The opinion of the court was delivered by
Willard, C. J.A question of construction upon the will of Whitfield Brooks is fundamental to the present accounting.
After making various specific devises and bequests and pecu7 niary legacies, the testator, in the eleventh clause of his will* provides as follows: “All and singular the rest and residue of my estate, both real and personal, of every description, I give, devise and bequeath to my beloved wife, Mary P. Brooks, for and during the term of her natural life; and after her death it is my will and desire that the same shall be sold and the proceeds thereof equally divided among my children in fee, share and share-alike.” The question arising in the first instance on this clause is whether Mary P. Brooks was to take a life-estate, to be specifically enjoyed by her as such, or was she simply to enjoy the interest of a fund equivalent to the value, at the death of the testator, of the estate that passed to her under the residuary clause — the principal of such fund to pass to the children of the testator at her death ?
It is clear that Mary P. was not intended to take independently, as specific devisee and legatee, each of the items of which the mass of' the estate was composed, for, in the first place, the form of the devise precludes such construction, it being in its character residuary, implying primarily that that which passed was to be taken as a whole; and, in the second place, part of the residue of the estate consisted of personal property in its nature consumable in the use and not reproductive, in which a life-estate with remainder could not be created by way of an-independent specific bequest, so that the only mode in which the residuary devise could operate, with full effect as to all that was intended to be included in it, was by treating the residue of the estate as intended either to be specifically enjoyed in mass or as a fund producing interest according to its value. Calhoun v. Fergeson, 3 Rich. Eq. 160; Devlin v. Patterson, McM. Eq. 459.
Was the estate, then, intended to be enjoyed specifically in mass, or as an interest-bearing fund, its value to be computed at *444the death of the testator? The fact that it was devised as a remainder standing by itself would lead to the conclusion that the testator intended that the whole residue should, at his death, be converted into money and enjoyed, after payment of debts, according to the terms of limitation, as a fund. But this inference, in the case of a devise of a residuum to a tenant for life with remainders, is rebutted by the expression of an intention that the sale shall be postponed until after the death of'the life-tenant. The reason of this conclusion is that the motive of postponing the sale must be assumed to be a desire that the tenant should have the specific enjoyment of -the property itself. Calhoun v. Fergeson, 3 Rich. Eq. 160; Glover v. Hearst, 10 Rich. Eq. 329.
In the present case, the sale of what passed to Mary P. under the residuary clause was postponed until after the death of the life-tenant. That the provision for the sale of the residue after the death of Mary P. was intended as a postponement of such sale, and not merely as a provision for the final disposition of what had not previously been sold, is apparent from other clauses of the will. As it regards the realty part of such residue, the sale could not take place at an earlier day than that of the death of the life-tenant, because, as to certain parcels of such real estate, J. H. Brooks and Ellen Dun ovan t were to have at that time an election to take such parcels specifically at a valuation to be ascertained, and accordingly a sale could not take place until such election was made or declined. As it regards the slaves, two distinct clauses of the will contemplate their remaining specifically in the hands of the life-tenant during the whole or a considerable part of her life. Clause 9 provides for the substitution,, out of the slaves of the estate, in the case of the death during his minority, of certain slaves bequeathed to John H., and thus contemplates the permanence of the source from which such substitution was to be made for a considerable period after his death. Clause 12 contains a request that the life-tenant should make annual presents to the slaves bequeathed to her for life, thus contemplating their indefinite continuance specifically in her service.
It is beyond doubt that the sale intended was to embrace both *445realty and personalty together, so far as their union was essential to maintain the value of the estate as a whole, and therefore the provisions that tended to postpone the sale as to part of the property in the residuary clause must be regarded as fixing a construction on the eleventh clause as it regards the sale.
Having concluded that the life-tenant, at the death of the testator, took, under his will, a life-estate in the residue of his estate, to be enjoyed specifically, it is necessary to state the principles that should govern an accounting by her executor, after the termination of such life-estate.
It is necessary here to recognize the fact that John H. Brooks, as the executor of Mary P., is properly called upon to account, in addition to his own doings, for those of his testatrix, in her individual right, and as executrix of Whitfield Brooks. In order to state such an account accurately, it is necessary to know what part of the estate of Mary P. that came into the -hands of her executor was assets of her individual estate, and what part, if any, assets of the estate of Whitfield Brooks.
As to each of these distinct parts, separate rules of accounting are to be applied. It is necessary to, consider, then, in the first place, the rules governing an accounting by the executor of a tenant for life of an estate held for specific enjoyment in mass.
In the first place, the time to which the accounting relates is the death of the life-tenant, and not that of the testator. In this respect, an accounting by a life-tenant differs from that of an executor. The life-tenant is entitled to hold the whole estate for his own profit, subject to certain conditions or obligations. His primary duty is to maintain the estate in as good condition as when it came into his hands. If this estate is one of a productive character, as in the present case — being a plantation — that productive character must be maintained. It is self-evident that the utmost duty of the life-tenant, in this respect, is to apply the product or increase of the estate to its maintenance, so as to be in a productive condition when it passes into the hands of the remainderman. So far there, is no conflict among the authorities. The question affecting the liability of the estate of the life-tenant at his death is, whether the estate, at that time, was, as a whole, in a proper condition as to value and productive capacity. As *446it regards value apart from productive capacity, the test is not a comparison between its pecuniary value at tlie death of the testator and at that of the life-tenant. The value of property of that class may have undergone change, and the non-productive property of the estate may have undergone deterioration from natural causes, or from accident, without the fault of the life-tenant, in which case it appears that the estate of the life-tenant is not accountable for such loss or deterioration. These principles are clearly recognized and illustrated in Calhoun v. Fergeson, 3 Rich. Eq. 160. The question is not whether each article of a class of articles that went to make up the estate as a whole is in the same condition as to preservation, value and productiveness as at the death of the testator, but whether the estate, ás a whole, is in a similar condition. In making such an inquiry the condition and value of the parts of the estate must necessarily be considered, for the value of an estate is the sum of the value of its parts considered in their relation to the whole.
Johnston, Chancellor, says in Calhoun v. Fergeson: “I think the inquiry should be made into the particulars of the estate and their value at the time the remainder takes effect, for the purpose of discovering whether that which is to go over is substantially the same estate which was received by the life-tenant, and of the proper value, and whether, upon the whole, it is in as good plight, though not in the exact plight as when the life-tenant took possession.” He holds that the increase of one species of stock should be balanced against the diminution of another, ánd says that if, upon the whole, the life-tenant “ has been faithful and diligent and judicious, and has not deteriorated the substantial parts of the estate as a whole, he should not be made to suffer.”
It is easy to perceive that under this view lies the consideration that the business conducted with a view to profit should be capable of modification to suit the various conditions that may arise affecting the question of profit. A large danting or farming estate usually embraces several distinct sources of profit, not necessarily connected together and not equally profitable at all times and under all circumstances. Its produce may cover a wide range of animal and vegetable produets, and embraces that *447intended for home use and consumption, as well as that intended for sale or barter. Adaptation to the ever-changing wants of mankind is the condition of profit, imposing changes of internal economy.
In addition to this the means and methods of production undergo changes. Such causes operate to occasion changes in the relative adjustment of permanent property, stock and implements. It is evident, then, that what concerns the interest of the remainderman is that the tenant for life of such an estate should exercise a reasonable judgment in maintaining the general capacity of the estate for production, without improperly lessening the value of that which constitutes the capital invested with a view to such profit. The rule laid down in Calhoun v. Fergeson fairly conforms to this view. The strength of these conclusions will appear in Glover v. Hearst, 10 Rich. Eq. 329. In that case, although the life-tenant was limited to taking a mere support from the profit of an estate devised in mass, and as to all profits over and above what was needed for her support was a trustee for the remainderman, yet the general rules, as to the duty of the tenant for life to maintain the estate, were laid down in substantial accordance with the doctrines of Calhoun v. Fergeson. In Finley v. Hunter, 3 Strob. Eq. 78, the estate was not regarded as devised in mass, but the life-tenant was regarded as holding the several classes of property devised, by distinct specific devises, so that the question of the value and profitableness of the estate, as a whole, was not involved; still, the same general rule as that already stated, was applied, as it regarded such class separately devised.
The devise in Devlin v. Patterson, McM. Eq. 459, does not appear to have been regarded as a single devise of an estate in mass, although the nature of such devises is recognized in the opinion of Nott, J.; consequently we should not look to the discussion in that case for the rule applicable to devises of productive estates in mass, nor can that case be regarded as touching directly this subject.
The duty of the life-tenant, as it regards the application of the consumable products of the estate to its maintenance as a whole, and of the several parts of which it consists, has been the *448subject of much discussion and apparent contrariety of opinion. The question lias generally been stated in our own reports as that of the duty of the life-tenant in applying the consumable property of the estate to its maintenance, but probably the word merchantable or vendable would best describe the class of property entering into that question, as those terms would embrace such property, the product of the estate over and above what were needed for the current support of the estate as was disposable by sale or barter, and thus was available as a means of supplying deficiencies in the permanent property, stock and implements considered as the capital of the estate.
There are two aspects of this question, first, as with regard to the produce of the estate in hand at the death of the testator and that passed as part of the gift to life-tenant • and, second, as it regards the produce of the estate while held by the tenant for life. The last of these questions will be first considered, as furnishing the simplest illustration of the principles that enter into the solution of the other.
The question of the duty of the life-tenant, as it regards the produce of the estate made in his hands, is necessarily connected with that of the proper disposition of such of the produce of the estate, arising while in the hands of the life-tenant, as may remain in specie at his death.
If the product of the estate in the hands of the life-tenant is reasonably sufficient for the maintenance of the life-tenant, it is clear that any surplus over this amount should, go to keep up the value and productiveness of the estate to the condition in which it came into the hands of such life-tenant. There can be no doubt as to this proposition upon the authorities. The question becomes now completed when there is an inadequate production for the reasonable maintenance of both the life-tenant and the estate.
'When one devises an estate for life to one with remainder to another, each must be regarded as equally the object of his bounty. Not that they will necessarily have equal enjoyment of such bounty, for their gifts necessarily differ as to time and quantity, but the object sought by the testator to be attained by the respective gifts should be regarded as standing in equal im*449portance before his mind. The one object is near to him in point of time and represents his present wishes, while the other, though more remote, is presumably more permanent. It is not difficult to conceive such gifts as connected by equality of importance in the mind of the testator, nor to see the relation of such an idea to the habitual ideas of equity. We have, then, two objects to be accomplished by the application of the produce of the estate — one intended to benefit the life-tenant and the other the remainderman. The one looks to it for present maintenance and the other as a capital capable of future productiveness for his benefit.
It is clear that it would be a violation of the principles of equality to hold that whatever fortuitous event diminishes the productiveness of the estate, such mischance should be thrown wholly upon the tenant for life by requiring him to make good any amount taken for his necessary support, in order to maintain the value and productiveness of the estate to the full measure it had when it came into his hands. Such a construction could only be based on the idea that the testator intended a bounty for the remainderman, not only differing as to time and quantity, but in its nature, considered as an act of bounty. This, as we have seen, is an inadmissible conclusion; but its evil tendency is fully illustrated when it is considered that the labor and skill of the tenant for life has entered into that produce, and to that extent it would be seizing the property of one to confer it upon another.
It is equally clear, on the other hand, that the tenant for life should not be permitted to appropriate to his own purposes the whole product of the estate, making no provision for the future maintenance of the estate, for this would violate the plainest rules of ordinary prudence as well as equality. It would follow that the produce of the estate ought to be equally applied to the reasonable maintenance of the life-tenant and of the estate itself, and if that prudence should, without the fault of the life-tenant, be inadequate to fully accomplish both objects, the life-tenant and the remainderman should submit to equal inconvenience. The application of such a rule may at times be difficult and involve intricate questions of fact, but the difficulty of applying *450a sound principle ought not to be balanced against the wrong of refusing its application. It remains to consider the bearing of the authorities on this question.
An expression contained in the Circuit decree made by Chancellor Caldwell in Calhoun v. Fergeson, 3 Rich. Eq. 160, is in point. He says: “ It would seem that the testator intended that the property should support him ” (the life-tenant) “ and itself, so that she should not impair it.” This inference as to the intent of the testator is drawn from the nature of the estate created in that case, namely, a life-estate to be specifically enjoyed in mass. The question we are now considering did not directly arise in that case, still the remark is significant, and it will be observed that it was not called in - question on the appeal. Johnston, Chancellor, after speaking of the general duty of the tenant for life of an estate in mass to keep up the consumable but reproductive property, such as flocks and herds, says: “ I will not say that he is bound at all hazards for the original stock, for the relation he bears to the remainderman is that of a trustee, a relation of confidence, and though he is prima faeie bound for the property, and the burden must be upon him to show diligence and integrity in the performance of his duties, yet it is not clear upon principle that he is liable if he does show fidelity to his trust, and that the flock has perished, not by his fault, but by the act of God, as by pestilence, earthquake or other unavoidable providence.” If the Chancellor had recognized the rule, that whatever might be- the cause of the diminution of the original stock the tenant must make it good to the extent of the whole product of the estate, without deducting anything for his own maintenance, he certainly would not have discussed the question in the form in which it appears to have been treated by him. The question of making up the loss out of the produce would, it may be presumed, supersede that oí responsibility for the original loss, or, at all events, so modify it as to become a necessary part of its discussion. It must be concluded that the idea was not entertained at the time Calhoun v. Fergeson was decided that the life-tenant was bound to apply the whole produce of the life-estate to make good losses to the capital of the estate occurring without his fault. It is proper to *451remark that the argument from the relation of the trustee, between the life-tenant and the remainderman, should not be carried too far. The life-tenant primarily holds the legal title for his own beneficial enjoyment, and in that respect does not sustain the relation to the remainderman that gives rise to a technical trust. But as it regards the preservation of the value and productiveness of the estate, he owes a clear duty to the remainderman which may fairly be said to be in the nature of a trust, and as such cognizable in equity. Glover v. Hearst, 10 Rich. Eq. 329. In order to understand the application of the remarks made by the court in that case, it is necessary to have in mind the peculiarity of the interest of the life-tenant there. What was given to her there was “ to enjoy all the benefits and profits arising merely from the use of the same, after fully supporting and supplying all the wants of the plantation during her natural lifetime.” The will adds: “ And here let it be understood that all future increase will not be regarded as profits, but will remain and be regarded as part of my estate.” To carry out this plan the testator gave to his executor a certain supervisory power as it regards the management of the life-tenant.- Accordring to this provision the produce of the estate was devoted in the first instance to meeting the wants of the estate itself; second, to supporting the life-tenant; third, to accumulate as part of the estate to go to the remainder. Such a case does not test the principles on which the rights of a life-tenant are to be determined who has the whole usufruct during the life-tenancy, though coupled with the implied duty of maintaining the estate. Wardlaw, Chancellor, says: “ The tenant for life must, therefore, be considered as a trustee for the remainderman, and must preserve the estate, with all its appurtenances, in the situation in which she received it.” This, as applied to the situation of the life-tenant in that case, is undoubtedly correct, if it be added that such liability to make good the original stock should not go beyond the amount of the product of the estate. It is remarked in that case that the devise there was similar to that in Calhoun v. Fergeson, but while the two agree in the fact that both estates were devised to be specifically enjoyed in mass, in the one case the tenant of the life-estate had an unrestricted beneficial inter*452est, as in the present case, while in the other such beneficial interest was not only restricted in quantity, but burdened with the express duty or trust of maintaining out of the produce of the estate its original condition. It was natural that in such a case the general rule requiring the estate to be maintained should be considered, without noticing the ordinary limitations of that rule, as such limitations were inapplicable under the terms of the devise in that case. Having in view this fact, we must understand that when it is said, as in that case, that the tenant “ must keep up the stock of cattle, horses and provisions, and implements of husbandry in the condition in which he received them,” it is meant that such is his general duty, but not that such duty is unqualified by any exceptions or restrictions. What these exceptions and restrictions are, that case does not attempt to show, inasmuch as they were not applicable to the peculiar case then before the court.
Finley v. Hunter, 3 Strob. 78. The court withdrew that case from the rule governing estates in mass in the hands of a tenant for life, and placed it on particular expressions of the will. The duty of the life-tenant to apply the produce of the estate to repair losses, is not considered. It is easy to see that that case manifests a tendency quite contrary to that of fixing the duty of making reparations to the full extent of the product of the estate. The fact that the rule was found stated in the previous cases, apart from its qualifications, may have had an influence in the withdrawal of that case from the rule. Robertson v. Collier, 1 Hill Ch. 370. That case cannot be regarded as involving the rights of a tenant of an estate in mass to be specifically enjoyed. It was granted by a residuary clause which the court recognized as primarily implying that the estate was to be sold and enjoyed as an interest-bearing fund. In that case there was no clear intent that the sale of the estate should be postponed until the end of the life-estate, from which an intent could be gathered that it should be specifically enjoyed by the life-tenant at her will, but, on the contrary, power was expressly granted to his executor and executrix (the life-tenant) to sell during the life-tenancy, in terms that implied that the interest of the estate was to be solely consulted as to such sale, and not the interest or *453inclination of the life-tenant. This placed the life-tenant, as executrix, in a position of responsibility differing essentially from that of one who enjoys the specific use of the estate for life, according to the will of the devisor.
On the whole it must be concluded that the cases in our reports afford some support to the rule that has been stated above, and contain nothing necessarily impugning its correctness. The rule can, therefore, stand, if its reasonableness has been made apparent.
The next question to be considered is, as to the right and duty of the tenant of an estate specifically enjoyed in mass and productive in its nature, as it regards the produce of the estate realized at the death of the testator and passing under the devise of the life-estate. The true inquiry in this connection is, whether such produce is merchantable or otherwise. The produce of an estate, as a general rule, certainly ought to go, in the first instance, to maintain the estate. There can be no doubt about this proposition, either on principle or on authority. It cannot well be considered as separable from the estate when that separation would tend to impair the value and productiveness of the estate. It is, therefore, reasonable to consider that the produce of the estate on hand at the death of the testator, to the extent that is proper to be consumed or used for the benefit of the estate, should be considered as a part of the estate, and, as such, to be accounted for only as a part of such estate as a whole. On the other hand, a surplus of produce on hand at the death of the testator, over and above what was reasonably needed for use or consumption or for the benefit of the estate, would naturally assume a merchantable character as commodities suitable for sale or barter. If such vendable property is, in its nature, consumable in the use, being no necessary part of the estate as a productive, whole, the only mode in which a life-tenancy with remainder could be enjoyed in it, as held by the cases already cited, is by treating its pecuniary value as an interest-bearing fund.
If such property is not consumable in the use, the tenant for life would stand to it in the same position as if it had been the subject of an independent specific bequest; that is, would have its use for life, exercising reasonable diligence to preserve it for the remainderman who would take it in the condition it was in *454at the death of the life-tenant. This result would flow from the-mere fact of regarding such property as detached from the estate by a natural process, like that which detaches the ripe fruit from the parent stem.
It would follow from these principles that if the tenant for life takes property of this class at the death of the testator for his-own use, that his estate at his death would be liable to account, in a corresponding manner, for a reasonable quantity of like property on hand at that time. It would also follow that when the life-tenant dies before the agricultural year is completed, the-produce of such year should be realized to the estate of the life-tenant, subject to such accountability as that just stated.
It remains to consider what support these conclusions have from the authorities.
Calhoun v. Fergeson, 3 Rich. Eq. 160. It was held in that case that although the life-tenant of an estate devised in mass is only accountable for causing or permitting the deterioration of' the estate as a whole, still, in making this inquiry, regard must be had to the several kinds of property of which the estate is-composed, and the rules applicable to each kind. It would follow that the produce of the estate on hand at the death of the testator may be considered as if the subject of an independent specification, subject, however, to the consideration that if found a necessary part of the estate as a whole, any loss or deterioration may be balanced by corresponding gain in other parts of the-estate as a whole. It is clear, then, that a discrimination must be made between that part which cannot be separated from the estate without loss to the latter, and that part which may be regarded as the merchantable product of the estate. The former would be considered under the general question, whether the-estate, as a whole, has suffered improper deterioration; the latter part would be considered as the subject of an independent specific devise, and the life-tenant would be answerable for it if of the-nature consumable in the use as a fund, according to the value-which was or ought to have been realized for it; and if not consumable in the use, then for such property specifically in its condition at the death of the life-tenant and for damages for improper deterioration.
*455In the ease of Calhoun v. Fergeson, which we are now considering, it would appear that the Circuit decree held the life-tenant “liable to reproduce, at the expiration of her life-estate, the same amount of corn which she received with the estate or account for the value of the deficiency.”
This part of the decree was properly reversed. It does not appear in that case that the corn upon the estate at the death of the testator exceeded what was required to supply the current wants of the testator. Chancellor Caldwell holds that it was not in proof that she had used such consumable property as merchandise. We must, therefore, conclude, as the doctrine of Calhoun v. Fergeson on this point, that a reasonable amount of the produce of the estate on hand at the death of the testator must be regarded as part of the estate as a whole, and accounted for only in the manner in which the estate, as a whole, is accounted for, and we cannot fail to conclude that if it had appeared in that case that the life-tenant had separated from the estate and sold or otherwise disposed of the produce left by the testator, or had allowed it to go to waste when it might have been sold, Chancellor Caldwell’s decree would have ordered an account thereof. The Circuit decree in that case applies to the life-tenant the provisions of the act of 1789, (5 Stat. 111), as it regards finishing the crop incomplete at the death of the life-tenant. Such an application is eminently reasonable in view of the duty of the life-tenant’s estate to turn over to the remainderman a reasonable amount of produce to maintain the future operations of the estate. But Calhoun v. Fergeson properly holds that the amount received by the life-tenant is not the measure of the amount required to be left, for that .must depend upon the state and productiveness of the estate, for which the life-tenant is not necessarily responsible.
Glover v. Hearst, 10 Rich. Eq. 329. The result of that case is in harmony with the rule above stated, although the case does not assume to lay down the precise rule on the subject. The life-tenant received, at the death of the testator, a large amount of former produce of the estate, which must be assumed to have been largely in excess of the amount needed to carry on the estate. It was reasonable, therefore, that the life-tenant should be held *456accountable for such excess, and so the court held in effect. Tbe case, as it stood on the final appeal, was complicated by tbe fact that tbe Court of Appeals had, in a previous decision in the same case, held that the life-tenant was not accountable for the produce of the year in which the life-tenant died. The grounds of this conclusion do not appear, but as it was the law of the case the final decision had to be accommodated to it.
This led the court to say that it was unreasonable that the life-tenant should have the entire product of both years, and led to the conclusion that she must account for what was received' by her at the death of the testator. It is clear that the court, in its final decision, did not intend to lay down any general rule. It cannot be affirmed that that case was decided upon the rule under consideration, but it is not inconsistent with the principles of that rule. It may be further contended that it was not the intention of the court to state the general rule of accountability in such cases, or to put forth that case as an illustration of the true rule. It should also be observed that there is a material difference between the rights of the life-tenant in that case and in cases of the class to which the present case belongs, as there the profits of the estate, over and above the maintenance of the estate and the support of the life-tenant, were directed to be accumulated for the benefit of the remainderman.
Robertson v. Collier, 1 Hill Ch. 370. In that case the life-tenant was held accountable for produce received at the death of the life-tenant, the consumable property being treated as convertible into a fund. It appears that the amount of produce received was large — upwards of $4000 — and must be assumed to be largely in excess of what was required for use or consumption upon the estate. The question is not raised or discussed whether the life-tenant should be liable for as much of the produce on hand at the death of the testator as was requisite for the maintenance of the whole. The consequence is that the rule applied in that case, though not complete in its statement, is in harmony with that under consideration.
It must be concluded that the authorities in this state do not preclude the application of the rule above presented, which is recommended by its simplicity and reasonableness.
*457The matter of the various exceptions taken by the parties will next be considered.
The findings of the referee as to the annual value of the rental of Boselands appear to have been approved by the Circuit judge so far as they represented what would be a fair valuation as between parties standing on an equal footing. The Circuit judge, however, adds $100 per annum, on the principle of charging an executor with the highest rate who uses his testator’s land “without having tested its rental value at public auction.” Cases may exist where even a decree in equity may impose consequences in the nature of a penalty, but the present case is not appropriate for the exercise of that extreme function of equity. The executor had an election to take Boselands at a valuation to be fixed in the manner pointed out by the will. It is clear that the executor was not blamable for allowing his right of election to depend upon the result of a suit to settle the construction of the will, the various conflicts of right, and the precise mode of ascertaining such valuation. In the meantime there was a manifest propriety in the executor’s retaining the cultivation of the estate in his own hands, leaving the question of the proper allowance, either by way of interest or rent, to be determined in the controversy. The determination of the referee appears to coincide with this view of the case, and should stand.
As the principal bill now before this court seeks a construction and execution of the will of Whitfield Brooks, it is competent that the conditions as to releasing contained in the tenth clause of the will should be carried into effect through the decree. If, therefore, the parties called upon to release have not effectually done so, either in form or by their answers, the decree should be so modified as to call for an election whether they will take under the tenth clause of the will of Whitfield Brooks, and release accordingly, and, in case of such election, should call for the releases provided for by that clause.
J. C. Brooks cannot be regarded as having taken a vested remainder in the lands devised to Mary P. for life, so that the judgments against him can have a lien on his interest in such lands. The direction is that at her death the lands shall be sold and the money divided. J. C. Brooks had nothing that he *458could alienate, except as executor under the power contained in the will, and, therefore, there was nothing to which the lien of the judgments could attach. If it is assumed that the title to the land by way of remainder passed to the heir-at-law, and thus to J. C. Brooks as to his proportional share, subject to the execution of the power, still, as the execution of the power was one of the objects of the principal bill, the judgments cannot be regarded as having any lien as it regards the land. The creditors of J. C. Brooks must, therefore, so far as it regards the property claimed under the will of Whitfield Brooks, come in under the assignment of their debtor upon an equal footing, as upon assets made by a creditor’s bill in equity. In the present will there are no words of conveyance under which J. C. Brooks could take a vested interest in the land as such. The disposition of the remainder after the death of the tenant for life is under the power of sale given by the will, and is absolute in its character. Id such cases the recognized authority of a testator to convert land into money is regarded as fully exercised. Fletcher v. Asburner, 1 Lead. Cas. Eq. 497; Wilkins v. Taylor, 8 Rich. Eq. 291; Mathis v. Guffin, Id. 79.
There was no ground for dismissing the bill of the creditors of J. C. Brooks. The object of that bill, so far as that object can be accomplished at the present time, was to set up a trust, under the assignment of J. C. Brooks, for the benefit of his creditors. It is true that at law nothing passed under the assignment for want of an accepting assignee, and consequently of delivery. In equity, however, there was an inchoate trust which could be upheld and a trustee appointed. It is true that the assignment was an incident of a strictly legal proceeding, the defect of which equity cannot aid; still, the assignment was voluntary in the sense that it was not constrained or rendered necessary by law, but could be made or withheld, according to the will of the debtor. It is to be assumed that the motive that led the debtor to assign was that of obtaining a release from his debts. That end was not attained for want of compliance with the statute (4 Slat. 86) by an actual delivery to the assignee of the property assigned. Wall v. Wardens, 1 Bay 429. But the character of the assignment as the basis of the rights of creditors *459in equity, at least, must be determined by the state of things that existed at its execution, and at that time, by such act of assignment, the debtor obtained substantial advantage as against his creditors, as it was not competent for any such creditor to obtain a lien on the property so assigned from and after the date of such assignment, so long as the debtor chose to pursue his remedy for a discharge. There was, therefore, a consideration for the assignment such as equity can notice, and the abandonment of the proceedings subsequently by the debtor could not affect the character obtained by the assignment at the time of its execution. If a different view was taken it would place it altogether in the hands of a debtor, with a conniving assignee, to bind or release himself at his pleasure, and thus to hinder, delay and defraud his creditors. The declaration of trust thus being a free act of the debtor, upon adequate consideration, is capable of being put in force by a court of equity, and the creditor’s bill before the court is framed so that such remedy may be had under it. As a trust existed in equity, as between the assignee and the creditors beneficially interested, lapse of time is not a bar.
So much of the decree as declares that the children of General Dunovant should take the house and lot in Edgefield as part of their share should have provided for the equalization of the shares of such children with the other devisees upon the valuation of $5000 fixed by the will of Mrs. Brooks on such property. In taking the property the will intended that Mrs. Dunovant and her children should take as purchasers at the fixed valuation, the amount of their proportional share of the estate being determined by other provisions of the will, and they to be charged with the $5000 and credited with the amount of their distributable share, and the account adjusted accordingly. The contract of sale having been abandoned, and an election to take under the will having been made, the title passed by the words of the devise contained in the will, and it only remains to equalize the shares according to the direction of the will, and decree accordingly.
The assignments made to J. H. Brooks and J. E. Bacon should be upheld. The legal title of the assignor not having passed to the assignee under the assignment made by J. C. Brooks *460for the benefit of his creditors for want of acceptance or delivery, it remained in him, (Belden v. Pate, 12 Rich. 358,) and his assignees, under subsequent assignments, took such legal title. The creditor’s bill does not make J. E. Bacon a party, and does not make J. H. Brooks a party otherwise than as executor, and does not seek to set aside the assignments to J. H. Brooks and J. E. Bacon, nor is the question of the validity of such assignments a proper incident of the matter of either of the bills, but of an independent equity. The parties against whom this independent equity is asserted had a right to be impleaded in respect thereof, and to make a formal defence of the bar arising from the lapse of time. The course of proceeding in this respect tends to deprive them of this right. After so great a lapse of time, apparently sufficient to bar an equity of that character, and a failure to proceed formally for the enforcement of any equity they may possess, it should not be asserted in an informal and incidental manner to obtain a decree against the parties named.
Upon the principles already stated, it is clear that the proposition advanced in behalf of the executor of M. P. Brooks, that “ the life-tenant should not be held accountable in any way to the testator’s estate in remainder,” is inadmissible.
Several objections have been raised to the decree as to the gift of $2000 by Mrs. Brooks to J. H. Brooks, shortly previous to her death, which will be considered together. There is a concurrence of conclusion between the Circuit judge who decided that question and the referee, that the delivery of the certificate of deposit to J. H. Brooks was intended as a gift. As that conclusion was inferentially drawn from somewhat vague statements made by Mrs. Brooks at the time of the alleged gift, the concurrence of the views of the Circuit judge and the referee should conclude this court, unless such conclusion violates some rule of law. The certificate must be assumed to be payable to bearer, and thus the delivery of the certificate would be a complete delivery of the money payable under it. There can be no doubt as to the sufficiency of the circumstances attending the gift, assuming it to be intended as a donatio causa mortis to maintain the character of such a gift. Such being the case, the devisees and legatees of Mrs. Brooks cannot avoid the gift. As the *461insolvency of the estate is not alleged, the case is not in such a position that the question of the responsibility of J. H. Brooks for the whole or any part of this amount can be considered as affecting creditors. The decree is somewhat vague on this question, but should be construed in accordance with the conclusions just stated.
There is no error in the decree as it regards Turkey Creek plantation. The decree does not assume to define the exact interest of J. C. Brooks, nor whether that interest can be reached by his creditors.
The bill of the creditors of J. C. Brooks cannot be sustained as a general creditors’ bill for the reason that it does not appear that the creditors have exhausted their remedy at law. Holmes v. Ragsdale, 1 S. C. 91. The only ground for maintaining that bill is to enforce the trusts of the assignment. The Turkey Creek place is not embraced in the assignment as to the interest of J. C. Brooks in that place — was not acquired until long after the assignment was made. The creditors filing the bill have no recourse thereunder against the estate of J. C. Brooks not embraced in his assignment. It was, therefore, unnecessary to define the exact interest of J. C. Brooks in that place as between himself and his creditors or children.
It appears by the report of the referee that "Whitfield Brooks purchased negroes at the sale of the estate of Mrs. M. C. Carroll, deceased, part of which were originally purchased by J. B. La Borde and transferred to W. Brooks, and that after the death of W. Brooks, Mrs. Brooks paid for such purchases out of a legacy coming to her from the estate of Mrs. Carroll. The presumption is that these negroes thus purchased formed part of the estate of W. Brooks at his decease, and, therefore, passed under the clauses of his will. This, however, is unimportant. It is not disputed that the debt was a legal demand against the estate of W. Brooks, and was paid by Mrs. Brooks out of her individual estate; she is accordingly entitled to credit therefor. She is not entitled to interest on such payment, as she had the use of the property of the estate under the life-tenancy which was subject to the discharge of such debt. The referee is clearly in error in holding these negroes to be the property of Mrs. Brooks, on *462the ground that they were not included in the inventory of the estate. They must be assumed to have formed part of the estate that went under the residuary clause to Mrs. Brooks as tenant for life. She was not bound to return an inventory of property held by her as life-tenant and not in the character of executrix. If such an inventory was in fact made it was unnecessary. The rights of the remainderman to demaud an inventory depends upon an allegation of waste or the like. The inventory spoken of in Devlin v. Patterson, McM. Eq. 459, is clearly a specific inventory, distinct from that required of an executor as to property of his testator held in that character.
In Robertson v. Collier, 1 Hill Ch. 370, the inventory that may be required of a tenant for life of an estate in mass is spoken of as one of the remedies of the remainderman for the preservation of the property.
There is no evidence that Mrs. Brooks treated the slaves in question as her individual property, or in any way denied the rights of the remainderman in respect thereof. She is entitled to the credit claimed.
The decree is correct, in not allowing to the estate of Mrs. Brooks money expended in keeping up the estate held by her in life-tenancy. It does not appear that the estate has received such enhancement of value as to give occasion for such an inquiry, but improvements made by the tenant for life cannot be charged against the remainderman • unless special circumstances appear warranting such charge. No such circumstances appear in the present case, and the life-tenant must be regarded as having made a voluntary advance for the benefit of the estate and cannot claim reimbursement.
The exception that the referee erred in not charging the life-tenant’s estate with the original inventory has already been disposed of and should be overruled.
The referee properly allowed for the difference in the value of the furniture and like property arising from natural and usual deterioration. The proof of such deterioration should come from the remainderman, and if such proof is deficient, as in this case, the life-estate cannot be charged.
The two slaves sold by the tenant for life do not appear to *463have been disposed of to the detriment of the estate. The slaves are not to be regarded as the subjects of an independent specific devise and to be accounted for specifically. They formed part of the estate as a whole, and the whole question is disposed of by the finding that the estáte was in a reasonably good condition at the death of the life-tenant. The question of emancipation need not, therefore, be considered as bearing on this question. There is no error in the decree as it regards the Blocker note.
The exception that J. H. Brooks should have been charged with the actual amount derived from Boselands is not well taken. The ground of this conclusion has already been specifically stated. It is not the case of an executor seeking to make a profit to himself out of the estate, but of a provisional management pending a controversy in which the executor had a personal interest as a beneficiary under the will.
It appears that commissions were allowed by the referee for years in which no returns were filed by J. H. Brooks, as executor. The decree is erroneous in this respect and should be corrected.
It is alleged that a clerical error occurred in the accounting that was overruled in the decree, in consequence of which the executor was allowed a credit in excess of the proper amount. The decree should be opened so far as to enable the Circuit Court to correct any clerical error that may be found.
The question of the crops of the year in which the life-tenant died has already been disposed of, and the exception of Dunovant and Lake as to that matter should be overruled.
The allowance of counsel fees is a matter belonging in a proper case to the discretion of the Circuit Court. The refusal of a judge at an early stage of a.cause to allow counsel fees cannot control the judgment of the judge who hears the cause finally, nor is he bound by a previous order attempting to regulate in advance demands of that class, unless such order is in form or effect an. agreement among the parties in the cause in a form binding on them.
The tenth exception of Dunovant and Lake has already been disposed of and should be overruled. The decree is entirely correct as it regards the credit for the amount paid to Mrs. Cor*464nelia Cross, and the reasons assigned by- the Circuit judge therefor are satisfactory.
The exception charging the decree for allowing the life-tenant for the cabins and barns erected by the life-tenant is not well taken. There does not appear to bé any such charge allowed by the decree. Permanent improvements put by the life-tenant upon the land go to the remainderman as part of the estate, and are to be considered under the general question as to the plight and condition of the estate, but are not the subject of specific allowance as against the remainderman. No account appears to have been stated in conformity with the final decree. When that account is stated the estate of the life-tenant should only be entitled to commissions as executor for the years in which returns were filed.
The fourteenth and fifteenth exceptions of Dunovant and Lake have already been considered and should be overruled.
The sixteenth exception of Dunovant and Lake should be overruled. It results from the conclusion already stated, that the life-tenant is not bound for furniture, plate and other articles of that class at the value when received by her, but only for deterioration improperly caused or permitted by-her, and there is no proof of any such ground of charge.
The postponement of the charge of interest against J. H. Brooks, as executor, until the expiration of a year from his qualification, is not in violation of the established rules. The seventeenth exception should be overruled.
The decree, as it regards the account against J. H. Brooks, as executor, is correct in making the amount received by him as executor the basis of the account against him. The indebtedness of his testator is not his indebtedness as executor, the latter arising solely from the receipt of assets or neglect to call them in.
The eighteenth and twentieth exceptions of Dunovant and Lake are overruled, on the grounds already stated. As it regards the separate exceptions of Dunovant, no proper foundation is laid for the charges claimed by such exceptions, and they should be overruled.
The separate exceptions of Lake have already been disposed of and should be overruled.
*465The first and second exceptions of Mansfield are controlled by what has already been held, and should be overruled.
The payments made by J. H. Brooks, as executor to J. C. Brooks, were properly sustained. The assignment not having passed the legal title to J. C. Brooks’ estate, J. H..Brooks could settle the interest of J. C. Brooks in the estate with no one but himself. The equity of the creditors, as it regards the interest of J. C. Brooks, can only follow that interest into the hands of J. C. Brooks, but cannot undo the legality of transactions between parties as it regards a party paying that which might have been recovered of him as between the immediate parties.
The fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth and' fourteenth exceptions of Mansfield have been sufficiently considered and should be overruled.
The fifth misconceives the purport of the decree, and should be overruled.
The decree should be modified to conform to the foregoing conclusions.
Decree modified.
McIyer and Haskell, A. J.’s, concurred.