4

At the date of the contract in this case, to-wit: the 18th of October, 1871, the provision of the new constitution was in force, which declared that, "upon debts hereafter contracted, it shall be lawful to receive any rate of interest, not exceeding 12 per centum per annum, which may be agreed upon by the parties and be specified in the bond, note or other writing evidencing the debt. When there is no such agreement, the rate of interest shall be 6 per centum per annum for the use and forbearance of every hundred dollars." Const. art. X, sec. 22.

of the bill, is not the contract rate of 12 per | for cases in which there is no legal contract centum per annum, but the general rate to the contrary. prescribed by law of 6 per centum per annum. They admit that if the contract had expressly stipulated for the payment of interest at the rate of 12 per centum per annum, until payment, it would have been recoverable accordingly, because they admit, very properly, that such a contract would, at the date of said bill, have been lawful. But they contend, that while the contract is express for the payment of interest at the rate of 12 per cent. per annum from the date to the maturity of the bill, it is neither express nor implied for the payment of interest at that rate after such maturity; and, therefore, the general rate prescribed by law, of 6 per centum per annum, then applies to the case. Let us now inquire whether this view of the law be

correct or not.

There has yet been no express decision of the question by this court. But principles have recently been decided by this court in regard to the subject of interest which go very far towards the decision of the question, and seem to lead to that as a legitimate result. Roberts' adm'r v. Cocke, &c.; Murphy v. Gaskin's adm'r, 28 Gratt. 207; Cecil. Barrett, &c.; Linkous, assignee, v. Shafer; Garnand v. Childress; Kent's adm'r v. Kent's adm'r, recently decided, but not yet reported; except that the first two of the said cases have been reported in the Virginia Law Journal for March, 1877, pp. 168-178. See also Chapman's adm'rs v. Shepherd's adm'r, &c., 24 Gratt. 377, and Crenshaw v. Seigfried, Id. 272, referred to in the opinion of the court in the said first two cases above cited. In that opinion, which was delivered by Judge Burks, it was declared, that "in contracts for the payment of a certain sum of money, interest on the principal sum is a legal incident of the debt, and the right to it is founded on the presumed intention of the parties;" and that "wherever there is a contract, express or implied, for the payment of legal interest, the obligation of the contract extends, as well to the payment of

This declaration thus made in the two cases was afterwards reaffirmed in the other unreported cases above referred to, and may now be considered as the settled law of the land.

This provision of the constitution has been since abolished, but of course its abolition can have no effect upon a contract made under and in pursuance of it.

Now which rate of interest must we consider as an incident of the debt and as part of the contract in this case after the maturity of the debt; 12 per centum per annum, the rate expressed in the contract, at least as to the period between the date and the maturity of the *debt; or 6 per centum per annum, the rate prescribed by law, in the absence of an agreement for another and legal rate?

6

We are of opinion that interest at the rate of 12 per centum per annum, the rate expressed in the contract, must be considered as an incident of the debt and as part of the contract in this case, as well after the maturity of the debt as before such maturity; and not interest at the rate of 6 per centum per annum only.

It was as competent for these parties to agree upon 12 as upon 6 per centum per anuntil its payment; and we are of opinion num, as the rate of interest upon the debt that they did agree upon 12 and not upon 6

per centum per annum as the rate in this case. We think their contract ought to be construed precisely as if the words "till paid" had been inserted therein after the words "from date," and that such was their obvious meaning.

They no doubt omitted the words "till paid." because they considered it only necessary to agree on some legal rate of interest and the date from which it should com

the interest as it does to the payment of the principal sum, and neither the courts nor the juries ever had the arbitrary pow-mence, believing that it would, of course, 5 er to dispense *with the performance continue to run until payment. They never of such contract, either in whole or in could have intended that if default were part." made by the debtor in the payment of the debt at maturity, he should thereafter pay interest at only one-half of the rate he had agreed to pay for the period during which he had a right under the contract to withhold the principal. As it would have been perfectly lawful for the parties to have expressed the words "till paid" in their contract, if they had considered it necessary to have done so, to make their meaning plain to that effect, and as it is perfectly certain that they would have done so, if they had anticipated any default in payment, or any doubt or difficulty in regard to the liability of the debtor for the contract rate of interest till payment in case of such default; can there be any doubt that such was the mean

Interest, then, being an incident of a debt dre by contract in the absence of a stipulation in the contract to the contrary, is as much a part of the debt as the principal itself; and the only question is, at what rate is the interest, after the maturity of the debt, to be computed in this case, at the rate of 12 per cent. per annum, at which the loan was expressly made for six months, or at the rate of 6 per centum per annum, the general tate of interest prescribed by law

7

ing, it not the very words of the contract? The use of money is a valuable consideration. In the absence of legislation on the subject, the parties to a loan might fix the rate of interest at their pleasure. The general rate has been fixed by the legislation at 6 per centum per annum; at the date of the contract in question, the parties were authorized to agree upon a rate not exceeding 12 per centum per annum. In this case they agreed on that rate; no doubt because the money, at that time and under the circumstances which then existed, was considered to be worth interest at that rate, both to the lender and the borrower; and they stipulated accordingly, agreeing and expecting, no doubt, that, at the end of six months, the principal and interest would be paid by the borrower to the lender, to be used by the latter as might be most to his interest. The borrower made default and withheld both principal and interest after they became payable. There is no evidence of the extent of the loss on the side of the lender, or gain on the side of the borrower,

not provide for or direct their removal from the state, was valid.

2. Same-Legacies to a Class.-Testator gives by his will to his widow four slaves by name during her life; and he emancipates them at her death, and gives to each of them by name a legacy. The widow lives until 1875. Though the slaves were emancipated by the results of the war years before the ueath of the widow, yet the legacies having been, not to a class, but to the legatees by name, they are entitled to the legacies.

3. Same-Construction.*—The intention of a testator is not to be collected from any isolated clause, but from the whole will. Nor can clear and unambiguous provisions in one part of the instrument be controlled by mere inference and argument from general or ambiguous provisions in other parts of the instrument.

4. Undue Influence. For what is meant by the phrase "undue influence," see the opinion of STAPLES, J.

This case was pending in the court at Wytheville, and was argued at that place, but was decided by the court at Staunton.

John A. Simmerman, of the county of Wythe, died in the year 1853, leaving a widow and one child, Mary Ann G., who was then married to John P. M. Simmerman. He left a will which was duly admitted to probate, and Robert Crockett qualified as his executor. 10

which has resulted from this default. Is it right to let the borrower, who could not obtain the money for six months, at a less rate than 12 per cent. per annum, have it for an indefinite period thereafter at half that rate against the will of the lender? Would one man in a hundred have supposed that this default in paying his debt at ma*The 2d, 3d, 4th, 5th and 6th clauses turity would entitle him to withhold the of the will are as follows: principal indefinitely thereafter at one-half "2d. I give to my wife, Margaret Simof the contract rate of interest for the merman, during her widowhood, and if she agreed period of the loan? Would not every remained a widow during her life, all that man expect that in case of default he would portion of my real estate on which I now be liable for the same rate of interest as reside, together with that portion acquired long as he continued in default? And must by purchase of my brothers, Wm. Simmerwe not consider that to have been the agree-man, Jos. Simmerman, Arehart Simmerman, ment and understanding of the parties in such an event?

*Wills-Construction.-In Withers

v. Sims, 80 Va. 662, the principal case is cited for the prop

A great many cases have been cited by osition that although the will must be read as a whole, the counsel of both sides, in their printed a clear and unambiguous provision cannot be conarguments in this case. They trolled by mere inference and argument from any *are conflicting; and it may be doubt-general or ambiguous provisions in other parts of the ful on which side is the preponderance instrument. Citing also, Rayfield V.

8

Gaines, 17

Same-Undue Influence.-In Carter v. Carter, 82 Va. 1, the principal case is cited for the definition of undue influence. See also, Nicholas Kershner, 20 W. Va. 254.

in numbers. But we consider it unnecessary Gratt. 1.
to review them in detail, or even to repeat
the citations here. We have examined all
or most of them which were accessible to
us, and they have not affected the views to
which we have been brought by an exami-
nation and consideration of our own con-
stitution and statutes, and decisions on the
subject.

Upon the whole, we are of opinion that there is no error in the judgment, and that it ought to be affirmed.

Judgment affirmed.

*Simmerman v. Songer & als.

September Term, 1877, Staunton. Absent, MONCURE, P., and ANDERSON, J. 1. Wills-Emancipation of Slaves-Validity. The emancipation of slaves by will which did

V.

Testamentary Capacity-Family Physician's Testimony.-In Shacklett v. Roller, 97 Va. 648, the court says of a family physician's testimony as to a testator's capacity, "Physicians, as this court has so often said, are considered as occupying a high grade on such questions, both because they are generally men of cultivated minds and observation, and because, from education and pursuits, they are supposed to have turned their attention more particularly to such subjects, and therefore to be able to discriminate more accurately, especially a family physician who has attended the patient through the disease which is supposed to have disabled his mind.” Citing the principal case, and Burton v. Scott, 3 Rand, 399, 403; Parramore v. Taylor, 11 Gratt. 220, 228; Cheatham v. Hatcher, 30 Gratt. 56; Montague v. Allan, 78 Va. 592; C. & O. R. R. Co. v. Mosby, 93

Va. 93.

14

Kent, Blair & Crockett, for the appellant.
W. H. Bolling, for the appellees.

Staples, J., delivered the opinion of the

court.

The first ground of defence relied upon in the court below by the appellants, is that at the period of the testator's death, it was not otherwise without at the same time making competent to emancipate slaves by will or provision for their removal from the commonwealth. And as no such provision was take effect; and as a necessary consequence made in this case, the emancipation did not the legatees were incapable of taking the legacies bequeathed them. This ground was very properly abandoned by counsel in the the laws then in force, no slave emanciargument here, for although, according to pated since 1806, or thereafter, was permitted to remain in the state more than one year after being twenty-one years of age without lawful permission, it was not required that the owner should make provision for the removal of such slaves as a prerequisite to the exercise of a valid act of emancipation. Code of 1849, chap. 104, sec. 9; chap. 107, sec. 2.

their services for life, had consumed a large of this court for an appeal; which was alportion of the personalty bequeathed to her, lowed. and in an equal degree perhaps had wasted the land devised to her for life. This land, however, embracing some six or seven hundred acres with valuable buildings, was yet of an annual value, which could not have fallen short of say five or six hundred dollars; and of personal property embracing horses, cat tle, hogs, sheep and supplies, she was still in possession of a large amount. At that time she had then lost in a very large measure, and shortly afterwards wholly lost the use of her mind for all purposes of business, becoming in short and literally an unresisting prey for the plundering schemes and practices of those around her, and especially of her late domestics and servants, and most especially of the plaintiff, Martha, and her children and son-in-law. These latter, it is sober truth to say, fairly rioted in the spoil; pretending to remain in her service and take care of her during her life as contemplated in said will, they in fact took possession of her *property and of herself and appropriated both to their own use during the entire period from the fall of the Confederacy until her death, in the same manner and to the same extent as if both had in fact belonged to them, except only that they allowed the poor old woman food, clothes and lodging all of the very plainest. And respondent claims that they thus became responsible to her estate either as bailiff or as her trustees ex maleficio, and are liable to a decree of this court for an account of these receipts and payment of the same deducting for wages; or failing to render such account satisfactorily, then to be decreed to pay a fairly estimated compensation for their said use of said property. Estimated either way such decree, respondent is sure, must at least equal the amount bequeathed to them, and he is advised he is entitled in this suit to have the same ascertained and set off against said legacies. And he says that his wife Mary Ann G. Simmerman is the only heir and distributee of her mother and entitled

to her estate.

A great mass of testimony was taken having reference to the capacity of Mrs. Simmerman the widow, the treatment of her by the plaintiffs, her contracts with them, and the waste of her property; which it is utterly impossible to state. The view of it taken by this court will be seen in the opinion delivered by Judge Staples.

The cause came on to be heard on the 29th of December, 1876, when the court held that there was nothing in the record to deprive the plaintiffs of their legacies under the will of John A. Simmerman, deceased; and that they were within the character and description of the legatees. And it was decreed that the plaintiffs recover against Crockett, the executor, the several amounts and legacies bequeathed them respectively in said will, out of the estate of his testator in his hands to be administered; that is to say to &c., &c. From this decree John *P. M. Simmerman applied to a judge

15

The second ground of defence relied upon is, that Martha and her three children were entitled to the legacies given them only in the event that Mrs. Simmerman, the testator's widow, married again, and as that event did not happen, the legacies did not take effect. This argument would equally prove that the testator did not intend to emancipate the slaves in question except upon the contingency of the marriage 16 of his widow. And the learned coun

sel has argued that such is the proper construction of the will. It is plain, however, that this is not the meaning of the testator. His intention was that his widow should have control of Martha and her three children during her life; and at her death they should be free. He was willing that she should have such control even though she might marry again, but he was not willing that any other person after her death should exercise dominion over them. The intention of the testator is not to be collected from any isolated clause, but from the whole will. Nor can clear and unambiguous provisions in one part of the instrument be controlled by mere inference and argument from general or ambiguous provisions in other parts of the instrument. Rayfield and wife v. Gaines et als., 17 Gratt. 1.

If in this case the second clause of the will presented the slightest difficulty, that difficulty is removed by the sixth, wherein the testator gives to his daughter, Mary Ann G. Simmerman, all the money on hand at his death, together with all debts due him by note or account, "except the amounts devised to my wife, Margaret Simmerman, and my slaves, Martha and her three Children, Charles, Mary and Adam. My intention as that the amount devised to my slaves

above mentioned, shall be paid to them at the death of my wife; at which time they are to be free." It would be difficult to use language more explicit or comprehensive. Considering this clause in connection with the other provisions of the will, it is apparent it was the purpose of the testator that at the death of his widow, these, his favorite slaves, should have their freedom, and the legacies bequeathed them; and that neither one nor the other should be made to depend upon so uncertain and improbable an event as her marriage.

17

*The third and main ground of the defence relied upon in the court below, is that the legacies in controversy were given to the persons named on the implied condition, that at the death of the widow they should answer the description and character given to them in the will; that is to say they should be persons emancipated by the will, and should have been slaves and serving the widow as such down to the period of her death; whereas the appellees derived their title to freedom from the government of the United States, and did not serve the widow as slaves, but in the capacity of freedmen and tenants under contract.

named, yet if he does not bear the character and sustain the relation to the testator set forth in the will, and which induced the bequest, he cannot take the legacy. The principle of the cases cited by Judge Bouldin in this connection, is, that if a legacy is given to a person by name, which has been falsely assumed, or if the testator is in any other way imposed upon and induced by a supposed relationship to make a gift which he otherwise probably would not or might not have done, the court will, upon the ground of fraud, hold the bequest inoperative and void. have no just application to a case like the It is very obvious that this principle can will and answers fully the description given present, where the legatee is named in the of him therein; but his status is subsequently changed by a power over which he has All that was said, or intended. in Johns v. no control, and which he is unable to resist. Scott, was that under the peculiar circum stances of that case, the character in which garded as the essence of the bequest; and in the legatees should claim was to be rethat aspect the principle which should con

class of cases were the supposed relationship was believed to be the sole motive of the gift. The testator had emancipated all

trol was the same in effect established in the

19

his slaves at the death of his daughter; *but she was entitled to them dur

ing her life. He very naturally supposed their services would amply compensate her for the fund set apart out of his estate to pay the legacy bequeathed them at the period of their emancipation. It was therefore a that if the testator had known the legatees very reasonable presumption would not remain his slaves, and render to his wife and daughter the services required of them, but would assert their freedom outside the will, and thus disturb its provisions to the great loss of the first objects of his bounty, he would have made no attempt to provide for them. This view was confirmed by the further fact that the legacy given the slaves in that case was to be expended mainly in their removal to some distant state or country, and only the residue to be distributed among them in their new homes. The primary intent of the testator was therefore defeated by the emancipation under the authority of the Federal government, and the continued residence of the legatees in the state. In Johns v. Scott, therefore, it might well be said that the character in which the legatees should claim was the essence of the bequest.

One of the cases cited in support of this position, is that of Johns v. Scott, 23 Gratt. 704. As this case is relied on with much confidence, it becomes necessary to examine it with some care, in order to understand what were the precise points decided. It will be seen that the decision was placed mainly upon the ground that as none of the legatees were named in the will, all idea of mere individual benefit was excluded; and as a class of persons only was provided for by the will to answer a certain description and character pointed out in unmistakable terms by the testator himself. it was incumbent upon the claimants of the legacy to bring that class within these terms before they could successfully assert a title to the legacy. Judge Bouldin, who delivered the opinion of the court, lays marked stress upon the peculiar language of the will, in providing that the claimants of the legacy were to be the testator's freedmen, his slaves emancipated by him under his will, and were to remain slaves, and as such to serve the testator's wife and daughter, until the death of the survivor. So far from answering this description, the appellees claimed their freedom under another and higher power, and against the will. The event on which their claim to the legacy de18 pended had *not then occurred. The There is, however, another class of cases testator's daughter was still alive, and quite distinct from those cited by Judge might live for many years. Before she died Bouldin, which, though establishing a difany one of the persons then claiming a leg-ferent rule, are entirely consistent with the acy dependent on that event, might themselves be dead. These citations will sufficiently show the grounds upon which the opinion in Johns v. Scott rested.

It is very true that Judge Bouldin, towards the conclusion of the opinion, adverts to another rule of law which he supposes had some bearing upon the case. That rule is. that although the legatees be the person

latter. They are cases in which the legatees being named, errors in the description were determined not to vitiate the legacies. as not being essential, and on the presumption that personal affection might have been ingredients in the bequests; which errors would not have induced the testator to withhold his bounty, had he been acquainted with all the circumstances of the case; a presumption