dissenting.
*737I dissent from the opinion adopted by the majority of my associates. I am aware that a dissent is usually vain, because it serves no practical purpose, however satisfactory it may be to express thoughts lying largely in a sentimental emotion. The flavor of this suit is, to say the least, distasteful. It is the lugging into court of an aged father by his child with a claim for money due to her.
This claim arises out of a provision in the will of Mrs. Broaddus, the mother of the claimant and the wife, now deceased, of the father, against whom the claim is asserted. The will charges the estate of the testatrix with the payment to the claimant of $50 a month up to the death of Mr. Broaddus, the husband of the testatrix and, as we have said, the father of the claimant. The income of her Danville property was left to her husband, subject to the provision referred to. The husband was charged with the duty of keeping the property in repair and paying taxes, etc. The father of the claimant owned a farm in Essex county, Virginia, upon which his wife and his daughter, the complainant, lived until the wife’s death and the marriage of the daughter. The wife died in 1922. The daughter married in 1927. Martha Broaddus then became Martha Broaddus Gresham.
Subsequently, indeed, about 1933, a relative, who had charge of the Danville property and had been, in a way, caring for it, died and it became necessary for some one to be concerned about it and to give its care personal attention. This became the duty of Mr. Broaddus, who moved to Dan-ville for that purpose. He found it necessary to expend considerable sums of money to put the property in rentable and profitable shape. He continued to live in Danville, and his married daughter, with her husband, continued to live on his farm in Essex county. This farm was equipped with personal property sufficient for its profitable operation. Most of this property was of such a nature as to deteriorate with use and become less valuable with age. All of this, including a pair of mules and an automobile, was used without restraint by Mrs. Gresham and her husband. Their two children were born there and, at the time of the entry of *738the decrees in this suit, they had reached the ages of 11 and 9 years.
During this period Mr. Broaddus sent sums of money to his son-in-law, Mr. Gresham, aggregating $1,511.14, besides a number of payments to his daughter on account of the $50 a month legacy. He became largely in arrears, however, in the payment in full to date of this legacy. He explained this by saying that he expected the occupancy of the farm by his daughter and her family would offset it. As evidence of the fact that $50 per month for the use of his Essex property was a reasonable charge, Mr. Gresham entered into an agreement with him after the controversy arose between himself and his daughter to pay that amount for it. She instituted suit to recover from her father the amount which she claimed and the trial court gave her a judgment for $8,137.17, which, in effect, was affirmed by the majority opinion of this court.
The commissioner in chancery, to whom the cause was referred, in his report made this statement: “It would be inequitable and unconscionable for Mrs. Gresham and her family not to account to Mr. Broaddus for the use and occupancy of Glencairn (the name of the Essex county home) from October, 1933, to June, 1941, under the circumstances of this case.”
His report also contains this apt expression: “The equitable principle of ‘he who seeks equity must do equity’ should be applied. * * * . Mrs. Gresham in asserting her claim against Mr. Broaddus should be required to account for the benefits which she has received from him in the use and enjoyment of the farm.”
I am in hearty accord with the findings of the commissioner and with the expressions employed by him, which seem to me to be so in harmony with equity and good conscience.