1. As to the portion of his property
which a testator gives to his daughter S,
he directs that his executors shall hold it
in trust, and manage and deal out the
proceeds thereof for her and family as
their necessities may require.-HELD:
The executors, as trustees of S, may use
the proceeds arising from sales and col-
lections, as well as from rents and profits,
as in their discretion the necessities of
said S and her family may require. They
may give her possession of the property,
or they may purchase for her such pro-
perty as they may deem necessary for the
use of herself and family, or to enable her
to cultivate or improve the real estate de-
vised to her, and to erect suitable build-
ings upon the real estate, so as to enable
her to reside upon and cultivate it. And
they will not be responsible for any per-
sonal property which in their discretion
they may put in the possession of said S,
and which may be wasted or lost while in
her possession. And they may sell and
use or reinvest, as in their judgment the
necessities of said S and her family may
require.

Lewis v. Henry's ex'ors & als., 192
2. T, an executor, employs R to sell a
tract of land for him, and to facilitate it,
T executes a deed to R, but does not de-
liver it. R makes a sale to B, and B pays
the money to T, and then T delivers the
deed to R, and at the same time R exe-
cutes a deed to B. In a suit by a judg-
ment creditor of R against B to subject
the land to pay his debt.-HELD:

1. By the conveyance to R there was
an implied or resulting trust in favor of
B, who had paid the purchase money;
and this trust may be proved by parol
evidence.

Borst v. Nalle & als.,
423
2. The trust having been fully exe-
cuted by R conveying the land to B,
VOL. XXVIII-127

before this litigation was commenced,
it seems that on that ground parol evi-
dence is admissible to establish the
trust.
Idem, 423

3. A deed of trust on land to secure a
debt, leaving the place of sale to the dis-
cretion of the trustee, he has authority to
sell the land outside of the state at any
place he in his discretion may select.
And the question is, whether he exer-
cised that discretion fairly and prudently;
in other words, whether he committed a
breach of trust.

Shurtz &als. v. Johnson & als.,657
4. The deed conveys land subject to a
prior lien, the prior lien being certain and
ascertained, the trustee may sell the equity
of redemption.
Idem, 657

5. The deed of trust having been taken
without any notice to the trustee or credi-
tor of the existence of judgments re-
covered against the grantor in a county
other than that in which the land lies,
and the deed having been recorded before
the judgments were docketed in the
county, the lien of the judgments were
subsequent to that of the deed of trust,
and presented no objection to the sale.

Idem, 657

6. A canal boat, which plied between
Richmond and a point in Fluvanna
county, was owned by T, who resided in
said county. He sold the boat to C, who
lived in Richmond, and took a mortgage
thereon to secure the purchase money;
which mortgage he forthwith recorded in
Fluvanna county, and within twelve
months thereafter in Richmond. Between
the dates of the recordation of the mort-
gage in the two places, judgment credi-
tors of C issued fieri facias, under which
the boat was seized at Richmond. Upon
a bill by T's adm'x to assert her (alleged)
prior lien.-HELD: That the mortgage in
favor of her intestate was properly re-
corded, and she had priority.

Lucado & als. v. Tutwiler's
adm'x & als.,

VENDOR AND PURCHASER.

39

In 1856 L sells land to T by parol
contract, receives all the purchase money,
and puts T into possession. In January
1867 L executes a deed to T, by which
he releases all his claim to the land, and
warrants the title. T then sells the land
to W, and W conveys to F. In March
1866 B recovers a judgment against L,

which is docketed within the year. In a
suit against F to subject the land to satisfy
the judgment against L.-HELD:

1. That the registry acts do not ap-
ply to a parol contract for land; and T
having paid all the purchase money,
and having been put into possession, so
that he had a valid equitable title to
the land, it is not subject to the lien of
the judgment against L.

Floyd, trustee, v. Harding &
als.,

401
2. The valid equitable title of T is
not so merged in the legal title ac-
quired by the deed of L to him as to
subject the land to the lien of the judg-
ment against L.
Idem, 401
3. The principles of the case of With-
ers v. Carter, 4 Gratt. 407, approved.
Idem, 401
2. R by a verbal contract sells a house
and lot to M, who pays all the purchase
money and is put into possession. R has
no interest in the property which may be
subjected by attachment against him as
an absent debtor to the payment of his
debt. Hicks v. Riddick & als.,

3. See Attachment, No 3, and

Idem,

418

418
4. Where a tract of land was conveyed
jointly to J and R, and about the same
time J agreed to sell his moiety thereof
to R for a certain price, and under and in
pursuance of said agreement R took and
held exclusive and undisturbed possession
of said land for twenty-eight years, made
valuable improvements thereon, and paid
to J the agreed price for his moiety, it
was held that a bill filed by J for parti-
tion must be dismissed, and that R had
acquired a full equitable title, which the
court would enforce by compelling J to
make a conveyance of the legal title.

Rhea v. Jordan,

678
5. Where the vendor's lien is retained
in a contract for the sale of land, though
the contract is not recorded, the vendor's
lien has priority to that of the judgment
creditors of the vendee.

Shipe, Cloud & Co. v. Repass
&als.,

716

WILLS.

1. A paper disposing of property to M
and S, sisters of testatrix, is not in the
handwriting of testatrix or signed by her.
Twenty years after the date of this paper
she writes about an inch below the first
and signs the following: As M is dead, I
give her share to my niece G.-HELD:
Neither nor both together can be estab-
lished as a will under the Virginia stat-
ute, Code of 1873, ch. 118, s. 4.
Gibson v. Gibson & als.,
2. See Conditions, No. 1, Advance-
ments, No. 1, and

44

Lewis v. Henry's ex'ors & als., 192
3. Testator by five separate clauses of
his will gives to each of his five daugh-
ters by name, certain personal property,
"to her and her heirs forever." By the
ninth clause he gave all the balance of
his estate, both real and personal, to be
equally divided among his children before
named, which he lends to them during
their lives, and at their death to be equal-
ly divided among their children; "but
should either or any of his daughters die
without an heir of their own body, it is
his will that all the property loaned or
given them be equally divided among his
grandchildren."-HELD: The daughters
each take the certain property given them
in the five clauses absolutely; and their
right thereto is not cut down or restricted
by the concluding provision of the ninth
clause; that only applies to the property
embraced in that clause.

Barksdale & als. v. White &

all the issues by the plaintiff, with a know-
ledge at the time of the objection to his
competency.
After the testimony is
ended plaintiff excepts to the competency
of each of them, on the ground that I was
dead.-HELD:

1. The plaintiff having cross-ex-
amined C on all the issues in the cause,
that was a waiver of the objection to
his competency; and it cannot after-
wards be made.

Hord's adm'r v. Colbert & als., 49
2. Quere: If permitting the exami-
nation of W in chief, without objection
before it is done, is a waiver of the ob-
jection to his competency.

Idem,

49

2. Whenever the character of a witness
for truth is attacked, either by direct evi-
dence of want of truth, or by cross-ex-
amination, or by proof of contradictory
statements in regard to material facts, or
by disproving by other witnesses material
facts stated by him, or, in general, when-
ever his character for truth is impeached
in any way known to the law, the party
calling him may sustain him by evidence
of his general reputation for truth.

George &als. v. Pilcher & als., 299
3. In an action on a bond by the assig
nee of a deceased obligee, the obligors
are incompetent witnesses to testify in
their own behalf under the statute Code
of 1873, ch. 172, 8 22.

Grigsby &als. v. Simpson, as-
signee,
348
4. An executor who conveys land with
special warranty, who is not a party to the
suit, and has no interest in the result of
it, or in the record as an instrument of
evidence, is a competent witness to prove
facts in relation to his sale and convey-
ance of the land, in a contest between the
creditor of his grantee and a purchaser
from him.

Borst v. Nalle & als.,

423

5. T, an executor, employs R to sell a
tract of land for him; and to facilitate it,

T executes to R a deed, but does not de-
liver it. R makes a sale to B, and B pays
the purchase money to T; and then T
delivers the deed to R, and at the same
time R executes a deed to B. In a suit
by a judgment creditor of R against B,
to subject the land to the payment of his
debt.-HELD:

1. Tis a competent witness to prove
that R sold as his agent, that the con-
veyance to him was that he might con-
vey to B, and that B paid the purchase
money to T.
Idem,
423

2. By the conveyance to R there
was an implied or resulting trust in fa-
vor of B, who had paid the purchase
money; and this trust may be proved
by parol evidence. Idem, 423

3. The trust having been fully exe-
cuted by R conveying the land to B
before this litigation commenced, it
seems that on that ground parol evi-
dence is admissible to establish the
trust.
Idem, 423

4. R being dead, B is not a compe.
tent witness on his own behalf as to
the sale and conveyance of the pro-
perty.
Idem, 423

6. The testimony of a witness for the
plaintiff is objected to by the defendant,
because the witness had sold and rented
from the landlord of the defendant the
land in dispute by deed under seal; and
he cannot disparage the title which the
witness had so acknowledged.— HELD:
Though that would be good ground for
not permitting him to deny the title of his
landlord in an action against him for rent
or possession, it certainly is not good
ground for his incompetency to deny that
fact in a controversy between other par-
ties, in which he has no interest.

Bartley v. McKinney,

750

7. A witness intended to state the facts
according to the best of his knowledge
or understanding and belief. It will be
so presumed in the absence of evidence
to the contrary.
Idem, 750