dissented.
The decree was as follows:
This day came again the parties, by their counsel, and the Court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing, and filed with the record, that the fifth clause of the will of Samuel Garland, Sr., deceased, did not give to his wife, Mary L. Garland, a specific legacy in the use and profits of his bank and other paying stocks to the amount of fifty thousand dollars for her life, and of the stocks themselves to Paulina B. Morriss and her children, after the death of his wife, *230as separate estate, but that on the contrary the said bequests were demonstrative; that is to say, they were general legacies, payable out of the general assets, but with an appropriation of certain subjects as the primary fund for their satisfaction.
The court is therefore of opinion that the decree of 25th November, 1875, is erroneous in holding tliat Samuel Garland, Sr., by the fifth clause of his will gave to his wife a specific legacy in the use and profits of his bank and other paying stocks to the amount of fifty thousand dollars for her life and of the stocks themselves to Mrs. Morriss and her children after the death of Mrs. Garland; and that said* decree is also erroneous in holding that by the renunciation of the will by the widow the remainder to Mrs. Morriss and children in and to one moiety of the stocks and bonds “ was extinguished and destroyed” and “ defeated and adeemed.”
The court is further of opinion that said decree is also erroneous in holding that the appellant, Paulina B. Morriss, or her trustee for her, was entitled presently to receive the remaining moiety of said specific legacy to compensate her for her disappointment in failing to get the whole at the death of Mrs. Garland.
The said court also erred in its decree of 20th November, 1877, in decreeing “that John P. Slaughter, adm’r de bonis non with the will annexed of Samuel Garland, Sr, deceased, do transfer and deliver to Charles Y. Morriss, as trustee for his wife, Paulina B.,and her children, six bonds of one thousand dollars each of the six per cent, enlarged mortgage bonds of the Virginia and Tennessee Railroad Company, with the unpaid coupons thereon, which became due on the 1st day of January, 1874, and the 1st day of July, 1877, respectively, and the eight per cent, bond and certificate of the same company for the sum of one thousand six hundred and seventy-seven dollars and sixty cents, on which *231the interest due the 1st day of January, 1874, and the 1st day of July, 1877, respectively, is unpaid, and he shall deliver and transfer to the said C. Y. Morriss, as trustee as aforesaid, whatever evidence or security for said last named interest he may have taken.”
And it also erred in decreeing “that the said John F. Slaughter, as administrator as aforesaid, out of the assets of his testator in his hands to be administered, if such he hath; and, if not, then out of his own proper goods and chattels do pay to the said Charles Y. Morris, as trustee aforesaid, the sum of six thousand one hundred and two dollars and twelve cents, with interest on four thousand four hundred and thirty-five dollars and ten cents from the 15th day of October, 1877, until paid, which bonds, certificates, coupons and money are to be received by the said trustee in full satisfaction of all claims of his wife, Paulina B., and her children, under the • fifth clause of the will of Samuel Garland, Sr., deceased, in and to fifty thousand dollars in bonds and stocks given by the said clause to the testator’s wife, for life, with the remainder to the said Paulina B. Morris and her children, and are to be held by the said Charles Y. Morriss in trust for the sole and separate use of his said wife and her children, free from his debts or control, except as trustee as aforesaid.”
Therefore it is decreed and ordered that so much of the decrees of the said circuit court of November 18th, 1863, November 25th, 1875, and November 20th, 1877, as are in conflict with the views herein declared, be reversed and annulled, and in all other respects affirmed, and that the appellee, John F. Slaughter, administrator with the will annexed of Samuel Garland, Sr., deceased, out of the estate of his said testator in his hands pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here; and it being suggested that the appellants have been paid the money and bonds decreed them by the *232decree of 20th November, 1877, it is remitted to the circuit court of the city of Lynchburg to make such order as may be necessary for the restitution of all of said property.
And this cause is remanded to the said circuit court with directions to set apart $50,000 worth, at par value, of good stocks and bonds, paying at least six per cent, per annum interest or dividends, and hold the same until the death of the said Mary L. Garland, when they must be conveyed to the trustee of the appellant, Paulina B. Morriss, and her children, as required by the will, and that in the interim, the interest and dividends accruing on said stocks and bonds shall be applied, as far as may be necessary, to the indemnification of the residuary legatees, out of whose legacies the stocks and bonds must be taken, and for further proceeding to be had therein, in conformity with the opinion aforesaid and this decree
Which is ordered to be certified to the said circuit court of the city of Lynchburg.
Decree reversed.
On a rehearing—March 20, 1884,
Lacy, J.,delivered the opinion of the court.
The rehearing awarded in this case was general, and all the questions involved have been argued. The appellees have, however, admitted that the legacy described in the 5th clause of Samuel Garland’s will is not a specific legacy; that the renunciation by Mrs. Garland of her husband’s will did not entitle her to any specific property, and the acceptance by Mrs. Garland, without objection, of the stock and bonds allotted under the 5th clause of the will did not preclude the appellants from excepting to the report of the commissioners who made the allotment.
*233The first question raised by the appellee is as to the effect on this appeal of the appellants having voluntarily accepted the bonds, certificates, coupons, and money decreed to them by the decree here appealed from. After the decree of November, 1877, in the month of Februry, 1878, a settlement was had between the parties, and the counsel for Mrs. Morriss, trustee, executed the following receipt, which is filed with and by order of this court made a part of the record in this case, and is as follows :
“ Received of John F. Slaughter, administrator de bonis non with the will annexed of Samuel Garland, Sr., dec’d, the sum of six thousand four hundred and thirty dollars and thirty-five cents, in full of the sum of money decreed to be paid to Charles Y. Morriss, as trustee for his wife, Paulina B., and her children, by a decree pronounced in the circuit court of Lynchburg, at the November term, 1877, in the case of Garland's Ex'or v. Garland and others, with interest up to this date; and also of the interest due July the 1st, 1877, on the bonds and certificates of the Virginia and Tennessee Railroad Company, in the said decree mentioned, which interest was collected after the account rendered in the said case before Commissioner Manson. Received, also, the six bonds for one thousand dollars each of the enlarged mortgage of the Virginia and Tennessee Railroad Company,, bearing six per cent, interest, with the coupons falling due on the 1st of January, 1878, and from that time forward attached ; also, fifteen hundred dollars in the eight per cent, bonds of the said railroad company, given for past due coupons in 1869, with the coupons due the 1st of January, 1874, and the 1st of January, 1878, and from thence forward, attached (the interest due the 1st day of July, 1877, having been collected by the said Slaughter, and accounted for in the sum above specified); which bonds are received in discharge of the bonds and certificates of the Virginia and *234Tennessee Railroad Company, decreed to be transferred to said Charles Y. Morriss, trustee as aforesaid, except as to the amount of one hundred and seventy-seven dollars and sixty cents in the eight per cent, certificates of said company for deferred interest, on which the interest due the 1st of January, 1874, is unpaid. On the said balance the interest due the 1st of July, 1877, is settled in the sum first above specified, but interest due the 1st of January, 1878, is still unpaid.
“Edward S. Brown,
“ Attorney for Charles T. Morriss, trustee for Paulina B. Morriss and her children.”
By this receipt, it is claimed by the appellees that the appellants released all errors in the decrees appealed from; that they are thereby estopped from seeking to disturb said decrees; that they have thus made a deliberate election, and a binding bargain on good and sufficient consideration.
This question in this form has not before arisen before this court, and is in this case a question here of first impression. But it has been often the subject of consideration and judicial decision in other States and in other ■courts.
In the supreme court of the United States, in the recent case of Embry v. Palmer, 107 U. S. R. p. 8, Mr. Justice Matthews, in delivering the unanimous opinion of the court, said: “A suggestion is made in argument that Embry is estopped to prosecute this writ to the reversal of the decree below, because it appears that the amount of money ordered by it to be paid to him as a condition of relief granted, has been accepted by him. It is said that this is a release of errors. Without entering upon a discussion of the general question, it is sufficient for the present purpose to say that no waiver or release of errors, operating as a *235bar to the further prosecution of an appeal or writ of error, can be implied, except from conduct which is inconsistent with the claim of a right to reverse the judgment or decree which it is sought to bring into review. If the release is not expressed, it can arise only on the principle of an estoppel. The present is not such a case. The amount awarded, paid, and accepted, constitutes no part of what is in controversy. Its acceptance by the plaintiff in error cannot be construed into an admission that the decree he seeks to reverse is erroneous; nor does it take from the defendants ■in error anything, on the reversal of the decree, to which otherwise they would be entitled, for they cannot deny that this sum at least is due and payable from them to him. But in every point of view the objection is met and answered by the decision of this court in the case of United States v. Dashiel, 3 Wall 688.”
In that case, p. 697, the court said: “Defendants move to dismiss the case because it appears by the record, as they allege in the motion, that the judgment in the court below was in favor of the plaintiffs, and that before suing out the writ of error, they obtained satisfaction of the judgment by execution and sale.”
In that case satisfaction of the judgment was only in part, and the partial satisfaction seems to have entered into and influenced the decision of the court, and three judges dissented. The court held: “Where a writ of error is taken to the appellate court by a plaintiff below who previously to taking the writ issues execution below and gets a partial but not a complete satisfaction on his judgment, the writ will not, in consequence of such execution merely, be dismissed.”
In the case of Erwin v. Lowry, 7 Howard U. S. R. 184, the amount of the judgment was paid fco the sheriff in August, and paid by the sheriff to the creditor and appellant Erwin in November, 1844. The writ of error was sued out *236in May, 1845, and there accompanied the record an assignment of errors. The defendant asked to have the writ of error dismissed on the production of a copy of Erwin’s receipts to the sheriff, on the ground that by receiving the money, Erwin released the errors complained of
The court held that the motion came too late to be heard, but that if it could be heard it was no bar. The court said “ the proceeding was of a mixed character, partaking more of the nature of a proceeding in equity than ■ one of law, and although it can only come here by writ of error, yet-this does not change its character. A writ of error in equity proceedings is not peculiar. . . . And we take the rule to be that although a decree in equity is fully executed at the instance of the successful party, he cannot complain of his own voluntary acts, if he does perform a condition imposed on him before he can have the fruits of the decree, although the other derives a benefit from such performance. If it was otherwise a writ of error in such a case as the present, or an appeal in equity, might be defeated after the writ of error or the appeal was sued out, where there was-no supersedeas, and here there was none.
Five years is the time allowed for prosecuting appeals to and writs of error out of this court, and in many cases decrees and judgments are executed before any step is taken to bring the case here; yet in no instance within our knowledge has an appeal dr writ of error been dismissed on the assumption that a release of errors was implied from the fact that money or property had changed hands by force of the judgment or decree. If the judgment is reversed ... it is the duty of the inferior court . . to restore the parties to their rights.”
We have been referred to numerous authorities on the other hand from many other States of the Union, which hold that to accept the benefits of a decree is in effect to release errors, and to enforce the collection of the sums de*237creed to be paid is a bar to the appeal—that to enforce the judgment by execution, and to receive payment of the same, extinguishes the judgment, and there is nothing left to base an appeal upon.
The learned and industrious counsel for the appellees have presented to the court an imposing array of well considered cases from the highest courts of other States on this subject, and sustaining this view, and they commanded the earnest attention and best consideration of this court, but we are compelled to withhold from them our sanction. They do not seem to be based upon sound principles of justice. It does not seem to us to be right to permit the lower courts to put upon litigants terms of constraint which shall operate under the shadow of their necessities to de - prive them of the right to bring their cause to this the tribunal of last resort established by the constitution of the State for the correction of errors
To do so might and doubtless would operate in many •cases, as it would in this, in hardship and oppression upon those most dependent upon the courts of the country for their protection. In this particular case, the amount received was accepted, as appears, with the understanding on the part of the appellant that the appeal was to go oh. The administrator had announced his purpose to appeal, and had procured a suspension of the decree to that end, and there was certainly no agreement or understanding of compromise by which it was agreed to release errors, and we think there is no- rule of law which effects that end. We think the unanimous opinion of the supreme court of the United States, in the late case of Embry v. Palmer, cited above, is well reasoned, and is founded upon sound principles of justice, and we prefer to rest our decision upon the principles there laid down in the cases there cited.
There are other questions raised in the argument of the learned counsel of the appellees, but we think they are all *238sufficiently disposed of in the well considered opinion of this court, delivered by Judge Hinton on the first hearing, and it is not necessary to review them here. We see no just ground of objection to that opinion upon any of the questions therein considered. And we are of opinion that the decree of the circuit court of Lynchburg must be reversed, for the reasons set forth therein.
Richardson, J., dissented.
Former opinion affirmed.