#### *Fairfax v. Fairfax’s Ex’or.

April Term, 1850,

Richmond.

1. Executors — Qualification — Refusal to Permit-Appeal as of Right.—To the judgment of a County court refusing to permit a person named as executor in a will, to qualify as such without giving security, an appeal demandable as of right, lies to the Circuit court.

2. Same—Bond—Necessity for—Case at Bar.—A testator appointed his wife and son executrix and executor of his will; and expressing his confidence in them, directed that they should be permitted to qualify without giving security. Some years afterwards, he added a codicil, by which he says: I further appoint X H. ex’or to the within will, with my wife and son. Held: X H. is not entitled to qualify without giving security.-*

3. Same—Same—Intention of Testator—Parol Evidence. —Quíe»e: If in such case parol testimony is admissible to shew the intention of the testator.

The principal case is cited in Amiss v. Williamson, 17 W. Va. 679. See generally, monographic *note*on “Executors and Administrators.”

*27Henry Fairfax, of Prince William county, made his will, by which, after giving small legacies to several of his children, he gave the residue of his estate to his wife for her life, and at her death, to his son John Walter and his daughter Martha Eindsay, for their lives, with remainder to their children, and cross remainders over. Among the legacies given, was one to his daughter Sarah Ann, the wife of Dr. James Hunter, of Fairfax county, of 300 dollars per annum, for her own private *use during her life, and a negro girl, *Mary; and*after her death, the *negro*girl with her increase, was to go to Mrs. Hunter’s children, if she had any, and if she died without children, to the children of the testator’s daughter Elizabeth.

The last clause of his will was as follows : “I hereby nominate and appoint my wife Elizabeth and my son John Walter executrix and executor; John to qualify at the age of twenty-one years. And I appoint Benjamin Johnson my trustee; and in case of the death of the said Benjamin Johnson, X appoint John P. Philips of Fauquier county, in his place, trustee of this my last will and testament. And I hereby desire that as I have implicit confidence in them, and in their prudence,and in my trustee’s honesty, and the estate owing nothing more than there is ample provision made by me to pay off, and for all legacies that I have given, by interest on stocks that will be coming in every year, to pay them off, that no security shall be required from them; but if my said wife shall marry again, then I direct that she shall give sufficient security for the true performance of the trusts appertaining thereto according.”

This will bears date the 21st of September 1840; and there was added to it the following codicil:

“I further appoint Dr. James Hunter, of Fairfax county, executor to the within will, with my wife and son John.” This codicil bears date the 22d of September 1846.

This paper was offered for probat in the County court of Prince William, in November 1847; and there being no subscribing witnesses thereto, it was admitted to probat upon proof that it was wholly in the handwriting of the testator.

At the June term 1848, of the County court of Prince William, James Hunter, one of the executors named in the codicil of the will, moved the Court to '^'permit him to qualify as executor of the said will without giving security. This motion was opposed by John W. Fair-fax, by his guardian ad litem, and by Martha E. Fairfax, and Benjamin Johnson the trustee; and the Court being of opinion that the said James Hunter ought not to be permitted to qualify as executor as aforesaid without giving bond and security conditioned as the law directs, overruled and rejected the motion, and refused to permit him to qualify unless he would give bond with sufficient security according to law. And from this opinion and judgment of the Court, Xlunter took an appeal to the Circuit court of Prince William.

The case came on to be heard in the Circuit court of Prince William in October 1848, when in addition to the transcript of the record of the cause from the County court, the appellant Hunter introduced several witnesses, by whom the following facts were proved, viz: The testator’s estate was estimated at one hundred and seventy-five or two hundred thousand dollars, of which the personal estate amounted to 120,000 dollars ; and he owed few or no debts. His wife had been suffering from an attack of paralysis for three or four years before his death, and died about a month after he did, between fifty and sixty years of age. The testator’s son John was, at the death of his father, a minor, but would attain twenty-one years of age in June 1849. Dr. Hunter married the testator’s daughter, Sarah Ann, in 1838. When the will was written in September 1840, he and the testator were not on friendly terms, and they did not visit. Afterwards, on the illness of John Walter ^Fairfax, Dr. Hunter was sent for, and attended him ; and subsequently, attended the daughter Martha and Mrs. Fairfax. John, after his recovery, studied medicine with Hunter, and lived in his family. Dr. Hunter was represented by the witnesses, as highly respectable, and much esteemed in the county of Fairfax, where he ^'resided; and prudent in the management of his affairs. His circumstances were limited; his property being estimated at between five and seven thousand dollars; but he was entirely unembarrassed in his circumstances. The witnesses expressed the opinion, that he would not be able to give the security necessary to be given by an executor of the testator.

The Circuit court held, that by the true construction of the will and codicil of the testator, taken in connexion with the facts proved by the witnesses, the testator intended that the appellant, Hunter, should act as his executor in like manner, and on like terms as his wife and son, who were appointed executor and executrix, and were to qualify as such without giving security. The judgment of the County court was, therefore, reversed and annulled with costs; and the cause was remanded to said Court with instructions to permit Hunter to qualify as executor upon his executing his bond without sureties, in such sum as should be fixed by the Court, with the usual condition. From this judgment, *28John W. Fairfax applied for, and obtained an appeal to this Court.

John M. Patton, jr., for the appellant.

The act Supp. Rev. Code, ch. 158, *\*1, p. 215, in relation to the qualification of executors, directs that they shall give bond and security with condition for- the faithful performance of their duties. To this general provision, the statute makes but one exception ; and that is where the testator directs that the executor shall qualify without giving security, and the security of creditors and legatees does not, in the opinion of the Court, render security necessary. This act, too, provides that in determining whether security is necessary, the court may act on its own knowledge. The act thus gives the rule and the exception; and the party who claims the benefit of the exception must bring himself clearly within it.

*Het us look, then, first to the will, to see whether the appellee, Hunter, is within the exception. The will provides distinctly, that the testator’s wife and son shall qualify as executrix and executor without giving security; and states the grounds on which he makes that provision; his confidence in them. The codicil certainly does not in terms, direct that Hunter shall qualify without giving security. The whole foundation of the argument in his favour, is the single word “with.” The testator appoints Hunter executor of his will with his wife and son. The word is in common use, and invariably means “together,” “in company.” Give it that meaning here, and there is no want of sense in the sentence; nor is it inoperative. Hunter will be a joint executor with the wife and son. But to give the codicil the effect of dispensing with security on the part of Hunter, the sense of the word is not to be changed, but other words must be interpolated; and the codicil must be read as if the words “on the same terms” preceded “with.” It is true that, to give meaning to a sentence which has none, or to effectuate the obvious intent of the testator as manifested by other parts of his will, words will be interpolated; yet I submit, that no authority can be found for thus amending a sentence, which, of itself, expresses a plain, sensible, operative meaning, for the purpose of giving to the testator an intent which is nowhere else discoverable in his will. And this is still less excusable -when, as we see, the testator was fully informed of the necessity of expressing the intention if he entertained it, and knew well how to do it.

If, then, the will and codicil do not sustain the pretension of the appellee, is it aided by the parol evidence? I shall not enter into any minute examination of that evidence. It certainly has no direct bearing upon the question in issue; and the' only use which can be made of it is as a foundation for the inferences that *the testator must have known that Hunter could not give the necessary security; and that he was deserving of the testator’s confidence. But the last inference conflicts with the first. If he was entitled to the confidence of the testator, the testator might well believe that he so possessed the confidence of others that he would find no difSculty in giving the necessary security. But I submit that such inferences are much too vague and unsatisfactory to be adopted as the basis of the Court’s action; especially on a subject which the legislature has guarded with so much anxious care.

But if the parol testimony was as strong in favour of the pretension of the appellee as he could desire, I submit it could have no influence upon the judgment of the court; because it was improperly admitted in evidence. The principle is too well settled upon authority to be now a subject of discussion, that parol evidence is only admissible to explain a latent ambiguity, such as the person or thing intended, or the circumstances of the testator at the time the will was made. Here, there is no latent ambiguity in this codicil; and the testimony has no relation to the circumstances of the testator when the codicil was written. I refer the court for the law on this subject, to Jarm. on Wills 349, 382; 1 Greenl. Evi. 410, note 415, 418, 419; Puller’s ex’or v. Puller, 3 Rand. 88; Miars v. Bedgood, 9 Eeigh 361, 368, 373; 2 Homax Ex’ors 11.

I submit, in conclusion, that the Circuit court had no authority to revise the judgment of the county court. The act which has been before cited, provides that the probat court may act upon its own knowledge in refusing to permit an executor to qualify without giving security, where the testator has dispensed with it. Therefore, even if the testator had directed that Hunter should be permitted to qualify without giving security, it was competent for the County court to refuse the permission; and that upon grounds derived from their own ^knowledge. In this case, the ground of the refusal is not stated upon the record; and as it is the judgment of a Court having jurisdiction of the subject, that judgment will be presumed to be right.

Robinson, for the appellee.

The statute gives the absolute right of appeal in such cases as this from the County to the Circuit court. The case goes up precisely as it was in the County courtj and the Circuit court may pass upon all matters of law and fact involved in the cause. It is against all the analogies of the law, to suppose that it is intended the judgment of the County court shall be final. At least in such cases, the record should shew that the grounds of the judgment were such as cannot be reviewed by the appellate tribunal.

There is no question that the statute does authorize a testator to direct that his executor shall qualify without giving security. And if this testator has so directed, then there is just as little question that under the facts of this case, the executor should *29have been permitted to qualify without security: the estate is ample; the executor, Hunter, is a man of high character, and no fraud in him, or danger to creditors or legatees, is suggested on the record.

There is no doubt either, that the testator directs that his widow and son shall be permitted to qualify without giving security. Now the statute obviously contemplates a general authority by the testator to his *executors*to qualify without security. The testator may possibly make a distinction between the executors; but this is not to be presumed, and is not probable.

The office of a codicil is not to set aside the will, but to vary or explain it; and the will is not to be disturbed further than is absolutely necessary to carry into effect the provisions of the codicil. Jarm. on Wills 160. When the will of Henry Fairfax was made, his wife *and son were appointed executrix and executor thereof. Afterwards, by a codicil, the testator appointed Hunter an executor with his wife and son. This provision of the codicil is to be read as if it was introduced in the clause of the will appointing executors. Read the two clauses thus together, and without adding or taking away a word, it is obvious that the provision, as to the security, applies to all the executors.

No case precisely like this in its facts, is to be found in the Hnglish books; but it is easy to find cases which are similar in principle. Thus, in Jarm. on Wills 161, the case is given of a devise to A, subject to a rent charged to B; and a revocation by a codicil, of the devise to A, and the devise thereof to another without noticing the rent charge: And it was held that the second devisee took the land subject to the rent charge. There, though nothing was said in the codicil about the rent charge, yet it was held to exist as to the new devise. So here, the appointment of a new executor by the codicil, is to be considered as made in pursuance of the provisions of the will. So where a legacy was given upon certain contingencies, and by a codicil a legacy was given “in addition,” it was held to be subject to the same contingencies. Jarm. on Wills 16S.

In the case before the *Court*the word “further” is used, which is in effect the same as the words “in addition;” and if “further” had been substituted for these words in the case referred to, the construction of the clause would have been the same. But the words “with my wife and son” must necessarily be construed to mean on the same terms.

So where, by a codicil, a trustee was appointed in place of one named in the will who had a legacy fixed on land, it was held that the substituted trustee took in the same way. Jarm. on Wills 168. Suppose Hunter had been appointed in the place of the testator’s wife and son; under the principle of this last case, the ^provision as to security would certainly apply; and is a distinction to be made because, he is appointed with them?

| This construction of the codicil is sus- ' tained by the parol evidence, which goes strongly to shew that the testator intended Hunter to qualify without giving security. With this intention he wrote the codicil, and did not doubt, plain man as he was, when he directed that Hunter should qualify with his wife and son, that he would be understood to say that he should qualify in the same wray. We see that when he wanted to provide that his wife should give security in the event of her marriage, he directed it in explicit terms.

The parol testimony introduced in this case is not liable to the objection made to its competency. It is not offered to contradict the will, but to shew the circumstances, situation and relations of the parties, so as to explain what the testator meant by the words which he used; and for this purpose it -was admissible. Kennon v. M’Roberts, 1 Wash. 96; Shelton v. Shelton, Id. 53; Hamletts v. Hamlett’s ex’or, 12 Heigh 350; Trent v. Trent, Gilm. 174; Powell on Hev. 488-9.

Whatever may be the result in this case, the appellee should not be subjected to costs ; they should be paid out of the estate. Grant v. Heslie, 1 Hng. Heel. R. 373; Dean v. Russel, Id. 411, in note.

John M. Patton, sr., in reply.

As to the costs of this Court there can be no question, as the statute allows no | discretion. This, too, is the case as to the costs of the Circuit court; and as to those of the County court they are de minimis.

The question in this case is, -whether the executor shall be permitted to qualify without giving security. This is a mere personal privilege. The whole object is to j get the commissions; for the wife was dead; the whole estate is given to the son and daughter; the son *would be of age within six months, and qualified as executor about the time the appeal in the case was allowed. It is therefore a personal matter entirely; and if the appellee shall fail in his object, it is entirely proper that he shall pay the costs of the proceeding.

But let us come to the consideration of the case. First, then, Was the judgment of the County court open to revision by the Circuit court. This is not a question about the probat of a will, or the right of an executor to qualify; the will has been admitted to probat without question, and nobody disputes the right of Hunter to qualify as executor. If, therefore, the Court had stated the ground of its judgment, it is questionable whether, under the statute, there was an absolute right of appeal. But however that be, it is clear that where a case is submitted to the discretion of the justices upon grounds peculiar to themselves, there can be no appeal from their judgment; especially when the ground of their judgment is not stated on the record. By the act Supp. Rev. Code, p. 216, § 2, the Court is authorized, when the testator directs it, to allow an executor to qualify without giving security, unless they shall *30see cause from their own knowledge or the suggestion of creditors or legatees to suspect fraud. Suppose the order of the Court had said, that from their own knowledge, or from the suggestion of creditors or legatees, they suspected fraud; would that be a matter, either of law or fact, that an appellate Court could review? Not as a matter of law, certainly; for the act authorizes it; not of fact, because, from the nature of the case, it is impossible to review it. Could you interrogate the Judge of the probat Court as to the ground of his suspicions; and then consider whether the ground is sufficient to warrant the suspicion?

If such a judgment, thus stating the grounds on which it is made, is not examinable by an appellate Court, then is not this general judgment equally beyond *the review of such a Court? Nvery Court having jurisdiction of a subject must be presumed to have acted correctly. This has been lately decided by this Court in a very strong case. Carpenter v. Utz, 4 Gratt. 270. Then the judgment of the County court in this case must be presumed to be correct, if there be any ground out of the will, and resting in the knowledge of that Court, upon which it maj>- be sustained. It is said that there is no suggestion of fraud. Why was there not a suggestion that there was no fraud? Here is a judgment; and there is a ground not negatived which will sustain the judgment; and therefore it must be sustained.

Our law has carefully provided against the dilapidation of the estates of cestuis que trust by trustees. The act Supp. Rev. Code, p. 115, 1, requires all executors to give security. The second section authorizes an exemption where the testator directs it, provided creditors and legatees are not thereby endangered. The counsel on the other side suggests that the law does not provide for exempting some of the executors without the others; but he admits the testator may do this. He seems to infer that where some are exempted, the others will be considered as exempted, unless it clearly appears that the testator did not so intend. I have referred to our statute to shew that such exemption should be made by clear provision of the will, and not left as a matter of inference or doubt. Here we are considering a case on a will which appoints Hunter executor, without exempting him from the obligation to give security, and it is argued that he is exempted because others are exempted. But, on the contrary, does not the maxim apply, expressio unius est ex-clusio alterius?

Counsel seems to suppose that great aid to his case is derived from the fact that the appointment of Hunter is by a codicil, and that of the other executors is by *the will. I concur in the principle which he has stated: a codicil is only to add to or vary the will. When it adds to the will, each is to be construed separately. When it varies the will, they are to be construed together, so as to give full effect to the codicil; but it is not to disturb the will further than is necessary to give it full effect. Then what is the effect of this codicil? It does not disturb the appointment of executors made by the will, but only adds another. The first are exempted by the will from the obligation to give security; the codicil does not exempt the last from this obligation.

It is said that the testator was a plain man, and wrote the codicil. That is true; and he wrote the will too; and that was before him at the moment when he wrote the codicil; and this Court is asked to say, that though he has not used a word that is not natural on our construction, yet he meant something else; and to make out this something, other words are to be added.

It is said the word “further” is an important word in this codicil. Why, the will had been made by the testator; and if he was to do any thing more'he must go further; and he uses exactly the language which would have been proper if he had made this codicil the last clause of his will, where it must be considered to be, if it is read with the will. So, too, the words, “with my wife and son,” are relied on to sustain the pretension of the appellee. The testator had before appointed .them, and did not intend to revoke their appointment, but to appoint Hunter to be an executor with them. The argument, is just as strong to prove that the testator revoked the exemption as to the wife and son, as it is to prove that he exempted Hunter.

There is no doubt that the testator might have exempted Hunter from the obligation to give security; nobody questions that; and if he had written the codicil *as the counsel for the appellee reads it, it would have had that effect. The" counsel assumes the testator intended to exempt the appellee, and then reads to effect it; though the provision as to the wife and son is founded on the expressed confidence of the testator in them, and though no such confidence in Hunter is expressed. And indeed the reading of the counsel would effect the same object, though the words “further” and “with my wife and son,” had been omitted.

It is said that the reasoning of the counsel is sustained by cases very analogous in principle to this; and we are referred to Jarm. on Wills 161, 165, 168. These authorities only carry out the principle that the will is not revoked further than is necessary to give full effect to the codicil. If the question before us was, whether the exemption in favour of the wife and son had been revoked, these cases would have been apposite to repel such a conclusion ; but an examination of them will shew that they have no bearing upon the question before the Court.

But there are other analogies, which I submit are much more apposite to this case. On the question, whether legacies substituted by codicil for legacies in a will, were to be free from legacy duties, because the first were, it is held that it must clearly appear that such was the intention of the *31testator. Jarm. on Wills 167. May I not say that here are cases apposite and a fortiori? We have not merely substituted legacies, but a provision for a third person ; not a case in which we are to look for the intention of the testator, but in which we have the statute which expressly declares that the executor shall give security, unless he is expressly exempted.

There is no case in which parol evidence Í has been admitted to prove what the testator intended, where there was no ambiguity in what was said, or as to the person or thing spoken of. Some dicta may have *gone further, but no respectable authority does. The strongest case is Miars v. Bedgood, 9 Leigh 361; and yet there the evidence was excluded. The dissenting Judges rested on the ground that there was an ambiguity, and on that ground were for admitting the evidence. In Puller v. Puller, 3 Rand. 88, all the Judges said that the testimony was inadmissible to shew what the testator meant by the phrase “used,” except to shew what was the condition of the estate. These cases are in entire accordance with the third proposition of Wigram on Wills, p. 14. In conclusion, I refer to this same work, p. 29, 30, 31, 32, 43, 44, 48, 50, 51.

*

Supp. Rev. Code, ch. 158, § *2,*p. 316. “But where any testator or testatrix shall' leave visible estate, more than sufficient to pay all his or her debts, and by his will shall direct, that his or her executors shall not be obliged to give security, in that cage, no *27security shall be required, unless the Court shall see cause, from their own knowledge, or the suggestions of creditors or legatees, to suspect the executors of fraud; or that the personal, as well as the real estate, by the said will devised to he sold, when the same maybe subjected to the payment of debts, will not be sufficient to discharge all the debts, and shall require security, when the same shall be given before a certificate shall be granted, notwithstanding any directions to the contrary in the will.”

DANIEL, J.,

delivered the opinion of the Court.

By the 30th section of the act establishing the Circuit Superior courts of law and chancery, it is declared that appeals to the said Courts shall be demandable as of right from sentences or orders of the County courts, in controversies concerning the probat of wills and letters of administration. And by the second section of the act, entitled “An act to amend the act, entitled ‘an act reducing into one the several acts concerning wills, the distribution of intestates’ estates, and the duty of executors and administrators. ’ ” Supp. Rev. Code, p. 216, it is declared that when any testator or testatrix shall leave visible estate more than sufficient to pay all his or her debts, and by will shall direct that his or her executors shall not be obliged to give security, in that case no security shall be required, unless the Court shall see cause, from their own knowledge or the suggestions of creditors or legatees, to suspect the executors of fraud. The controversy in this case is one concerning ‘ ‘ letters of administration and the terms in which the right of appeal from the orders or sentences of the County courts in such controversies is given, are general. No exception is made of the case *wherein the controversy turns on the question, whether an executor shall be permitted to qualify without giving security; and it would seem, therefore, incumbent on those who deny the right of appeal in such case, to shew, either that the law, as to such case, is repealed by some other, or that the question involved in the controversy is of such a nature as to preclude the jjossibility of its being properly re-examined by the Superior court. There is no suggestion that the law in relation to the right of appeal has been expressly repealed in the particular above mentioned, by any other statute; but it is urged by the counsel of the appellant in argument here, that the County court may have acted on its own knowledge or the suggestions of creditors ; that such grounds of decision are from their very nature incapable of a review by the Superior court; and that the Superior court was bound to presume, in the absence of record evidence to the contrary, if so to presume was necessary in order to sustain the sentence of the County court, that the said last mentioned Court did act, either on its own knowledge or the suggestion of creditors.

This Court is, however, of opinion, that, even supposing the decision of a County court in such case, based on its own knowledge or the suggestions of creditors, were incapable of review by the Superior court, in order to deprive said Court of a right to re-examine the question involved in the controversy, it must appear from the record that the County court did proceed on such grounds. The party complaining of a sentence of the County court from which the law has given an appeal, demandable as of right, is not bound to shew to the Superior court that such sentence was erroneous, in order to entitle him to a review of it by the latter. It is enough for him to shew that he is interested in and a party to the controversy, and that he has complied with the condition of the statute providing *for a faithful prosecution of his appeal. He cannot be deprived of the right to have his case reheard by the Superior court, *by*the suggestion that the sentence or order of which he complains may have been based on grounds which, if they had been made to appear on the record, it would be seen did not admit of re-examination.

The Court is, however, further of opinion, that there is nothing in such grounds of decision rendering them incapable of review by the Superior court, when properly brought before it; that the Circuit court properly took cognizance of the appeal in this case, and was bound, upon a full view of all the questions of law and of fact bearing on it, to decide whether the executor should be permitted to qualify without giving security.

It is manifest from the record of the proceedings of the Circuit court, that the whole controversy in that Court turned simply on the question, whether the testator had by his will directed that his executor, the appellee Hunter, should not be required to give security. A question has been raised, whether the parol testimony offered on the trial of the case in the Superior Court was properly admitted. This Court does not deem it at all necessary to enquire under what circumstances and to what extent such evidence may be resorted to for the purpose of explaining the intentions of a testator; inasmuch as, whether the will and codicil be consulted alone, or read in *32connexion with the other evidence offered, the meaning and purpose of the testator in this case are equally manifest. The Court is of opinion that the testator did not intend that the appellee should be permitted to qualify without giving security; and therefore that the Circuit court erred in reversing the sentence of the County court refusing to permit him to qualify, except on the condition of giving bond and security. The Court is therefore of ^opinion to reverse the sentence of the Circuit court with costs, and to affirm that of the county court.

BROOKE and BALDWIN, Js., said they thought the whole merits of the case were before the Circuit court de novo, and that the judgment of that Court was right.