all other chase money has been paid, and that the rights, etc., as given to said John Paalzow amount sued for is in excess of said sum by said J. E. Wilfong in the title deeds as contracted and agreed to be paid, and aforementioned; and that said Major J. F. which was paid; and it is not alleged that Houston agrees to move the black walnut any of the walnut trees used by defendant trees in twelve months, as enacted in said under and by virtue of said contract were title deeds. Witness our hands and seals smaller than, or other than, the ones sold this 29th day of March, 1888, at Morganton, defendant, or that any of said walnut trees N. C. [Signed] JOHN PAALZOW. [Seal.] so cut and used by defendant measured, at [Signed] J. F. HOUSTON, [Seal,] General a height of two feet from the ground, a cirManager N. C. Estate Co., Limited. Wit- cumference around the bark of less than nessed by: [Signed] ASHLEY T. W. WILL- twenty-four inches. (2) That it is not IAMS. [Signed] D. C. PEARSON,'-and that charged in said complaint that defendant defendant paid plaintiff said sum of twen- accepted, used, or cut any walnut timber ty-five hundred dollars for aid hundred in excess of the number of one hundred and and twenty-five trees. (4) That, in pursu- twenty-five trees; and it is alleged that ance of the written contract hereinbefore said walnut trees in excess of said number, referred to, the defendant went upon the amounting to sixty trees, were not used land of the said J. E. Wilfong on the 3d by defendant, but were wrongfully and day of April, 1888, and took possession of tortiously attached by the sheriff of Caall the walnut trees thereon, by marking tawba county and his deputies, to satisfy and numbering up to one hundred and fifty creditors of defendant; but it is not alleged trees, and soon thereafter began to cut that defendant procured said attachment down and haul them off. (5) That there to issue, or said levies to be made, and no were growing and standing on the said liability is upon this defendant by reason land of J. E. Wilfong one hundred and of the same. (3) That it is not alleged or eighty-five walnut trees, of the dimensions shown that the legal title to said walnut of said written contract, or an excess of timber has been handed to defendant, and sixty trees over the number of said one the same is a precedent condition to any hundred and twenty-five sold to defendant liability by defendant." The demurrer was as aforesaid. (6) That plaintiff made de- overruled. From the judgment overruling mand on defendant for the sum of money the demurrer, the defendant appeals. that was due him for the number of trees in excess of the one hundred and twentyfive so sold to defendant, but defendant refused to pay the same, and continued cutting and removing the timber, and so continued until the defendant failed in business, became entirely insolvent, as plaintiff is informed and believes. And the timber cut and removed, and also the trees growing and standing upon the land of said Wilfong, including the said sixty trees in excess, had been attached by the sheriff of Catawba county and his deputies, to satisfy the creditors of the defendant. (7) That the defendant unlawfully converted the said sixty trees in excess of the number sold to the defendant to its own use, as aforesaid; and that the plaintiff was the owner of the same, and by said unlawful and willful removal, and by said unlawful and willful trespass, the plaintiff has been damaged; and the defendant by said unlawful and willful removal and conversion

I. T. Avery and S. J. Ervin, for appellant. F. L. Cline, for appellee.

CLARK, J. The contract is not very carefully drawn; but, upon consideration of the whole contract, we are of opinion that the agreement was for the sale of 125 trees, of dimensions named, at the price of $2,500. While it is clear that it was the opinion of the parties that such number would embrace "all the black walnut trees" of that dimension growing on the land, yet those words are not to be construed by themselves. Being general words, they are limited by the evident agreement of the parties that the number of trees sold did not exceed 125. The second paragraph of the contract recites that "on the understanding that $2,500 represents the value of the 125 black walnut trees aforesaid," etc. The contract further provides for an abatement at that rate, $20 per tree, should the number of trees fall under the stipulated

tate.

125. Twice in the same contract reference | personally chargeable with the debts of the esis made to the fact that the contract is on the basis of 125 trees of the dimensions 7. In the absence of proof, a general replication is a complete answer to the plea of the statute named. There is no provision, it is true, of limitations. for payment for trees in excess of that number. It is open to the defendant, whenever he got his 125 trees, to stop; and, if he chose not to do so, but cut more trees than he had bought, he is liable for their fair value.

The complaint alleges that the defendant "unlawfully converted said sixty trees in excess of the number sold him to his own use, and by said unlawful and willful removal" and trespass, etc., plaintiff has been damaged. We see no force, therefore, in the second ground of the demurrer.

LEWIS et al. v. MASON'S ADM'R.1
(Supreme Court of Appeals of Virginia. Feb.
19, 1885.)

EQUITY-PLEADING-HUSBAND AND WIFE-DE-
LIVERY OF BOND-GIFTS-DEVASTAVIT-LIMITA-
TION OF ACTIONS.

RICHARDSON, J., dissenting.

Appeal from circuit court, Essex county. R. B. Lewis, Thomas Croxton, and James M. Mathews, for appellants. J. G. Mason and T. R. B. Wright, for appellee.

FAUNTLEROY, J. The facts necessary to be stated, as disclosed by the record, are as follows:

R. M. T. Hunter and M. R. H. Garnett, on the 10th day of April, 1860, executed As to the third ground of the demurrer, their bond to Wiley Roy Mason, executor this is not an action for the value of the of A. H. Mason, deceased, for $4,000, pay125 trees sold, and for which plaintiff con-able on demand, bearing interest from Jantracted to convey the legal title, but for uary 1, 1860. M. R. H. Garnett, on July the alleged unlawful conversion of 60 trees 26, 1860, married Mary P. Stevens, daughin excess of the contract number. The ter of E. A. Stevens, of the state of New court below rightly overruled the demur- Jersey. E. A. Stevens, on 25th July, 1860, rer, and defendant has leave to set up his the day before the said marriage, executed defense to the merits by answer. No error. his bond to M. R. H. Garnett for $50,000, bearing interest semi-annually, at the rate of 6 per centum per annum, and payable five years after date. M. R. H. Garnett, on the 19th day of May, 1861, indorsed this bond as follows: "I hereby assign this bond to my wife, Mary P. Garnett, for her Sole and separate use, with power to bequeath it as she pleases, by last will and testament. M. R. H. GARNETT. May 19th, 1861." On the 15th day of August, 1861, M. R. H. Garnett executed his last will and testament, and in the first clause thereof bequeathed as follows: "I give to my wife her father's bond to me for $50,000, with whatever may be due thereon and unpaid at my death. I give her also the legacy left her by Mr. Picton, her grandfather, or as much thereof as may be due from his executors at my death; and all plate, jewels, furniture, books, etc., she brought with her. These, and any other bequests to her herein contained, shall be in lieu of dower. I give my wife, during widowhood, the exclusive use and occupation of the house and lot and garden at Elmwood, and the furniture; also sixty barrels of corn yearly; also the right to graze six cows and four horses on Elmwood plantation, and the right to take fuel from the woods. These rights shall not be transferable. Inasmuch as my affairs are so mixed with my mother's that they cannot be separated without serious damage to the property, I give and bequeath all the rest and residue of my estate, of all kinds, to my mother, with power to sell any part or all of it, in trust, first to pay my debts," etc.

1. In a suit by a creditor for an account of a deceased husband's estate, and for payment of plaintiff's debt, the wife, who was also administratrix c. t. a., answered that a certain bond executed by her father to the husband had, in pursuance to an agreement at the time of its execution, been assigned to her by a post-nuptial settlement, as her sole and separate estate. Held that, as these allegations were in no way responsive to any allegation in the bill, but were of new matter, the wife was bound to establish them by independent and satisfactory proof.

2. In view of the fact that the husband subsequently bequeathed the bond to the wife, and in the absence of any testimony showing a delivery, an indorsement by the husband, assigning the bond to the wife "for her sole and separate use, " is not sufficient to pass the title to the wife.

3. The wife being her husband's administratrix, her possession of the bond after his death is not evidence of delivery.

4. Though, at the time of the indorsement, the husband was in unembarrassed circumstances, and the amount of the bond would not be an unreasonable provision for the wife, yet these facts, in connection with the indorsement, will not be allowed to operate as a settlement on the wife, as Code Va. 1860, c. 116, § 1, p. 558, in force at the time of the indorsement, provided that "no gift * of any goods or chattels shall be valid unless by deed or will, or unless actual possession shall have come to and remained with the donee, or some person claiming under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be a sufficient possession, within the meaning of

this section."

5. The indorsement of assignment on the bond having been made without valuable consideration, and after plaintiff's debt was contracted, it is void as to him, under Code Va. 1860, c. 118, § 2, and Code Va. 1873, c. 114, § 2.

6. An administratrix c. t. a., who permits the trustee under the will to take possession of the personal property belonging to the estate before the payment of its debts, is guilty of a devastavit, and, to the extent of such property, she becomes

'Reprinted from 84 Va. 731. v.10s.E.no.15-34

M. R. H. Garnett died in the month of February, 1864. His will was admitted to probate on the 21st of March, 1864. R. M. T. Hunter, the executor named therein, refused to qualify; and the widow, Mary P. Garnett, qualified as administratrix with the will annexed, on the 18th of April, 1864, and she, as such administratrix, in conjunction with Mrs. Maria H. Garnett, the testamentary trustee, proceeded to pay off the debts of the estate. On June 1, 1869, Mary P. Garnett, the widow and administratrix, intermarried with E. P. C. Lewis; and in December,

1869, the estate of M. R. H. Garnett was E. P. C. Lewis and wife answer jointly, committed to William G. Newbill, sheriff-the first denies all personal knowledge of Essex county, as committee c. t. a. d. b. n. of the estate of M. R. H. Garnett, deceased. On the 16th day of February, 1871, R. M. T. Hunter and Mary E., his wife, made a deed of trust conveying two tracts-one of 480 acres, in Essex county, Va., and one of 1900 acres in Nicholas county, W. Va.-to Benjamin R. Baird and James D. Hunter, trustees, to secure his creditors generally and pro rata. On the 18th day of January, 1875, the bill in this suit was filed to foreclose the deed of trust executed by R. M. T. Hunter and wife, and to subject the estate of M. R. H. Garnett, deceased, to the payment of the debt due to the estate of complainant's intestate by the bond, aforesaid, of R. M. T. Hunter and M. R. H. Garnett. The bill prays that an account may "be taken of the personal effects received by and for the use of the said Mary P. Garnett as such administratrix with the will annexed, as aforesaid; also an account of the testator's personal and real assets that came into the hands of Maria H. Garnett, trustee, as aforesaid; and also an account of the personal property, if any, that came to the hands of William G. Newbill, sheriff of Essex county," etc.

of the matters stated in the bill; the latter admits her qualification on M. R. H. Garnett's estate in 1864, and her marriage with Lewis in 1869; but both deny any knowledge of the claim asserted by the complainant, and require proof. The female respondent, Mary P. Lewis, denies that there ever came to her hands, either for her own use, or as administratrix of her former husband, M. R. H. Garnett, deceased, “ any article of personal property whatever, for which she can be held accountable to the estate of the said M. R. H. Garnett, except the purchase price of the property purchased from Maria H. Garnett, trustce under the will of M. R. H. Garnett, which was paid and applied in full to the debts of the said M. R. H. Garnett." She denies that she took, as a bequest under the will of her said first husband, the bond of her father to him, the said M. R. H. Garnett, for $50,000, or the legacy left to her by the will of her grandfather, Mr. Picton, referred to in the will of M. R. H. Garnett. She alleges that, on her marriage with M. R. H. Garnett, her father gave this bond for $50,000 to him, with the express understanding, at the time, between them, that it was to be for the Various proceedings were had in the separate use and benefit of herself, and cause, and a decree was entered on July 3, that it should be settled on her by her 1875, directing the trustees, Baird and Hun- said husband. She alleges that, in purter, to sell the real estate conveyed to them suance of the said agreement between the by R. M. T. Hunter and wife for the pay- said M. R. H. Garnett and her father, the ment of his debts; and on the 27th of Sep- said M. R. H. Garnett, her husband, made tember, 1875, the said trustees reported the an assignment of the said bond on the sale of the land in Essex county, and their 19th day of May, 1861, and indorsed the inability to sell the land in Nicholas coun- same on the back thereof, and delivered ty, W Va. The land in Essex county, Va., the same to her; and she claims that the sold for not enough to pay the debts of R. said bond was owned and held by her M. T. Hunter, and left a large debt due to from that time till payment was made to the complainant. The bill charges that M. her after the death of the said M. R. H. R. H. Garnett died possessed of a very large | Garnett, and that no part of it was ever personal estate, more than sufficient to pay paid to the said M. R. H. Garnett during all his debts, and that he was also seised and his life-time, but that the whole of it was possessed of large and valuable real estate paid to her by the executors of her father's in the county of Essex, Va. That, by vir-will during the years 1865, 1866, 1867, and tue of her powers as administratrix, the 1868. She further alleges that the said M. said Mary P. Garnett became possessed of R. H. Garnett, at the time of the said asthe greater part of the said testator's per-signment, was in possession of a large sonal estate; and that the said Maria H. real estate in Essex county, Va., and in Garnett, testamentary trustee, by virtue Nicholas and Greenbrier counties, W. Va., of the powers conferred upon her by the and also some 60 slaves and a large persaid will, sold and conveyed the farm sonal estate other than slaves, greatly in called "Mount Pleasant" to the said Mary excess of his debts then due or afterwards P. Garnett for $17,000, as also the other contracted; and she relies on the statute tracts in Essex county, Va., and in Green- of limitations against any attempt to set brier and Nicholas counties, W. Va., for aside the said assignment, more than five other large sums; and that valuable per- years having elapsed since it was made sonal property of the said M. R. H. Garnett before the bill was filed. In reference to went into the hands of said Maria H. Gar- the legacy left her by the will of her nett, as trustee. That the said Mary P. grandfather, she says Mr. Picton resided Garnett never settled any account of her in New Jersey, and by his will left her a administration, nor the said Maria H. legacy in that state, but that no part of Garnett of her trusteeship. It is then it was reduced into possession by the said charged that R. M. T. Hunter, the co-obli- M. R. H. Garnett in his life-time; and she gor with M. R. H. Garnett, has no estate claims that, by the law of New Jersey, the out of which the complainant's claim can said legacy is her separate estate, and be paid. The bill prays for the proper ac- that it was paid over to her long after the counts and settlements, and that the per- death of the said M. R. H. Garnett, by the sonal estate of the said testator may be executors of the will of the said Picton, applied to the payment of his debts; and, and that the said Garnett had no power if insufficient for the purpose, that his real to dispose of it by will. She insists that, estate may be so applied; and for general though she was the administratrix of the relief. estate of M. R. H. Garnett, deceased, with

his will annexed, she had, in fact, nothing | tor, and for the payment of his debt to to do with the affairs of his estate; M. H. complainant evidenced by the bond of the Garnett, his mother, being appointed, by testator. There is no statement or allethe will, trustee of the residuum, for cer- gation in the bill touching the said bond tain purposes in said will specified. That of Stevens to M. R. H. Garnett; and the she has paid to M. H. Garnett, trustee, the respondent is bound, by the settled rule of sum of $50,000 for the real estate of M. R. chancery, to establish the allegations so H. Garnett, and that she has paid, and made in the answer by independent and furnished the means to pay, the debts of satisfactory testimony. There is no evisaid decedent, M. R. H. Garnett, to the dence in the record to sustain the pretenamount of $51,641.07, for which she exhib-sion of the respondent as to the assignment its statement and vouchers. She says and ownership of this bond, except her that she cannot say what became of the answer, and this is, we think, wholly inpersonal estate left by M. R. H. Garnett sufficient for the purpose. 1 Daniels, Ch. after it went into the hands of Mrs. M. H. Pr. 843, note 7, and cases there cited; 2 Garnett. She claims that payments have Story, Eq. Jur. § 1529; 2 Rob. Pr. (Old been made on account of the claim as- Ed.) 330; Paynes v. Coles, 1 Munf. 373; Colserted by complainant, and asks an ac- lege v. Powell, 12 Grat. 372, 381, 386; Lewis count of them; and denies her liability for v. Caperton, 8 Grat. 148; Price v. Thrash, it; and insists that R. M. T. Hunter's es- 30 Grat. 523; Ruth v. Owens, 2 Rand. (Va.) tate shall be exhausted before she can be 507; Beck with v. Butler, 1 Wash. (Va.) 224'; made liable. 4 Minor, Inst. 1193.

To the answer there is a general replication.

In the recent case of Hatcher v. Crews, 78 Va. 460, Judge HINTON said of an attempt made by Mrs. Hatcher to set up a post

In this stage of the cause, on the 2d day of May, 1878, a decree of reference to a mas-nuptial settlement by her answer: "It was ter commissioner of the court was made, di- a post-nuptial settlement, and, under the recting him to "inquire and ascertain all doctrine laid down by this court in the the personal property left by M. R. H. Gar- cases of Blow v. Maynard, 2 Leigh, 30, and nett, at the time of his death, which did or Fink v. Denny, 75 Va. 663, it is presumed should have come to the hands of Mary P. to be voluntary and void; and it not only Garnett, (now Lewis,) his administratrix; rests upon the appellants to show that it what, if any, of said personal property was made for a valuable consideration went into the hands of Maria H. Garnett, moving from Mrs. Hatcher, but the answer trustee under the will of said M. R. H. Gar- to the bill charging it to be voluntary is nett; and to take an account of the admin- not allowed to shift that presumption, nor istration of Mary P. Lewis of the estate of is it held to be evidence for the respondM. R. H. Garnett, deceased." This decree ents, but, on the contrary, the defense set the master commissioner proceeded to exe- up in the answer must be established by cute, and on the 17th of November, 1879, proof." And so we think that the respondreturned his report. Exceptions both by ent Mary P. Lewis has wholly failed to the plaintiff and defendants are filed to show, by proof, that the bond of her fathis report, and the circuit court, proceed- ther to M. R. H. Garnett for $50,000, in ing to pass upon the exceptions_seriatim, | question, was executed in pursuance of any overruled them all, and entered a decree such agreement as that alleged in her anfor the debt asserted in the bill as ascer-swer. tained and reported by the master commissioner.

But it is alleged that the indorsement upon the bond by M. R. H. Garnett, May 19, 1861, assigned it to his wife, the respondent, as her sole and separate property; but there is nothing to show that the bond, so indorsed, was ever delivered to the alleged assignee. On the contrary, there is very strong evidence leading to the conclusion that there was never any completed assignment; for, by his will, made long subsequent to the date of said indorsement upon the bond, M. R. H. Garnett bequeaths as follows: "I give to my wife her father's bond to me for $50,000, with whatever may be due thereon and unpaid at my death." The indorsement upon the bond was made during the war, and it may have been put there under terrorem of confiscation; but, whatever may have been the intent, the fact of delivery of the bond is not shown, and without such delivery there is no completed and valid assignment. White v. Campbell, 80 Va. 180.

The first assignment of error by the appellant is that the court overruled the exception to the commissioner's report that the $50,000 bond of E. A. Stevens was a part of the estate of M. R. H. Garnett, deceased, which came to the hands of Mary P. Garnett (now Lewis) as administratrix c. t. a., and charges her with the same. It is stated by the female respondent, Mary P. Lewis, in her answer filed May 2, 1878, that the bond of her father, E. A. Stevens, payable to M. R. H. Garnett, for $50,000, was, in fact and intent, but a marriage portion, and that it was executed by her father upon an agreement and understanding between the said Stevens and M. R. H. Garnett that it was to be for the sole and separate use of her, the said Mary P. Garnett; and that the said Garnett was to make a settlement of it on her; and that the written assignment of the bond was made in pursuance of said agreement; It is insisted, however, that the possesand that the said bond was delivered to sion of the bond, and its production by reher at the time of such assignment. These spondent, is evidence of delivery; but, howstatements in the answer are purely affirm- ever this may be in ordinary cases, it can ative of new matter, and in no way re- have no such significance in this case. She sponsive to any allegation in the bill, being administratrix, all the choses in acwhich is simply a creditors' bill for an ac- tion of her testator are presumed to have count of the estate of respondent's testa-gone into her possession as the legal recip