12

14th, 1868, and according to which the said | involved that question, when the court rencounsel claimed that a decree should be ren- dered the said decree against him. Being dered, the accounts were stated in the same dissatisfied with it, he at once appealed way in regard to the distribution of the from it; and in February 1855, the special said estate. On the 13th of March 1869, the court of Appeals reversed it. John Burton cause came on to be further heard on would doubtless have pursued the same the papers formerly read, and the said course if he had not determined to acquiesce report of Commissioner *Giles, dated in the decree. There was the same reason the 22d of August, 1868, and the ex- for appealing from it at once, as there ceptions thereto, &c., when the court over- would have been if the question decided had ruled all of the said exceptions, approved been the only question involved in the case. and confirmed the said report, and rendered John Burton not only acquiesced in the a decree accordingly. From that decree the decision by failing to appeal from it, but executors of James Brown applied for and he also acquiesced in it, as we have seen, obtained an appeal on or about the 23d of by receiving money under it. He received June 1869; after which, to wit: on or about his distributive portion of the money which the 10th of February 1870, the defendant, was distributed in pursuance of the decree, John Burton, applied for the appeal obtained by James E. Heath, executor of Robert by him as aforesaid. Burton, the younger. In other words, he received a portion of the estate of Robert Burton the younger, under the will of his mother, Anna P. Brown; and he now claims the whole of that estate against the said will. This is claiming under and against the same will, which in law is inadmissible. When, therefore, he claimed and received money under the will, he concluded himself from afterwards claiming against it. a general rule, a decree or order made by consent of counsel, cannot be the subject of appeal. 3 Daniel's Ch. Pl. and Pr. 1602,

14

As

Now whether the question in regard to the true construction of the will of Robert Burton the younger, was correctly decided or not by the Circuit court, in the said decree of the 28th of March 1848, (upon which question we express no opinion), we think it is now too late, and was too late when the appeal was applied for by John Burton as aforesaid, to object, for the first time, to the correctness of that decision. We think his right to make such an objection has been lost by acquiescence, express or implied, by lapse of time, and (if not lost 1st Am. Ed.; Atkinson v. Marks, before) by his failure to make the objection *1 Cow. R., 691, 709. In that case it in this court when the appeal from the was held that there could be no appeal decree of the 1st of March 1859 was heard from a decree, not only when it was by in 1864. The issue upon this question was, consent, but also if contested and the party as we have seen, very distinctly presented acted under it; as where there is a decree by the pleadings in the cause; the parties for an account, settling principles and inseem to have desired to have it speedily de- structing the master accordingly, and the cided, and it was accordingly the first liti- party, though he considers it erroneous, gated question which was decided in the pursues the reference instead of taking an case. It was separate from the other appeal at once. The latter branch of the numerous questions involved in the case, rule, however, as laid down in the case in although in the consequences of its decision 1 Cowen, appears not to be the English it was connected with most of them. We rule, Morgan v. Morgan, 7 Eng. Law and find, therefore, that on the 28th of March Eq., 216, 220, as it certainly is not the rule 1848, without waiting for the maturity of in this State. In this case, as we have the cause for a full and general hearing, it seen, John Burton not only pursued the was brought on for hearing as to this ques-reference, but accepted money under the tion only, and upon such of the papers and decree, did not except to any of the reports pleadings only as had relation to it, and, of the commissioner made in pursuance of after full and able argument, an opinion the decree, claimed a decree according to and decree were pronounced by the court special statements made out by his counsel, upon the question. If John Burton had upon the principles settled by the decree not intended to acquiesce in that decision, of the 28th of March 1848, and made no he would at once have appealed from objection in any way to that decree for 22 13 it. *He had the strongest motive for years after it was rendered, or until his doing so, and no motive whatever for appeal was applied for on the 10th of Febdelay. His interest and desire were for a ruary 1870; and that too, when the cause speedy termination of the case, so far as he came on for general and final hearing, and was concerned. An appeal from that deci- there was a decree therein on the 1st of sion would not have delayed the case in March 1859, from which decree there was other respects, at least if it could not be an appeal by the executors and devisecs of brought to a conclusion in other respects James Brown and of Anna P. Brown, and before the termination of the appeal. That others, on which appeal the said decree was course was pursued by James Scott, executor affirmed by this court on the 26th of April of John Lesslie, in regard to a decree ren- 1864. dered against him in the case on the 23d day of March 1849. On that day, the cause came on for hearing only as to the question which affected Lesslie's executor, and upon such only of the papers and pleadings as

If John Burton wished to object to the correctness of the decree of the 28th of March 1848, and had not previously given up for lost his right to do so by his acquiescence as aforesaid, he ought to have

15

Whatever may be the rule of equity practice in England, New York, or elsewhere, we think that, according to our law and practice, the decree of this court of the 26th of April 1864 operated as an affirmance of all the prior decrees rendered in the cause which had not been previously reversed, including the decree of the 28th of March 1848, even supposing that decree not to have become irreversible by acquiescence as aforesaid.

made such objection, as he might have done, | appellant, but also all errors in those proin the Circuit court, when the cause was ceedings against the appellee. That rule there heard on the 1st of March 1859; or, at is thus laid down in 2 Rob. Pr., p. 434; all events, in this court, when the appeal "The whole proceedings prior to the decree was here heard on the 26th of April 1864. or order being brought up, if error against That appeal was taken in 1859. John Bur- the appellee is perceived in the record, the ton was a party to it as one of the appellees. appellate court will reverse the proceedings, He was represented by able counsel, who either in whole or in part, in like manner were present in this court when the as it would have done if the appellee had appeal came on to be heard, and brought the same before it by appeal;" and argued the case in behalf of their in support of the rule, the author cites Day clients. Not having made the objection on v. Murdock, 1 Munf., 460. In that case it either of those two occasions, his failure to was held by this court, in October 1810, do so would, of itself, have precluded him that upon an appeal from a decree in chanfrom the right of appealing afterwards from cery, an error to the injury of the appellee the decree of the 28th of March 1848, if his ought to be corrected, although he did not previous conduct or neglect had not already appeal. This seems to be the first express precluded him from such right. reported judicial sanction which was given to the rule; but it has been acted upon ever since; and the same author cites a case from the next volume of Munford's reports, in which it was acted upon, viz: Defarges v. Lipscomb, 2 Munf., 451. Indeed, as early as the 2d of October 1811, this court established the following general rule: "It is the opinion of this court, founded as well on a full consideration of the law as on various decisions which have heretofore been had, that in future, where a judgment What was said by the Lord Chancellor or decree is reversed, neither in the whole (Lord St. Leonards) and Lord Brougham, | nor in part, on the ground of error against in the case of Birch v. Joy, referred to by the counsel of John Burton, 3 House of Lords cases, 578, to the effect that the part of a decree unappealed from remains as before, and is not rendered final by the decision of the appellate court on the part which is the subject of the appeal, is therefore, not true and not applicable, at least as a general rule, in this State "As in the case of an appeal from a final decree, not only any error in that, but any error in the former proceedings, ought to be corrected, so upon an appeal from an interlocutory order, not only error in that order, but errors in the former proceedings should be corrected. In either case, the effect of the appeal is to bring up the whole proceedings prior to the decree or order from which the appeal is taken." Thus the principle is laid down in 2 Rob. Pr., old ed., p. 433; and in support of it, the following cases are cited: Lomax V. Picot, 2 Rand., 247; Jacques, &c.. V. Methodist Episcopal Church, 17 John. R., 548; Atkinson V. Marks, 1 Cow. R., 691; Teal v. Woodworth, 3 Page, R. 470. This principle prevails

16

in this State. Huston's adm'r v. Cantril, *&c., 11 Leigh, 136. In that case, Judge Stanard, in considering two questions, the first of which was, "Can the court, on this appeal from the dismission of the supplemental bill, examine the previous decrees, and correct them, if they be erroneous, "said: "The cases referred to in 2 Rob. Pr., 433, leave no doubt that the first question must be answered in the affirmative.

There is another rule of equity practice in this State, which authorizes the appellate court to correct, not only all errors in the proceedings of the court below against the

the appellant or plaintiff, in any appeal, writ of error or supersedeas; yet if error is perceived against the appellee

17

or defendant, the court will consider the *whole record as before them, and will reverse the proceedings, either in whole or in part, in the same manner as they would do were the appellee or defendant also to bring the same before them, either by appeal, writ of error or supersedeas; unless such error be waived by the appellee or defendant, which waiver shall be considered a release of all errors as to him." This rule, in substance, or one like it, has been in force ever since, and the existing rule on the subject is the 9th of the rules of the court, as published in the 20th volume of Grattan's Reports. This court recently had occasion, in an opinion delivered by Judge Christian, in the case of Walker's ex'or, &c., v. Page, &c., 21 Gratt., 636, to express its views in regard to the subject of this rule, which opinion embraces all that is necessary to be said upon the subject.

Then, whether John Burton had a right or not to ask for a correction of the error in the decree of the 28th of March 1848, of which he now complains, when the case was before the appellate court, on the appeal of Lesslie's ex'or from the decree of the 23d of March 1849, or on the appeal of Alexander S. Brown and others from the decree of the 19th of November 1853, appointing a receiver (those appeals being from special decrees upon particular questions arising in the case), upon which question we deem it unnecessary now to express an opinion; there can be no doubt, but that he could have asked for such correction, when the case was before this court on the appeal from

18

The decree was as follows: The court is of opinion, for reasons stated in writing, and filed with the record, that the second of the above named appeals was improvidently allowed from the said decree of the 28th of March 1848, and therefore it is decreed and ordered that the same be dismissed; and that the appellant pay to the appellees in that appeal, their costs by them about their defence in that behalf expended. And the court, for reasons stated and filed as aforesaid, is further of opinion, that there is no error in the said decree of the 13th of March 1869, and that the same ought to be affirmed. But it being suggested to the court that the descendants of James Brown, or some of them, may have received money arising from the proceeds of sales of land in Kentucky embraced in the deed of 28th of October 1824, to George Clarke and others, in the proceedings mentioned; and that, in that event, no portion of the proceeds of the trust estate in Virginia, embraced in the deed of the same date to Charles Copland and others, also in the

the decree of the 1st of March 1859, unless he had previously abandoned his right to do so, or lost or given it up by acquiescence as aforesaid. And unless he had so abandoned, lost or given up such right, or intended to waive it, he ought to have exercised it on that occasion; and his failure to do so was equivalent to a waiver of such right, and a release of all error as to him. Having then an opportunity to exercise the right when the whole case was already before the appellate court, *there can be no reason in permitting him to forego that opportunity, and afterwards to take a new and independent appeal, for the purpose of obtaining the same relief he might have obtained on the former appeal. To permit him to do so would not be a benefit to him, but rather an injury, while it would subject his adversaries to unnecessary expense and inconvenience. There is wisdom therefore in our rule of practice, which authorizes the appellate court to correct errors against the appellee as well as against the appellant, and in that construction of the rule which requires the appellee to in-proceedings mentioned, should be paid to voke the exercise of such authority, unless he means to waive all error as to him.

We are therefore of opinion that the appellant, John Burton, had no right to obtain this appeal upon the ground relied on in the second assignment of error, that "the Circuit court should have held under the will of Robert Burton the younger, that all his estate other than what was given for life to the mother of him and your petitioner was, after her decease, to pass to your petitioner in absolute property."

In regard to the third assignment of error, it has already been disposed of in deciding the other appeal. In regard to the fourth and last, it does not arise, under the view we have taken of the case. As to the suggestion made in the latter part of that assignment of error, that there should be a "provision in respect to descendants of James Brown who shall have received money arising from the proceeds of lands embraced in the deed of October 28, 1824, to George Clark and others;" that "under the distribution in Virginia of the estate of Robert Burton the elder, no portion should be paid to any of those descendants until there shall first be deducted what shall have been paid to them respectively in Kentucky;" that is a subject of which the court below will have control when the cause goes back to it, and which properly belongs to that court. Out of abundant *caution, if desired, the affirmance may be without prejudice to the right of the said court to make such decree in that respect as may seem to it to be proper.

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any such descendants as may have so received money as aforesaid, until they shall have duly accounted for the money so received, in order that there may be a just and equitable apportionment of all the trust fund which may be realized under either of the said deeds among the parties entitled

to the benefit thereof, according to 20 their respective rights; the court *is of opinion that the court below may make any orders and decrees which may seem to it proper in that respect, but that out of abundant caution the said affirmance should be expressed to be without prejudice to the right of that court to make such orders and decrees. Therefore, it is further decreed and ordered that the said decree of the 13th March 1869, be affirmed, without lants in the first of the above named prejudice as aforesaid, and that the appeltor, James Brown, deceased, pay to the appeals, do, out of the estate of their testaappellees in that appeal, their costs by them about their defence in that behalf expended. Which is ordered to be certified to the Chan cery court of the city of Richmond.

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1.

Appeal of John Burton dismissed.
The decree affirmed.

*Thorndike & als. v. Reynolds & als.

March Term, 1872, Richmond.

Wills-Powers-Validity."-A husband who by his will gives property, real and personal, to his wife, absolutely, if she survives him, may by his will authorize her to make a will in his lifetime disposing of said property. And the wife having made a will in the lifetime of her husband, disposing of the property, and afterwards surviving her husband, and dying without re-executing or revoking her will, the same is valid to pass the property to her devisees and legatees.

Upon the whole, we are of opinion, that in the case of Brown's ex'ors, &c. v. Burton's adm'r, &c., there is no error in the decree appealed from, and that it be affirmed, without prejudice as aforesaid, and that in the other case, that of Burton v. Brown, &c., the appeal be dismissed as having been Nuckolls, 85 Va. 339, 12 S. E. Rep. 160; Phillips v. improvidently allowed.

*Wills Construction-Powers. See M'Camant V.

Ferguson, 85 Va. 516. 8 S. E. Rep. 241.

4. Same-Revocation.-The will of the wife was not revoked by the death of the husband, leaving the 23 wife surviving him, and therefore it was not necessary for her to re-execute the will after his

In the thirteenth clause he says: "In the An issue of devisavit vel non was directed, event that my beloved wife Ann should and the jury returned a special verdict, the 24 not survive me, I desire *and intend important facts of which are as follows: that the property in my will given and William H. Hubbard, a native of the State devised to her shall be disposed of according of Connecticut, came to the city of Rich- to what I believe to be her wishes." And mond in 1809, where he engaged in the he then proceeds to give to James H. Gardmercantile business, and amassed a large ner, in the event that Mrs. Hubbard does estate. He married, and for forty years he not survive him, the house and lot, &c., and his wife lived together in Richmond; | which he had given to her by his will, and