dissenting:
*270This case was decided on the pleadings. The court below sustained the appellees’ demurrer to the appellants’ petition and dismissed it. All we know about the transaction now must be gained from the allegations of the petition, the will, the decree, the deed of trust, the petition for substituting a trustee and the decree making that substitution. We do not know, for example, the age of the two Love brothers when their uncle’s will was probated, or what their expectations were about marrying and having children, or what their financial condition was when they made the deed, or what the property was worth then or now, or what were the allegations and purposes of the suit which resulted in the decree. As appellees say in their brief, “it is speculation to say definitely what its full scope was.” No evidence has been taken.
We do know that by their uncle’s will the Love brothers were given $10,000, $5,000 to each, limited to each for life in event he died without heirs of his body, and limited to both for life if both died without such heirs.
In such case, “the legatee for fife is not entitled to possession of the corpus, but only to the profits, and it is the duty of the executor to invest the fund [italics added] and hold it in trust until the termination of the life estate, unless, as was the case in Mason v. Jones, 26 Gratt. 271, a different intention appears from the will.” Hawthorne v. Beckwith, 89 Va. 786, 791, 17 S. E. 241, 243; Collins v. Hartford Acci., Etc., Co., 178 Va. 501, 512, 17 S. E. 2d 413, 417; 1 Harrison on Wills and Administration, § 250 (4) (5).
It is to be presumed that the executors of Henry C. Roper’s will were advised of this rule and endeavored to follow it in the suit’they brought in which the decree of January 21, 1911, was entered, by which the court ordered the executors “to invest” the $9,500 in the purchase of the property and that it be conveyed to a trustee to be held “according to the terms and provisions of the will of the said Henry C. Roper, deceased.”
Pursuant to this decree the deed was made and the property was conveyed by the Love brothers to the trustee to be held “according to the hereinbefore mentioned terms and provisions of the will of the said Henry C. Roper, deceased.” The “hereinbefore mentioned” terms and provisions of the will were that Henry C. Roper had bequeathed to the Love Brothers $5,000 each “one to heir from the other,” and if they died leaving no heirs of their body, the $10,000 was to go to the other named nephews.
*271The appellants’ petition alleged alternatively that this deed of trust was made to indemnify the executors and save them harmless in turning this money over to the Loves if it should turn out, as it did, that they were entitled to it only for life.
Certainly the deed from the Loves to the trustee was a deed of trust. The trust expressed in it was that the property was to be held by the trustee according to the terms of the Roper will. Those terms were that if the contingency happened, i.e., if the Love brothers died without heirs, the $10,000 left to them was to go to the other five named nephews. The court holds that by this deed of trust the Loves substituted this property for the $10,000 and that the land conveyed by the deed in trust was to take the place of the money and pass as land under the will to those to whom the money was given. That decision must rest on the limited recitals of a decree entered in a suit in which no other papers have yet been found, and upon a deed of trust in which the terms of the trust stated are only that the property is to be held according to the terms of the will, and the terms of the will were that if the Love brothers died without heirs, the $10,000, not the property in which it had been invested by the executors, should go to the named nephews.
I disagree with the statement in the court’s opinion that before the appellants can establish a valid claim to the property described in the deed of trust, they must set aside or eliminate the decree of January 21, 1911. The question here is not whether it was a valid decree but what was the purpose of that decree and what was the trust upon which the property was conveyed to the trustee, whether to secure the payment of the money to those who would eventually become entitled to it, or, as claimed by the appellees and as held by the court, to substitute the land for the money. If the latter was intended, it would have been easy to say so in the decree and in the trust deed. The words used in the decree and in the trust deed do not say that and do not necessarily mean that.
As I see it, the terms of the trust upon which the Loves conveyed this property to the trustee are at least of doubtful meaning and in such case evidence is admissible to show the situation of the parties, the surrounding circumstances and the contemporaneous and subsequent acts of the parties in relation to the property involved to aid in determining what was meant by what was written. 19 Mich. Jur., Trusts and Trustees, §§ 17, 21; 90 C.J.S., Trusts, § 165, p. 34; 54 Am. Jur., Trusts, § 17, p. 34.
*272Evidence could disclose the kind and character of the property, give some idea of its value now and probably at the date of the trust deed, and show other facts and circumstances that would be helpful in determining whether the purpose of the deed of trust was to secure the payment of the money given by the will to the ultimate legatees, or whether the property, which now rents for $3,000 a year, was intended to take the place of the $10,000 and passed under the will to those who were given the money.
I would reverse the decree and remand the case for the taking of proper evidence.
Eggleston, J., joins in this dissent.