Of course, the effect of this was to leave the debt for rent subsequently accrued in favor of Timberlake's committee, to which it had been improperly applied, unpaid and unsecured; and the commissioner while upon the subject says that this unsecured debt is probably barred by the statute of limitations. To this report of the commissioner an exception was taken by Timberlake's committee, in the following words:

"Fourth Exception. Commissioner on page 10, arbitrarily and without authority, decides that certain payments made by Mr. Hay in his lifetime should not have been made by him, and, taking this amount from one debt, he applies it to another, and then decides that the latter debt is paid, after which he suggests that this debt so robbed of its payment is probably barred. E. J. Cross, M. W. Timberlake's committee, and Geo. P. Haw except, and E. A. Saunders and Thomas Pollard concede the correctness of this exception. The fact is the debt is not barred, and whethe it is or not is a matter the commissioner had nothing to do with."

The fact that Thomas Pollard concurred in that exception is relied upon in argument as committing him to the correctness of the application of the credit to the unsecured debt of Timberlake's committee, and as estopping him to ask for or to receive any benefit from the decree based upon a report which he himself had, by this exception, admitted to be wrong.

Without going into questions which might arise for discussion in the consideration of this subject, we shall content ourselves with saying that the exception nowhere commits Thomas Pollard to the proposition that the application of the $1,003 to the unsecured debt was proper. The exception seems to be pointed at the conclusion stated by the commissioner that the unsecured debt, the payment of which was held to be improper, is barred by limitation, and that is the proposi tion for which Saunders and Pollard conceded the correctness. This appears to be the case from the body of the exception, but is put beyond doubt by the last clause, which says: "The fact is the debt is not barred, and whether it is or not is a matter the commissioner had nothing to do with."

Upon the whole case, we are of opinion that the Grove tract was conveyed to secure the payment of debts, among others that due to the appellants; that when this tract was sold by the grantor, Fleming Hay, and the proceeds came into his hands and those of his counsel for distribution, they were impressed with the trust which rested upon the farm; that neither Hay nor Pollard, without the consent of the creditors secured, had any authority to divert any part of the proceeds to the payment of any other debt of the grantor until all the debts secured had been satisfied, unless they acted under the authority or with the consent, express or implied, of the parties interested, and that this record furnishes no authority for such appropriation.

We are further of opinion that, while the rights of the creditors secured must be protected, the appropriation made by direction of Fleming Hay should be disturbed only to the extent that it may be necessary for that purpose. Whether it will be necessary to recall the whole or only a part of the diverted fund is a matter of detail, which may require the report of a commissioner, and which can be more satisfactorily dealt with in the chancery court.

The decree appealed from is affirmed, and the cause remanded for further proceedings to be had therein not inconsistent with this opinion.

(106 Va. 683)

MCCURDY v. O'ROURKE. (Supreme Court of Appeals of Virginia. March 14, 1907. Rehearing Denied.)

WILLS-CONSTRUCTION.

Testator devised to one son certain property for life, remainder to his children, if any, the property to otherwise pass to a trustee in trust for testator's second son, upon the trusts declared in the next item of the will, which item devised certain other property to the trustee, the latter out of the rents to pay to said second son $600 per year while unmarried, or, if married, $1,200 per year for the balance of his life. The surplus, if any, above such sums was to be invested; the principal and interest with the real estate to pass to the children, if any, of such second son. In case of his decease without children, the trust estate was to pass to the first son for life, remainder to his children, and, in case both sons died without issue, the whole estate was to pass to certain nephews of testator. The will further provided that the second son should have no power to sell, incumber, or anticipate the payment of his annuity. Held that, on the death of the first son without issue, the real estate devised to him for life passed to the trustee and became part of the trust, subject to be administered upon precisely the same trusts, and hence the annuity to the second son was not increased.

Appeal from Chancery Court of Richmond. Proceedings by Michael J. O'Rourke against H. A. McCurdy, substituted trustee, for the construction of the will of Jeremiah O'Rourke, deceased. From a decree of the chancery court of the city of Richmond, said trustee appeals. Reversed.

Cannon & Cannon, for appellant. A. K. & D. H. Leake, for appellee.

HARRISON, J. Jeremiah O'Rourke died In 1894, having first made his last will and testament, which was duly admitted to record in the chancery court of the city of Richmond. The testator left surviving him two sons, Edward C. O'Rourke and Michael J. O'Rourke, and the object of this proceeding is to have determined the rights of Michael under this will.

It is necessary to a proper understanding of the question at issue that the second and third clauses of the will be set forth here. They are as follows:

"Item 2. I devise to my said son Edward my house and lot on the north side of Broad street in said city, No. 208, between Jefferson and Madison streets nearest to Jefferson

street-also two houses and lots on east side of Seventh street, between Marshall and Clay streets in said city, also my house and lot on the north side of Catharine street between Smith and Munford streets in said city, all to be held by him for life only, with remainder in fee simple to the children of my said son Edward living at his death, and to the children of any deceased child of his living at his death-but the children of any such deceased child to take only their parent's share-but if my said son Edward shall not at his death leave surviving him any child or descendants of any child, then the real estate devised in this item of my will shall pass to John Kain in trust, to be held by him in trust for Michael J. O'Rourke my son, and for the children of said Michael, upon precisely the same trusts as those declared in the next or third (3) item of my will. "Item 3. I devise to John Kain of said city, upon the trusts hereinafter in this item of my will set forth and declared, the following real estate, in said city of Richmond, as follows-to wit:

"My house and lot on the north side of Broad street in said city, No. 210, between Jefferson and Madison streets, nearest to Madison street-also four houses and lots on the south side of Marshall street in said city, between Madison and Monroe streetsalso two houses and lots on the east side of Monroe street between Broad and Marshall streets in said city. Upon the following trusts, to wit: That the said John Kain shall rent out and lease the said real estate hereby devised to him and shall collect and receive the rents and issues and profits thereof; and shall out of said rents, issues, and profits pay annually, the insurance, taxes, charges, and assessments on said real estate, and also his annual commission on receipts, and for all such repairs to said real estate as may be necessary in his judgment to make from time to time-and out of the net balance remaining from the rents and receipts of said real estate, he the said trustee shall during each and every year pay over to my son, Michael J. O'Rourke, the sum of six hundred dollars per annum, during the life of my said son Michael J. O'Rourke, or until his marriage; and the remainder of such receipts shall be invested by said trustee, each and every year until the death or marriage of my said son, Michael J. O'Rourke, whichever shall happen first, in interest bearing bonds of the city of Richmond, Va.; such investments to constitute when made a part of the trust fund or subject. In the event of the marriage of my said son Michael J. O'Rourke, the said trustee from and after his said marriage, shall during each and every year thereafter during the life of said Michael J. O'Rourke pay to him the sum of twelve hundred dollars per annum out of said net receipts, if the said net receipts shall amount to so much; and if the net receipts shall not amount to so much, in any year, then he shall pay

to said Michael J. O'Rourke so much of said net receipts for that year as there may bethe net receipts over and above the said twelve hundred dollars, in any year, shall be invested in interest bearing bonds of the city of Richmond aforesaid, in the manner hereinbefore provided.

"Inasmuch as this provision in favor of my said son Michael J. O'Rourke, is made for the sole purpose of providing him, with a maintenance and support during his natural life, I hereby declare that my said son Michael J. O'Rourke shall have no power to sell, or incumber, or anticipate the payment of said annuity; and that the same shall not in any manner whatsoever be liable for the payment of any debt he may now owe or which he may hereafter contract.

"The said annuity may be paid by the said trustee in monthly or quarterly installments as he may deem best; at the death of said Michael J. O'Rourke the real estate in this item of will as above described, and any bonds of the city of Richmond which may be added to the trust fund, as before provided for, shall pass to such of the children of said Michael J. O'Rourke as may be living at his death, and to the descendants of any deceased child of his, in fee simple free from any trust; the descendants of any such deceased child to take the share their parent would have taken. But if at the death of the said Michael J. O'Rourke, he shall leave no child, nor descendant of any child of his, surviving him, then the whole of the trust subject including said real estate, shall descend and pass to my son Edward C. O'Rourke for his life, if the said Edward be then liv. ing, with remainder in fee simple to the chil dren of the said Edward living at his death, and to the children of any deceased child of his living at his death, precisely in the same manner as provided for in respect to the real estate devised in the second item of my will."

By the fourth clause of his will, the testator provides that, if at the death of the survivor of his two sons there should be living no child or descendant of any child of either, then the estate devised by the second and third clauses of his will shall pass to the children of his uncle, Thomas O'Rourke.

On the 21st of October, 1900, Edward C. O'Rourke died without children or the descendants of any children, and thereupon the real estate mentioned in the second clause of the will passed to the management and control of the appellant, who is the successor to the trustee named in the third clause.

In October, 1901, the appellant filed the bill in this cause, asking the guidance of the chancery court in the management of his trust, continuing, under the advice of counsel, to pay, as he had done theretofore, to Michael J. O'Rourke the sum of $50 per month, or at the rate of $600 per annum, as the amount he was entitled to receive under the terms of his father's will. In March,

by the falling in of Edward's estate, was, in the contemplation of the testator, ample to have furnished Michael with a larger annuity than $600; for the testator provides that after paying Michael the surplus shall be invested by the trustee in Richmond City bonds each and every year, such investments to constitute, when made, "a part of the trust fund or subject." There is no indication here of a purpose at any time to increase the annuity in question. On the contrary, there is a declared purpose to use the surplus income, after paying the $600 to Michael, to increase the trust fund from year to year for the benefit of the ultimate objects of the testator's bounty.

The argument is made that under this construction of the will Michael would derive no benefit from the second clause, whereas it is there provided that, in the event of Edward's death without descendants, the estate devised should pass to the trustee named in the third clause, to be held by him in trust for the benefit of Michael, and for the children of Michael.

The enlarged trust fund brought about by the death of Edward without descendants furnishes a greatly increased guaranty of the annuity provided for Michael of $600 before marriage, and $1,200 after marriage. It further assures a greatly increased estate for Michael's children, should he have any. But, apart from those considerations, it is sufficient to say that the testator has in clear and explicit terms fixed the amount that he deemed sufficient for the sole purpose of maintaining Michael during his natural life, and the courts have no power to either increase or diminish that allowance. In this connection it may be remarked that when the testator created the trust established by the third clause of his will he had already provided that, in the event of Edward dying without descendants, the estate devised in the second clause should pass to the trustee named in the third clause; and yet, with a full knowledge that the trust fund might he increased by the happening of the events mentioned in the second clause, he deliberately declared, in fixing the amount of the annuity for Michael, that his sole purpose was to provide Michael with a maintenance during his natural life.

The testator has, it seems to me, throughout his will, expressed his purpose with unusual clearness, and it must be presumed that if he had intended, upon the death of Edward without descendents, that Michael should have for a maintenance twice the sum clearly stated by him to be sufficient for that purpose, he would have expressed so radical a departure in terms, at least as clear as those employed by him thereafter in fixing the rights of Michael in the trust he had created. The limitation over to the children of his uncle, as well as the previous limitation of Michael's trust estate to Edward's children, and Edward's portion over to Mi

chael's children, shows, I think, quite conclusively that the testator had in mind, after providing what he considered an ample support for Michael, to accumulate an estate out of the surplus income which would ultimately vest in fee simple in those of his own kindred, rather than have it dissipated by a spendthrift son.

In seeking the intention of the testator, which is to be gathered from the language he has used, I have not overlooked the principle that the law does not favor the accumulation of estates, and will in doubtful cases so construe a will as to bring about the immediate vesting of the estate disposed of. When, however, the intention of the testator is, as it seems to me here, clear and explicit, the courts are bound to carry out such intention, provided only that the purposes sought to be attained are not in conflict with the law of the land.

I am of opinion that the petition filed by the appellee, Michael J. O'Rourke, should have been dismissed.

For these reasons, the decree appealed from must be reversed, and the cause re manded, for further proceedings not in conflict with this opinion.

(106 Va. 572)

COONS v. COONS. (Supreme Court of Appeals of Virginia. March 14, 1907.)

1. APPEAL SUBSEQUENT APPEAL-QUESTIONS CONCLUDED.

In a suit to set aside an award of arbitrators appointed on a controversy over accounts between the parties, it appeared on appeal that the testimony was voluminous and conflicting. and that the award should be set aside because of irregularities in proceedings of the arbitrators, and the cause was remanded with instructions to refer to a commissioner to ascertain in what property, real or personal, the parties were jointly interested, and to settle accounts between them. Held, that the decree on appeal was not an adjudication as to the existence or nonexistence of joint property.

2. PARTNERSHIP-CREATION OF RELATION.

An agreement or contract to form a partnership is, as between the parties to the partnership. an essential element of the relation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, §§ 1-4.]

3. SAME LIABILITIES AS TO THIRD PERSONS -ESTOPPEL TO DENY PARTNERSHIP.

A partnership may exist without an agreement to that effect between the partners, where they have held themselves out and dealt with the public so as to estop the members of the firm from denying its existence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, § 10.]

4. TRUSTS RESULTING TRUST-PAYMENT Or CONSIDERATION FOR CONVEYANCE TO ANOTHER-TIME OF PAYMENT.

Though where land is purchased and paid for by one person, and the conveyance is taken to another, a resulting trust is raised, payment or advance of the money before or at the time of the purchase is indispensable, and a subsequent payment cannot, by relation, attach a trust to the original purchase.

[Ed. Note. For cases in point, see Cent. Dig vol. 47, Trusts, § 109.]

5. WORK AND LABOR - SERVICES BETWEEN PERSONS IN FAMILY RELATION.

Where persons live together as members of the same family, the law implies no promise of remuneration for services rendered to each other.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Work and Labor, § 111⁄2.]

6. SAME-EVIDENCE-SUFFICIENCY.

In a suit to recover on a quantum meruit for services rendered, evidence held insufficient to afford any basis to determine the compensation.

Appeal from Circuit Court, Culpeper County.

Bill by J. W. Coons against H. C. Coons to set aside an award of arbitrators and to enjoin the prosecution by defendant of an action of covenant on the award. Defendant filed an answer and cross-bill seeking affirmative relief, and appealed from a judgment dismissing the bill, which judgment was reversed (28 S. E. 885), and the cause remanded for reference to a commissioner in chancery to settle accounts between the parties. Decree in favor of H. C. Coons, and J. W. Coons appeals. Modified and rendered.

L. L. Lewis and Grimsley & Miller, for appellant. Barbour & Rixey, for appellee.

KEITH, P. The case before us is the sequel to that reported in 95 Va. 434, 28 S. E. 885, 64 Am. St. Rep. 804. The decree of this court remanded the cause with instruction to refer it to a commissioner in chancery to ascertain in what property, real and personal, J. W. and H. C. Coons were jointly interested on the 27th of May, 1892, and to state and settle all joint accounts existing between them at that date; the commissioner to consider so much of the evidence set out in the record as might be pertinent to the inquiry directed, and any other evidence that the parties might desire to present.

The cause was, by the circuit court, referred to one of its commissioners, Mr. Burnett Miller, who reported that the evidence had convinced him that "H. C. Coons has no legal demand upon J. W. Coons, either for a division of the property now held by J. W. Coons, nor any legal right to demand of J. W. Coons anything in the way of wages; and the evidence further discloses the fact that, upon a statement of the money accounts between the same parties, H. C. Coons is indebted to J. W. Coons in the sum of $398.73❘ with interest from the 27th day of May, 1892." He further reports that in his opinlon no partnership existed between H. C. Coons and J. W. Coons.

When this report came before the court, it decreed that J. W. Coons and H. C. Coons were not jointly interested in any property, real or personal, on the 27th day of May, 1892, and without at that time passing upon any other question, and without confirming the report, the cause was recommitted to one of the commissioners to make further inquiry and report as to any joint accounts existing between the parties on the date aforesaid.

56 S.E.-37

This decree was executed by Mr. E. S. Turner, one of the commissioners of the circuit court of Fauquier, and he being of opinion that the court, by its decree of the 10th of November, 1900, had decided that H. C. Coons and J. W. Coons were not jointly interested in any property, real or personal, and therefore meant to decide against the contention of H. C. Coons that a partnership existed between him and his brother, J. W. Coons, did not undertake to settle a partnership account, and being of opinion that the statute of limitations applied to the previous items of claim for wages, but allowing that claim for three years before the institution of the suit, to wit, from May 27, 1889, to May 27, 1892, found a balance due on that account, principal and interest, from J. W. Coons to H. C. Coons, of $1,213.42. The commissioner, however, says that, in making up the account of wages, he does not mean to pass upon the legal question whether J. W. Coons can be held liable for such wages under the circumstances; that "the testimony nowhere shows the promise to pay such wages, but, on the contrary, the contention of H. C. Coons was not that he was an hireling, but that he and his brother were partners and joint owners, and there is no testimony whatever in the record tending to establish a direct promise upon the part of J. W. Coons to pay wages." The legal proposition as to whether, under the circumstances disclosed in this case, there is an implied promise or undertaking to pay for the services rendered, is left by the commissioner to the court for determination.

When this report came before the court, it was excepted to by both plaintiff and defendant, and on the 24th of February, 1903, a decree was entered construing the decree of November 10, 1900, and declaring that the court did not intend to pass upon the question of the existence or nonexistence of a partnership between the plaintiff and defendant, as assumed by the commissioner, and recommitted the report to Commissioner Turner to state and settle all joint accounts existing between J. W. Coons and H. C. Coons on the 27th of May, 1892.

In obedience to this decree, the commis. sioner returned his report of March 12, 1903, in which he states an account which he designates as a joint account between J. W. and H. C. Coons, referred to in his report as the "purely moneyed account," in which he finds that J. W. Coons is indebted to H. C. Coons upon that account in the sum of $75.92. He reports that upon the evidence he considers it as established that a partnership did exist between J. W. Coons and H. C Coons, and that H. C. Coons is entitled to receive his share of the profits arising from this business, to which he contributed his time, his labor, and his skill; that to state the partnership account is a very difficult undertaking; that he has gone through the record time and again seeking to get from it