of the property, and, in the lifetime of her hus- | duty by the imperative terms of the will, By the will of P, S acquired at once, on the death This was an action of ejectment in the Circuit court of Washington county, brought in January 1869, by John S. Preston and Thomas L. Preston, claiming to be trustees of Mrs. Sarah B. Floyd, against Joseph T. Campbell, to recover a tract of thirty-three acres of land, known as the King's mountain tract. The parties dispensed with a jury, and submitted the whole matter of law and fact to the court. Whereupon the court rendered *a judgment in favor of the plaintiffs for twenty acres of the land. The defendant then excepted, and spread all the evidence upon the record, 397 and obtained a supersedeas to the judgment from a judge of this court. The case is fully stated in the opinion of the court. J. W. Johnston and J. A. Campbell, for the appellant. Watts, for the appellees. BOULDIN, J. delivered the opinion of the court: This is an appeal from a judgment of the Circuit court of Washington county in an action of ejectment brought in that court by the appellees against the appellant, in January 1869. The case was substantially as follows: Mrs. Sarah B. Preston, of Washington county, died in July 1846, having first made her last will, which was duly admitted to probate by the County court of Washington county. By a paragraph of the third clause of the will she devised to her three sons, Wm. C., John S. and Thomas L. Preston (who were constituted her executors), certain real property therein mentioned, in trust for her daughter, Mrs. Sally B. Floyd, with instructions to them to permit her "said daughter to occupy and enjoy said property should she prefer doing so;" and "should she survive her husband, they shall convey the said property in fee simple to her and her heirs." William C. Preston and John S. Preston were both non-residents of the State, and neither of them having at any time qualified as executor or acted as trustee; Thomas L. Preston alone qualified and acted as such. At his mother's death, as was his plain Soon after the appointment of William B. Byars, as trustee of Mrs. Sally B. Floyd Byars as trustee as aforesaid, the said and Mrs. Floyd, filed their bill in the Circuit court of Washington county, on the Thomas L. Preston, praying a settlement chancery side thereof, against the said of his account as trustee as aforesaid; to which bill said Preston filed an answer, under oath, in which he admits that he had been removed as trustee by order of the County court of Washington county, and said William B. Byars appointed in his place. Byars, trustee as aforesaid, and Mrs. Floyd, *Before that time, however to wit, on the - - day of October 1863, John S. Preston, who had individually made an exchange of property with his sister, Mrs. Floyd, and her trustee, retaining a lien on the property passed to her, which was the same sold to Hendricks, executed to Hendricks a deed of release, and endorsed thereon a receipt in the following terms: "Richmond, 11 Jan'y 1864. Received of Wm. Byars, trustee of Mrs. Sally B. Floyd, on account of this deed, six thousand two and thirty-two dollars fifty cents ($6,232.50), in full. John S. Preston." This deed, with the receipt aforesaid en dorsed thereon, was duly recorded in Wash- the legal estate, all these rights passed to ington County court. Hendricks held the property thus acquired until October 1868, when by deed of that date, he conveyed it to the appellant Joseph T. Campbell, trustee; and on the 11th of January 1869, John S. Preston and Thomas L. Preston, claiming to be trustees of Mrs. Sally B. Floyd, instituted an action of ejectment against Campbell, seeking to set up a legal title in themselves, and to recover possession of the land. The defendant Campbell demurred generally to the declaration, and pleaded "not guilty." The demurrer was overruled, and the parties waiving a trial by jury, submitted the case upon the law and the facts to the judgment of the court; whereupon judgment was entered for the plaintiff: and the case comes to this court on an appeal from that judgment, all the facts of the case having been spread on the record. and were vested in the said A. L. Hendricks, by the deed of Mrs. Floyd to him of the 2d of December 1863; that being the date of the re-execution aforesaid; and that by the deed of the 15th of October 1868, from A. L. Hendricks and wife to Joseph T. Campbell, trustee, all the interest and estate aforesaid was vested in the said Campbell, who stood thereafter in all respects in the shoes of the said Sarah B. Floyd, and could no more be ejected from said premises at the suit of said trustees-conceding them to be suchthan Mrs. Floyd herself could have been, had the suit been instituted against her, before her conveyance to Hendricks. 401 The court is, therefore, of opinion, that the judgment of the Circuit court is erroneous and should be reversed; and that judgment should be now entered for the appellant, the defendant in the court below. Judgment reversed. Without deciding whether the appellee, John S. Preston, is not estopped by deed and by matter in pais, and Thomas L. Preston by matter of record, from claiming at this time to be trustees of Mrs. Sally B. 402 Floyd; and without deciding whether, conceding the said John S. Preston and Thomas L. Preston, against all the facts and cir cumstances of the case, and against their | Scaling-Agreement between the Parties—Conclusive. solemn acts and admissions to the con400 trary, to be still the trustees of *Mrs. Floyd, the court should not have presumed, on well established principles of law, that they had discharged their duty by making to Mrs. Floyd the conveyance in fee simple, to which she had been clearly entitled for nearly six years prior to the institution of this suit; questions which have been ably and earnestly argued by counsel on both sides-waiving the consideration of these questions as unnecessary to be decided in this case-the court is of -Within six months after the act for scaling debts was passed, S recovered a judgment by default against P. Afterwards, P being about to move the court to scale the debt, the parties, with the assistance of their counsel, agreed that the debts should be scaled as of the value at the date of the bond, which was one for three, and this is entered of record upon the judgment. Afterwards. P files his bill to have the debt scaled as of the date the bond fell due. Held the agreement between the parties is conclusive, and the debt is not to be further scaled. This was a bill for an injunction to a judgment filed in the Circuit court of Patrick county, in December 1868, by Jackson Penn against Madison T. Smith. The judgment was by default in September 1866, and was 1863, and payable on the 5th of January upon a bond executed on the 5th of January 1864. The Circuit court enjoined the judgment, and rendered a decree for a balance which Penn, according to the views of the court, had overpaid upon it. The case is stated in the opinion of the court. Lybrook, for the appellant. opinion, that under the provisions of the will of Mrs. Sarah B. Preston, her daughter Mrs. Floyd acquired at once, on her mother's death, an equitable estate in fee simple in all the property devised to her use, with the absolute right to hold and occupy the same -to the use and possession thereof as her separate estate-against her said trustees and all other persons; that at the death of her husband, John B. Floyd, she became entitled, in addition to the use and possession of said property, to an absolute conveyance thereof to herself in fee simple, which it was a breach of trust in her said trustees to withhold: and so far from said trustees having the right to sue for said land and eject her therefrom, that she had the the court. right from the moment of her husband's death to demand from them, uncondition-trustee for the children of Adeline M. Smith, In September 1866, Madison T. Smith, as ally, a conveyance of said property to her obtained a judgment by default in the Cirin fee simple; which right she could, at cuit court of Patrick county, against Jackany moment, have enforced against them son Penn and G. M. Hylton for $4,210, with The court is further of opinion, that hav-interest thereon from the 5th of January ing thus the right to possess, and the actual cuted for the purchase of slaves on the 5th 1864, until paid, and costs, on a bond exepossession of the property aforesaid, and day of January 1863. holding also the equitable estate in fee with the right to an immediate conveyance of by suit. BOULDIN, J. delivered the opinion of *He was related to some of the parties. 403 *After this judgment was obtained, that the parties themselves, with the aid of Penn employed counsel to proceed by counsel, have carefully and deliberately motion to have this judgment scaled. It adjusted these differences, and made a setwill be observed, however, that the judg- tlement deemed just and reasonable by ment had been rendered more than six themselves at the time, and deemed just months after the passage of the act of the and reasonable now by this court; and even General Assembly for the adjustment of Con- had they fallen into a mistake of law, it federate liabilities, known as the scaling was not such a mistake as equity should act, and it was not then known-nor has it have relieved against. The questions inyet been directly decided-whether any volved in the adjustment were at the time, relief could be afforded to a party who, in to say the least of them, doubtful questions; the absence of fraud, accident or surprise, and it is well settled that "if the question or other equity, had allowed a judgment to be a doubtful one, and the doubtfulness of be rendered against him without availing that question is made the basis of an arhimself of the benefit of the statute. Un- rangement or agreement, the court will give der these circumstances, the counsel for the no relief." Adams' Eq., top. p. 444, marg. defendants prepared a notice for a motion 189. to scale said judgment, which he showed to the counsel for the plaintiff; and thereupon, without service of said notice, and to avoid litigation, it was agreed between said counsel, by the authority and with the consent and approbation of both parties, that the question of difference between them should be adjusted by scaling the judgment as of the date of the contract. The calculation 405 was made, and accurately made, by the counsel of the defendant, Penn, in the presence of the plaintiff and his counsel. The amount of the judgment was reduced We are of opinion, therefore, that the decree of the Circuit court is erroneous, and that the same should be reversed, the injunction dissolved, and the bill dismissed. Decree reversed. *Pepper v. Barnett. June Term, 1872, Wytheville. to the sum of $1,403.33 of principal, being Comparison of Hands-Competency of Witness.+-M, a just one-third of the nominal debt; and by consent of parties, it was entered of record that the judgment should be discharged by the payment of that sum, with interest from the 5th of January 1864, until paid, and the costs. This was deemed at the time a final settlement of the question; but afterwards, to wit: on the 14th day of December 1868, when it was supposed that a new and different construction of the scaling act from that which had previously prevailed had been established, the said Penn filed his bill in the Circuit court of Patrick county, on the chancery side thereof, alleging that there had been a mistake of law in the adjustment aforesaid, by scaling the judgment at the date of the contract, instead of 404 the *maturity thereof, and praying an injunction to the judgment, and that the same be again scaled, &c., &c. The injunction was awarded, the cause regularly matured and heard, and the debt again scaled to $210, instead of $1,403.33%; and the defendant having already paid more than $210, the Circuit court rendered decree in his favor for $26.50, the excess of payments, with interest and costs. From that decree Smith appealed to this court. a The only ground of equity alleged in the bill for disturbing the adjustment solemnly entered into between the parties, aided by counsel on both sides, is that there was a mistake of law in scaling the debt as of the date of the contract, instead of the maturity thereof. Whether this be a mistake of law or not, may perhaps be considered a question of some doubt; but as that question does not necessarily arise in this case, no opinion thereon will be now expressed. The differences between the parties involved other questions; and it is enough to say, witness called to prove the signature of B, a party to an instrument, said that he was not familiar with the handwriting of B, never having seen her write but once, and then only to make her signature; that he would not be able, from his knowledge of her handwriting, to distinguish it from that of others; but that he was of opinion, from having compared the present signature with the one he had seen her make, it was her handwriting. Mwas a competent witness, and the evidence was admissible. This was an action of ejectment in the Circuit court of Montgomery county, brought in August 1856, by John Pepper against George W. Barnett. On the trial *He had been counsel in the cause. +Comparison of Hands-Competency of Witness.The court in Flowers v. Fletcher, 40 W. Va. 103, 20 S. E. Rep. 871, citing the principal case and others said: "The law is that a witness who has any personal knowledge of a signature in controversy, however slight, has the right to give his opinion, and the weight of that opinion is a question for the jury, and not for the court. A witness who has seen a person write but once, and then only his abbreviated signature, may testify regarding the same; or if he has seen a signature admitted by the owner to be genuine." The court then continues by saying, "But he must have some knowledge, and the mere fact that he has received letters purporting to be from the person whose signature is in controversy is not suffcient, unless there has been some admission or acquiescence equivalent to an acknowledgment on the part of the supposed writer, other than the letters themselves, that said letters are genuine and in the handwriting of the person from whom they purport to come." See also, Hanriot v. Sherwood, 82 Va. 14, 17, where the principal case is cited upon the said proposition. The point upon proper knowledge, and how it has been acquired. One mode of acquiring this knowledge, and certainly one of the best, is having seen the party write. Whether he has seen him write once or many times, goes rather to the degree and extent of his knowledge than the source from which it is derived, and does not affect the question of his competency, but only the weight to be given to his evidence, which is a question for the jury. of the cause, after the plaintiff had intro- | competency is another. duced his evidence, the defendant offered which courts have differed in opinion is in evidence an agreement in writing, pur- upon the source from which the knowledge porting to be between Ann R. Barnett, ex- of the handwriting is derived, rather than ecutrix of C. L. Barnett, deceased, and as to the degree or extent of it. All the George W. Barnett; and to prove the sig- authorities agree that a witness is compenature of the paper by Ann R. Barnett, tent to testify to the genuineness of a conintroduced a witness, Montague, who said, troverted signature if he has the proper "that he was not familiar with the hand-knowledge of the party's handwriting. The writing of the said Ann R. Barnett, never difficulty has been in determining what is having seen her write but once, and then only to make her signature; that he would not be able, from his knowledge of her handwriting, to distinguish it from that of others; but that he was of opinion, from having compared the present signature with the one he had seen her make, it was in her handwriting." To the introduction of the evidence the plaintiff objected; but the court overruled the objection, and admitted the evidence; and the plaintiff excepted. 406 *The jury found a verdict for the defendant, and the court entered a judgment accordingly. And thereupon the plaintiff obtained a supersedeas to the District court of Appeals, where the judgment was affirmed; and he then applied to this court for a supersedeas; which was allowed. Crockett and Blair, for the appellant. J. W. Johnston and Wade, for the appellee. CHRISTIAN, J. This case presents a single question, and one easy of solution upon well settled principles, established by repeated decisions of this court, as well as by all the best writers on the law of evidence. It has been well settled in numerous cases, and is laid down as settled law in all the standard works upon evidence, that a witness who has seen the party, whose signature is controverted, write but once, and that only his signature, is competent to testify, although he may have to compare the signature which he knows to be genuine with the one in controversy, in order to refresh and strengthen his recollection. The case (cited by the counsel for the appellee) Burr v. Harper, 3 Eng. C. L. R. 168, is one exactly in point, and is strikingly like the one under consideration. In that case the witness, whose competency was questioned, stated, when called to prove the signature of Harper, that he once saw him When it is laid down as a rule that com- sign his name to a paper, which he then had parison of handwriting is not admissible, it in his possession; that the fact made so must be remembered that "by comparison slight an impression upon his mind that, is now meant the juxta positione of two judging from that single occurrence, he was writings, in order by such comparison to not able to say whether the handwriting to ascertain whether both were written by the the agreement was the defendant's or same person. 2 Starkie's Ev. 654, and cases 408 *not; that he would not venture, upon there cited. But where the witness has seen the mere inspection of the paper, to the party write, and is able to swear to his form a belief on the subject; but that, by belief, that the writing in question is the comparing the signature of the agreement, hand of that person, such evidence is clearly to which he was required to speak, with admissible as legal proof of handwriting, that which was subscribed to the paper then and is considered as distinct from evidence in his possession, he was able to swear that by comparison. Greenl. on Ev. 88 576-577; he believed it to be the defendant's writing. Redford's adm'r v. Peggy, 6 Rand. 316. In It was held in that case, and its authority the case before us, the witness, Montague has never been questioned, that the witness (who was called to prove the signature of was competent to prove the handwriting. Mrs. Barnett to the title bond sought to be The court in that case says: "The mere given in evidence), stated that he had fact of having seen a man once write his never seen her write but once, and then name may have made a very faint impresonly to make her signature; that he would sion upon the witness' mind; but some imnot be able from his knowledge of her hand-pression, however slight in degree, it will writing to distinguish it from that of make, and surely as the standard exists, others; but that he was of opinion from having compared the present signature with the one he had seen her make, and from other circumstances not disclosed by the witness, he was of opinion it was in her handwriting." The question is, was this evidence admissible? However 407 *little or however much credit may be given to it, is not the question. It may be entitled to very little weight; but the weight of the evidence is one thing, its and the witness possesses the genuine paper, he may recur to it to revive his memory upon the subject. Here a basis is laid in the fact of his having seen the defendant sign his name once. But his memory is defective. He then recurs to a paper which he knows to be an authentic writing. He uses it to retouch and strengthen his recollection, and not merely for the purpose of comparison. The evidence, therefore, is admissible." In a case recently decided by the Supreme court of the United States, Mr. Justice Davis, speaking for the whole court, says: "It has been settled everywhere that if the witness has seen the party (whose signature is controverted) write his name but once, he is competent to testify." Rogers v. Ritter, 12 Wall. U. S. R. 322. I am of opinion that there is no error in the judgment of the Circuit court, and that the same ought to be affirmed. The other judges concurred in the opinion of Christian, J. Judgment affirmed. 409 *Fugate v. Honakers' Ex'ors & als. June Term, 1872, Wytheville. Absent, STAPLES, J.* Executor Not Liable for Investments in Confederate Bonds.-Testator died in 1863, and by his will directs his executors to sell his property, and to hold the money in their hands or to loan it out as they think best, and to pay the children as they come of age. The executors, with the concurrence of the adult children, sell for Confederate money, and they pay over to all the legatees who are of age. Two, however, are infants having no guard. ians, and the executors, under an order of the court, invest $5,000 in Confederate bonds, which are lost. The executors are not liable for the loss. ANDERSON, J. delivered the opinion of the court. By This is an appeal from an interlocutory decree of the Circuit court of Wythe county. The only error assigned in the decree is that it allows the executors a credit for $5,000, which was invested in Confederate securities, and is wholly lost to the estate. Henry Honaker, the testator of the appellees, departed this life in January 1863. the ninth clause of his will, he directs his executors to dispose of all his personal property not otherwise disposed of by his will, other than the slaves, to the best advantage, either publicly or privately, as they may choose; and his slaves he authorizes to be sold to masters of their own choosing, and at prices below their appraised value, if necessary to carry out his humane purpose of allowing them to select their masters, &c. The will was admitted to probate on the 5th of February 1863, and on the 19th of that month the executors made sale of the property. It had been appraised with reference to Confederate values, and the purchasers were privileged to pay in Confederate money. That constituted the only circulating medium; and it may well be presumed, from the facts in the record, was the currency which it was contemplated by the testator would be received by his executors for the property which he directed them to sell; and upon no other conditions could the sale have been effected, and the purposes and wishes of the testator, as indicated by his will, carried out. The insecurity of the property, in the disturbed *state of the country, seemed also to impress upon the minds of the executors the importance of an early sale; and it was the unanimous opinion and wish of the adult legatees that the sale should be made for Confederate money. The proceeds of the sale, together with cash on hand, of which $2,301 was Confederate money, and $609.40 received on debts due the estate, amounted to $32,535.13. This was a suit in equity in the Circuit court of Pulaski county, brought in September 1867, by Letitia Fugate against Henry Honakers' executors, devisees and 411 legatees, to surcharge and falsify the account of the executors' administration settled in the Court of Probate, and if that was not done, that the devisees and legatees might be required to contribute to make her share as legatee equal to the others. The only objection made to the account of the executors was to an item of $5,000, which they had invested in Confederate bonds, under an order of the judge of the Circuit court of Pulaski county. The Circuit court made an interlocutory decree, holding the executors justified in making the investment, and directing a commissioner to take an account of any assets of the testator, which had come to the hands of the executors since their last settlement, and also an account between the devisees and legatees; and thereupon the plaintiff applied to this court for an appeal from that decree; which was allowed. The only error alleged in *the petition is as to the allowance to the executors of the said sum of five thousand dollars; and this is the only question decided by this court. The case is sufficiently stated in the opinion of the court. 410 Terry and Pierce, for the appellants. *He had been counsel in the cause. sum On the 2d of December 1836, the executors made a settlement before a commissioner of the County court of Pulaski, showing that they had disbursed of that $23,855.38, leaving a balance in their hands of $8,679.75. In November 1864, less than a year after the first settlement, they made another before the same commissioner, in which they receive a credit for $5,000, invested in Confederate bonds, under an order of the judge of the Circuit court of Pulaski." This credit is allowed by the interlocutory decree aforesaid, and is the ground of the complaint and appeal. The executors, in their answer, say "they have fully and fairly, so far as they know or believe, accounted for and disbursed to parties legally entitled to receive it, all the funds which have come to their hands, except the sum of $5,000, which is about the amount the infant legatees were entitled to. There being no person to whom respondents could safely pay their funds, they applied to the judge of the Circuit court of Pulaski |