not be so construed as to interfere with petition with a view to show that the rethe powers now exercised by courts of quired conditions existed in regard to the chancery over the subject." Acts of investment they asked leave to make. But Assembly 1862 and 1863, p. 81. the record shows that none of these conditions in fact existed in the case. On the 18th of June 1863, Thomas and B. B. Campbell presented a petition to Judge Thompson, of the Eleventh Judicial Circuit (not embracing the county of Highland), praying for an order permitting them to invest the assets in their hands as executors of J. B. Campbell, in accordance with the provisions of the said act of March 5th, 1863. In their petition they referred to this suit; stated that the object of it was to ascertain what amount of assets proper went into their hands, and who was properly entitled to the same; that there had been no decision of the cause; that one of the executors of Alcinda C. Campbell was dead and the other lived out of the country, &c.; and that the petitioners had a large amount of assets in their hands as executors, and were so situated that if it were ascertained what was properly due from them, there was no person to whom they could safely pay any part of it. This petition was sworn to by B. B. Campbell, one of the petitioners, and on the same day Judge Thompson, in vacation, by an endorsement on the petition, granted leave to the petitioners to make the investment accordingly. Under the act of assembly, petition and endorsement aforesaid, the investment of $37,000 in Confederate bonds, referred to in the appellants' third exception, is claimed to have been made by them; and the question is, whether they were entitled to credit for the same, as they insisted, against such distributee or distributees as had not received his or her distributive shares; 684 in other *words, against the representatives of the widow of James B. Campbell? At the time the investment was made Confederate money was greatly depreciated in value below its nominal amount, and property of almost every kind was sold at greatly inflated prices. The manifest object of the executors of James B. Campbell and their brothers was to relieve themselves of the heavy debt they owed his widow or her representatives, by preparing to pay the same in Confederate notes or bonds at par. The act expressly provided that wherever a fiduciary had in his hands moneys received in the due execution of his trust, which from the nature of his trust, or any whatever, he was unable to pay over to the parties entitled thereto, it should be lawful for him to apply by motion or petition to any judge, &c. The money was required to be in hand, and to have been received in the due exercise of his trust, and he, for some cause, must be unable to pay it over to the parties entitled. These three conditions must have concurred to give a judge in vacation lawful power, on an ex parte motion or petition of a fiduciary, to grant him leave to make an investment of the trust fund. Accordingly the petitioners in this case framed their cause In the first place they said, at least by strong and plain implication, that the controversy involved in the suit brought against them by the executors of Alcinda C. Campbell had not been decided; whereas that controversy had been decided by this court in 1858, nearly five years before the petition was presented. That decision was that the notes and bonds in controversy were part of their testator's estate; and 685 his widow's representatives *became thenceforward clearly entitled to a distributive share of that estate, including the notes and bonds as part thereof. They had then had about six years since the death of their testator for the collection of his assets, and ought then to have had a large fund in hand for distribution. It was their duty to have proceeded with due diligence after that decree to collect the assets of the estate, including the notes and bonds, which still remained outstanding, pay off the remaining debts of the estate, if any, and distribute the surplus among the parties entitled thereto, and at all events pay the distributive portion of the widow. Had they done so, they probably might, before the war commenced, have settled up the estate and paid the widow's portion of it. Instead of that, although her husband died twenty years ago, leaving a personal estate worth from fifty to a hundred thousand dollars, to one-half of which she was entitled, she and her representatives have, to this day, received nothing but the few articles she carried with her when she went away from his house, after his death, and a small sum of money paid her by the executors about that time. The only step which they seem to have ever taken towards a settlement of her distributive share of the estate was the investment which they made in Confederate bonds for that purpose in 1863-'4. In the second place, they said in their petition that they had a large amount of assets in their hands as executors, meaning, of course, moneys received in the due execution of their trust, according to the language of the act. Whereas they had no assets, or at least no moneys, in their hands as executors. They had divided the notes and bonds among themselves and their brothers a short time after their testator's death. They thus converted the subject to their own use, and became debtors to the estate on that account. The money invested in Confederate bonds, or nearly 686 all of it, was raised after the order for investment, and by contributions made by the brothers among themselves for the purpose; and they generally derived the sums they contributed, or the greater part thereof, from the sale of real estate of course at the inflated Confederate prices of the time. For the value of the notes and bonds alleged to have been assigned by the testator to his brothers, In the third place, they said they were so situated that if it were ascertained what was properly due from them, there was no person to whom they could safely pay any part of it. They could certainly have paid it to the representatives of the widow before the war, if not to their counsel during the war. Why did they not raise the money by contributions among themselves and pay it before the war, when money was good, instead of raising it in the same way and investing it in Confederate bonds during the war, when money was very bad? Certainly Judge Thompson would not have made the order he did if he had known the facts. And the executors of J. B. Campbell not having informed him of the facts, as it was their duty to have done, they can derive no benefit from the order, and the same is null and void as to the representatives of the widow. It does not appear that they or their counsel had any intimation of the fact of the investment until after the war. It would have been a very easy matter to have given notice of the fact, at least to their counsel. 687 *As to the sums of $1,200 received of Pullins, and $2,500 received of Stephenson, by the executors, in the summer of 1863, in Confederate notes, which constituted part of the said investment, and which their counsel insist were received, in the due exercise of their trust, we think, for reasons already assigned, that they had no right to receive the said sums for the said purpose, and therefore did not receive them in the due exercise of their trust. In the first place, they complain that the court erred in not dismissing the appellants' cross-bill and bill of review, out and out. We have already sufficiently noticed this subject. In the next place, they complain that the opinion of the court, which formed a part of the order of the 15th of March 1861, recommitting the cause to Commissioner Strickler to modify the report of Commissioner Stephenson, in conformity with the principles and instructions embodied in the said order, was erroneous in several respects. And 1st. That the instructions of the court overruled the second exception of the appellees to Commissioner *Stephenson's report, for allowing commissions to the appellants, when they never made any settlement at all. 688 That said second exception to Commissioner Stephenson's report, which was filed on the 24th of March 1860, was not renewed to Commissioner Myers' report, which was filed on the 24th of April 1867; nor was there any exception to the latter report on account of commission allowed to the executors of J. B. Campbell, although exceptions were taken by the appellants to that report on other grounds. Conceding, for the purposes of this case, that their failure to renew their exception on that ground, to Commissioner Myers' report, was not a waiver of it; let us enquire: 1st. Whether there was any error in the said opinion of the court in that respect; and if not, then 2ndly. Whether the report of Commissioner Myers does not conform to the instructions of the court in regard to commission; or, at least, must not be considered as having so conformed, in the absence of any exception to the said report for non-conformity? 1st. Was there any error in the said opinion of the court in regard to commission? That opinion is as follows: "As to the allowance of commission to the executors, the court is of opinion, that unless a statement of receipts other than those embraced by the assignment, was within six months after the expiration of any year, laid before a commissioner by the executors, no commission should be allowed them thereon unless such statement was given by them to those entitled to the money and it was actually settled with them. As to the notes and bonds included in the assignment, the executors of J. B. Campbell did not regard them as assets, until the decree of the Court of Appeals, and they could not properly be regarded as received by them in that character prior thereto. If a statement of the receipts thereof was laid before a [The judge then proceeded to consider commissioner in this suit, who was directed the other exceptions to the commissioner's to settle the same, within twelve months report; but as they relate to mere matters of fact, this part of the opinion is omitted. 689 He then proceeded as follows:] Surely it cannot be necessary to say anything more for the purpose of showing that the said executors are not entitled to be credited with the amount of said investment, at least so far as the widow and her representatives are concerned. And we are of opinion that the said third exception was properly overruled. We have thus disposed of all the appellee's exceptions to the reports of Commissioner Myers; but they complain of other alleged errors in the prior proceedings in the cause, some of which at least it is now proper to notice. after such decree, then commission *should be allowed. In other words, the court recognizes that the defendants ought to be regarded as in default, and liable to forfeit their commission on the assigned paper, until it was declared by the Court of Appeals to be assets; that all the receipts prior to that day by their transferees should, as of that date, be held to be in the hands of the executors; and that if they complied with the provisions of the statute then, their commission is not forfeited. The same principle will apply to any subsequent receipts." considered as having so conformed in the absence of any exception to the said report for non-conformity? 691 Commissioner Stephenson commenced the taking of the account decreed to be taken by the Court of Appeals in due time thereafter, and there is nothing in the record to show that the executors did not place their accounts and vouchers in his hands in full time to be entitled to commission, according to law and the principles settled by the said opinion of the court. It is said there were other assets which came to their hands besides the notes and bonds, on which they forfeited their commission. Those other assets must have been of *small amount. But there is nothing apparent on the record which enables us to say with certainty that the executors incurred a forfeiture in regard to any of their commission, and we must, therefore, say that they conformed to the law, in the absence of any exception to the report of Commissioner Myers for non-conformity. The executors were certainly entitled to some commission. They did not forfeit all, if any. Which did they forfeit? The appellees should have laid their finger upon it by an exception. There was no such exception. And we, therefore, think, that no objection can now be taken here to the allowance of commission made to the executors by Commissioner Myers. Without specifying the other objections made by the counsel of the appellees to that opinion, it must suffice to say that we do not consider them well founded, or that they, or any of them, ought to be sustained. Now we see nothing in this opinion which we consider erroneous. There is nothing in the record to show that the executors and their brothers did not act bona fide in claiming the notes and bonds under the assignment, until the Court of Appeals decided that the assignment was null and void as to the widow of the testator. He had an undoubted legal and moral right to give away his notes and bonds by a completed gift inter vivos, and thus to give them away for the purpose of preventing his wife from succeeding to half of them as his distributee. He attempted to give them to his brothers, who, with his wife, were his only next of kin, and she was in her last illness of consumption. Whether the gift was valid or not against the wife was the only question in the case; and that was a pure legal question. Thomas Campbell received and held the notes and bonds as assignee, and not as executor, though he was one of the executors, and he made a division of them between himself and his brothers, in pursuance of what he, no doubt, honestly supposed to be a valid trust reposed in him by the donor. A suit was in due time brought by the executors of the widow, to test the validity, as against her, of the| assignment. That suit was in due time tried in the Circuit court, which decided in favor of the validity of the assignment. The executors of the widow appealed from the decree of the Circuit court; and this court reversed that decree and decided 690 against the validity of the assignment, and that the notes and bonds were part of the testator's estate, of which his wife was entitled to a distributive share. Until the decree of this court the question of title to the notes and bonds was undecided, and they were not in the hands of the executors as such. They could not, until then, be brought into their executorial accounts. They were not in default for not having themselves brought a suit to have the question decided earlier., A suit for that purpose was brought in due time by the conflicting claimant, and there was no want of diligence in the executors in regard to the subject until after the decree of the Court of Appeals in August 1858. Then there was no error in the opinion, that the notes and bonds should not be considered as part of the estate in the hands of the executors until after the decree of this court. Nor do we think there was 692 any error in the said opinion as to the right of the executors to commission afterwards, or as to their duties and the means to be used by them to avoid a forfeiture of their commission. We see no error in the opinion, in any respect, in regard to commission. Then, 2dly. Does not the report of Commissioner Myers conform to the said opinion in regard to commissions; or, at least, must it not be Upon the whole, we think that the decrees appealed from should be reversed, so far as they are considered erroneous in the foregoing opinion, and such decree rendered in lieu of the portions reversed as is required by the said opinion, and should be affirmed in all other respects, with damages according to the law and costs to the appellee, John W. Hedges, surviving executor of Alcinda C. Campbell, as the party substantially prevailing. The decree was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that there is no error in the decree appealed from to the prejudice of appellants, Thomas Campbell and Benjamin B. Campbell, either in their own right or as executors of James B. Campbell, or of their brothers, the appellees, John Campbell, Samuel C. Campbell, William M. Campbell, A. Hanson Campbell and Edgar Campbell. But the court is further of opinion, for reasons stated as aforesaid, that *there are errors in said decree to the prejudice of the appellee, John W. Hedges, surviving executor of Alcinda C. Campbell, as follows, to wit: 1st. The said Circuit court erred in overruling instead of sustaining the appellee's first exception to Commissioner Myers' first report. "That on page 24 of said report he has credited the estate with $330.12, instead of $725.12, cash received of Wm. Skeen, receiver;" and No. 4. Amount of two bonds on John Malcomb. No. 5. Amount of two bonds of Thomas Bird, to be credited on John Lamb's bond. Instead of sustaining the appellants' and in overruling, instead of sustaining, the appellee's renewal of that exception to Commissioner Myers' second or amended report, such renewal being embraced in their first exception to said second report' It appears from a receipt of Thomas Camp-overruling the appellees' exceptions in rebell, one of the executors of James B gard to these three items (Nos. 3, 4 and 5), Campbell, to said Skeen, receiver, at pages the Circuit court ought to have referred the 385-6 of the record, that $725.12 was the true subjects of them to a commissioner for amount received. further enquiry and account, and erred in not doing so. No. 6. Balance due from D. G. Kinkead, 20th June 1850, as per statement of J. B. C., $185.53, and interest *to January 10, 1860, when renewed by W. M. C., $108.21. This debt is included in William M. Campbell's list of bonds, and is not included in his list of insolvents which he returned under oath February 7, 1860. The presumption, therefore, is that it has been collected, or is a good debt. It was renewed March 10, 1860, for $274.09, which seems to be less than the amount of debt and interest due on that day, the difference, no doubt, having been paid when or before the new bond was given. 2d. As to the appellee's second exception to Commissioner Myers' first report renewed in their first exception to his second report; "because the commissioner has failed to 694 charge the executors with the new list of bonds filed with the late answer of Thomas Campbell since Commissioner Strickler's last report, and headed "A list of J. B. Campbell & Co.'s bonds assigned to Thomas Campbell and believed to be insolvent or not collectible, amounting as added up at the foot to $8,012.87." Although it was proper not to charge the executors with the whole amount of the bonds included in the "new list" referred to in the exception, yet, as since that list was filed in 1861, some of the said bonds may have been collected, or, as some of them may now be collectible, there ought to be an enquiry and account by a commissioner to ascertain the facts. The court, therefore, erred in overruling the said exception, and, instead of doing so, in not directing such an inquiry. 3d. As to the appellee's second exception to Commissioner Myers' second or amended report; that is, "to the allowance made by the commissioner in his said 693 *second report of credit to the executors, on the first page of said report, for each and every of the items numbered 1, 3, 4, 5, 6, 7, 8, 9 and 13, amounting in the aggregate to $2,673.88 of principal and $122.67 of interest." These items here numbered were items of charges to the executors in Commissioner Myers' first report; to which items the appellants excepted, and their exceptions to which were sustained by the court below. The said items are designated by the same numbers in a statement on page 43 of Commissioner Myers' first report, copied on page 740 of the printed record. Commissioner Myers, having accordingly, in his second report, given credit to the executors for those items, the appellees, on their part, excepted to the amended report on that account. We will have to take up and dispose of the items as they are above numbered. The Circuit court erred in sustaining the appellants' exception to this item in Commissioner Myers' first report and in overruling the appellees' exception to the corresponding item in Commissioner Myers' second report. The item is a proper credit to the estate. No. 7. Bond of Marshall and Cunningham, due 1st March 1851, and interest. The appellants' exception to this item was sustained as to all over $227. The appellees insist that it ought to have been overruled altogether. Instead of sustaining the appellants' and overruling the appellees' exception as to the excess of said bond over the said sum of $227, the Circuit court ought to have referred the matter of such excess to a commissioner for further enquiry and account, and erred in not doing so. No. 8. Bond of J. J. Cooper, due August 1st, 1844, and interest. No. 9. Bond of H. Michael and interest. These two items (Nos. 8 and 9) are proper credits to the estate, and the Circuit court erred in sustaining the appellants, and overruling the appellees' exceptions in regard to the said two items. No. 13. Value of shares in the estate of Wm. Dinwiddie, deceased, on the 19th day of June 1861, $4,342.39. No. 1. Price of mule sold by S. M. Lightner and accounted for to executors. Cred- 695 ited to the estate of J. B. Campbell in 1853 in Commissioner Myers' first report, page 2. The Circuit court erred in sustaining the appellants' exception to this item in Commissioner Myers' first report, and in overruling the appellee's exception to the same item in the said commissioner's second report. The item is a proper credit to the estate. No. 3. Bond of John Ginger, due 29th January 1841, and interest. ac The appellants' exception to this item was sustained as to all over $2,500. The appellees insist that it ought to have been overruled altogther. There is nothing in the record which shows that the executors are chargeable with more than $2,500, which they actually received on count of said interest. Instead of sustaining the appellants' and overruling the appellees' exceptions as to the excess of the value of said shares over the said sum of $2,500, the Circuit court ought to have referred the matter of such excess to a commissioner for further enquiry and account, and erred in I. COURTS. A bill of review is a proceeding to correct a final Vanmeters, 3 Gratt. 148; Hancock v. II. PARTIES. A bill of review can only be filed by a person who was a party or privy to the former suit; and even persons having an interest in the cause, if not aggrieved by the particular errors assigned in the decree, cannot maintain a bill of review, however injuriously the decree may affect the rights of third parties. Heermans v. Montague (Va.), 20 S. E. Rep. not doing so. Therefore it is decreed and ordered that so much of the said decree appealed from as is inconsistent with the decree in the same court in which that decree was foregoing opinion and decree, be reversed rendered. Laidley v. Merrifield, 7 Leigh 346; Vanand annulled, and the residue thereof meter v. affirmed, including in such affirmance that Hutcherson, 76 Va. 609. portion of the said decree of the 29th day of September 1867, which adjudged, ordered and decreed that the said Thomas Campbell and Benjamin B. Campbell, the executors of J. B. Campbell, do, out of their own estates, pay to the said John W. Hedges, as surviving executor of Alcinda C. Campbell, deceased, the sum of thirty-three thousand eight hundred and sixty-two dollars and twenty-nine cents, with interest | 899; Amiss v. McGinnis, 12 W. Va. 371; Chancellor v. on twenty-five thousand and twenty-three dollars and thirty-nine cents, part thereof, from the 20th day of January 1861 till paid; the amount due by said Thomas Campbell and Benjamin B. Campbell to the said John W. Hedges as surviving executor of Alcinda C. Campbell as aforesaid, being increased by this decree, and being therefore greater than the said sum of money and interest decreed to be paid by the said decree of the 29th day of September 1867, as aforesaid. The payment| of which sum of thirty-three thousand eight hundred and sixty-two dollars and twentynine cents ($33,862.29), with interest on twenty-five thousand and thirty-three dol Spencer, 40 W. Va. 337, 21 S. E. Rep. 1011: Hall v. To maintain a bill of review, the party filing the same must show by the allegations thereof that he is interested in the matter disposed of by the decree sought to be reviewed, what those interests are, and that he will be benefited by a reversal or modification of said decree. Riggs v. Huffman, 33 W. Va. 426. 10 S. E. Rep. 795; Hall v. Lowther, 22 W. Va. 570: Kanawha Valley Bank v. Wilson, 35 W. Va. 36, 13 S. E. Rep. 58: Laidley v. Kline, 25 W. Va. 208; Miller v. Rose, 21 W. Va. 291; Shrewsbury v. Miller, 10 W. Va. III. LEAVE OF COURT. 115. lars and thirty-nine cents ($25,033.39), part A bill of review whether for error apparent on the thereof, from the 20th day of January 1861 till paid, together with the costs and dam-record or on the ground of after-discovered new ages hereby decreed in his favor, the said matter can only be filed by leave of court. This rule John W. Hedges, as surviving execis to prevent clamorous litigants who have no just 696 utor of Alcinda *C. Campbell, de- cause of complaint from reopening a final decree on ceased, is to be at liberty to enforce frivolous grounds. Especially is such leave of court forthwith, without waiting for the making necessary since an appeal lies to the refusal of the of the enquiries and taking of the accounts court to allow a bill of review in a proper case. hereby directed to be made and taken. Diamond, etc., Co. v. Rarig, 93 Va. 595, 25 S. E. Rep. 894; Legrand v. Francisco. 3 Munf. 83: Heermans v. Montague (Va.), 20 S. E. Rep. 899; Davis SewingMachine Co. v. Dunbar, 32 W. Va. 335, 9 S. E. Rep. 237; Hatcher v. Hatcher, 77 Va. 600: Hill v. Bowyer, 18 And it is further decreed and ordered that the appellants, Thomas Campbell and Benjamin B. Campbell, executors of James B. Campbell, do, out of their own estates, pay to the appellee, John W. Hedges, surviving executor of Alcinda C. Campbell, decease1, damages according to law and his costs by him about his defence in this behalf expended. And the cause is remanded to the said Circuit court for further proceedings to be had therein in conformity with the foregoing opinion and decree. Which is ordered to be certified to the said Circuit court of Highland. 1. Courts. BILLS OF REVIEW. II. Parties. III. Leave of Court. IV. Form of Bill. V. Essentials. A. Final Decree. B. Grounds of Reversal. 1. Error of Law Apparent on the Record. 2. Newly-Discovered Evidence. VI. Statute of Limitations. VII. Procedure. Gratt. 364: Amiss v. McGinnis, 12 W. Va. 399: Bowyer Munf. 521; Lee v. Braxton, 5 Call 459; Roberts v. West Virginia Rule.-There need be no leave of court to file a bill of review based on error of law. but such leave is necessary when the bill of review is based on newly-discovered facts. Dunfee V. Childs, 45 W. Va. 155, 30 S. E. Rep. 102: Nichols v. Nichols, 8 W. Va. 174: Davis Sewing-Machine Co. v. Dunbar, 32 W. Va. 335, 9 S. E. Rep. 237. IV. FORM OF BILL. It is the settled practice, to treat a bill of review which is filed to an interlocutory decree as if it was in name a petition for rehearing; and a petition for rehearing, which is filed to a final decree, as if it was a bill of review, provided it conforms to the ordinary requirements of such a bill. Ambrouse v. Keller, 22 Gratt. 769; Kendrick v. Whitney, 28 Gratt 646-654: Summers v. Darne, 31 Gratt. 791, 808; Rawlings v. Rawlings, 75 Va. 91; Dillard v. Thornton, 29 Gratt. 392; Hill v. Bowyer, 18 Gratt. 364; Martin v. Smith, 25 W. Va. 583: Sturm v. Fleming, 22 W. Va. 413; Heermans v. Montague (Va.), 20 S. E. Rep. 899: |