
    
      Laura E. Whilden, et. al. vs. Elias Whilden, Executor of E. Whilden, deceased, et. al.
    
    Heard before Chancellor Desaussuke, Charleston, January Term, 1837.
    ’ The case, for our consideration, arises under the last will and testament of the Into Mr. Elias Whildeu. It appears that he duly executed his last will and testament on the 16th June, 1835, and died soon after, leaving the same in full force. At the time pí his death, he left alive his wife, Laura, the complainant, and several children, by tier, who are minors ; also, several children by a former marriage, who arc of full age. The tes'ator, by his said will, bequeathed one thousand dollars to his wife, as soon as the money could be collected. Ho directed his whole estate, real and per-s -nah to bo so]!, and the money to bo laid out in bank stock, “for the support of my children, until my youngest child shall come to the age of tuei.t;, .one years, or get married : and then the money, to be equally divided between all my children, or their children, should they die before the youngest comes of age, or gets married.”
    Two questions grow out of this will. The first is, which of the children of the testator are entitled to the support to be drawn from the bank stock? It was contended for the minor children of the second marriage, that they were exclusively entitled to such sup. port,"because they alone stood in need of it ; the elder children, by the first marriage, being adults, and the females, married, and ha. ving been already, in some degree, provided tor by gifts from the father. On the other hand, it was argued for the elder children, that the provision made by the father for them, in his life time, was small; and that the text of the will is to govern — that the direction of the will — that the money should be laid out for the support of his children, includes all the children of the testator. This question was argued with consummate judgment, ingenuity, and learning, by the counsel on both sides. On a careful examination of all the circumstances of this case, the leaning of the court on this question, as far as it dares to have a leaning, is with the complainants.
    The elder children were grown up, and did not seem to stand in need of support; and the income was small, and not more than sufficient to support the numerous minor children. The postponement of the distribution of the estate, until the youngest child should come of age, or marry, and the provision of a former will, all lead the mind to the belief that the testator meant the income should be applied for the support exclusively of the minor children, who were otherwise entirely unprovided for, and not of the elder children, who had already been somewhat provided for. This impression is so strong, that it is with great difficulty I can forbear to yield to it. Yet I am recalled to the recollection, that I am construing the will of a testator, in doing which his intention makes the law of the case ; and that where he speaks distinctly, it is my duty to understand him in the plain sense which his words import ; and not to hunt for meanings ether than those expressed upon conjectural interpretations, founded upon circumsiances wholly extraneous to the will. That instrument says, “ th" moneys arising irom the sales from the real and personal estate, must be laid out in bank stock for the sup. port of my children.” The words, “ my children,” surely include all his children ; so to abridge it of that meaning, and to exclude the elder, or any class of his children, would be a violation of the plain words, and their common purport. It is true that there are many circumstances in this case, extraneous to the will, which have been pressed on the court, to lead the mind to the belief, that in the haste of drawing a will, by an unskilful pensman, for a dying man, some mistake may have been m tde, and that the testator did not mean to say “ my children,” but “ my children by my second mar. riage.” It would, however, be too*bold a departure from the letter of the will, and too dangerous a resort to extraneous circumstances, to control, and oven change, the disposition of the property. I am,' therefore, reluctantly, obliged to pronounce that the words of the will must prevail, according to their plain and common purport, and that all the children of the testator must have the benefit of this provision.
    The other question, on the case, relates to the dower claimed by the widow. It was argued for the defendants, that the bequest of one thousand dollars to the widow, was intended to be, and is in lieu and bar of dower. The widow is clearly entitled to her dower in the real estate of the testator. The question is, whether she is entitled to the legacy of one thousand dollars, as well as the dower, or should she be put to her election. The dower is a provision made, by law, for the support of the widow. A legacy is a provision made by affection, for the better support of the wife. There is scarcely any man owning real estate, who does not know, in fact, that his wife is entitled to dower in that estate, and the law implies the knowledge. The presumption, therefore, is, that when a testator bequeaths a legacy to his wife, he intends it as an addition to the legal provision of dower, unless he declares it to be in bar of dower, and she shall be entilled to both. But he may exclude her from claiming her dower, or put her to her election, by declaring that the legacy is intended to be in bar of dower. Clear as these rules appear to be, when stated in the abstract, there is a good deal of difficulty in the application of them to the great variety of cases, presenting very numerous combination of circumstances. In some of the books,Jt is said, that where the wife has two provisions, such as a legacy under her husband’s will, and her dower, She shall be, in most cases, put to her election. But this- is putting it quite too broadly — and I apprehend the true rule to be, that a. widow cannot be put to her election, unless by express declaration or necessary inference, arising from the inconsistency of her claim with the provisions of her husband’s will. See 2d Ves. jr., 572, French and Davis, 3 Ves., 349, Strahan and Sutton. 6 Vesey, 615, Greatore vs. Carey, it is not that there is an additional provision made for the wife, by the wd! of the husband, which deprives her Of dower, or puts her to her election, for, in many cases, she is entitled to both. See 2d Aik. 427, Cation vs. Hancock, where the estate devised to the wife was larger than the dower. So where in a will, the husband, taking no notice of the wife’s right of dower, made a provision for her out of the personal estate, by way of residue, she shall have both. See Ves. Sear, 230, Ayres vs. Willis, And this is the rule, even in case of a provision for a wife, by an annuity, which is considered a less sacred claim than dower, she shall have both. See 7 Brown’s Pari. Cases, 12, Broughton vs. Covington. See, also, 3 Bro. Ch. Cas, 347, Foster vs. Cobler. -See, too, 2d Sch. and Li-fr, 444, 449, Birminghan vs. Kirurn. The foundation of the rule of election, is, that a person cannot accept and reject the same instrument, and applies to every instrument, whether deed or will. But as the right of dower is a clear legal right, an intent to exclude that right must be demonstrated by express words, or by clear and manifest implication, and in order to exclude that right, the instrument must contain some provision inconsistent with the right to demand dower. There are many other authorities against putting the widow to her election. 2d Vern. 366, Lawrence vs. Lawrence, 1 Brown’s, P. 591. Atk. 535, lucledon vs. Northcole. 1 Bro. Ch. C. 292, Pearson vs. Pearson, 3 Bro. Ch. Cas. 409, Middleton vs. Cater and others. One case, indeed, in 2 Dickens, C65, aBrown vs. Perry, goes so far as to say that a devise to a wife must actually be expressed to be in bar of dower, to have that effect. That, however, is going beyond the rule, and proves only the extreme reluctance of the court to bar the widow’s dower, unless there be an express declaration, that the devise is intended to be in bar of dower, or such clear repugnance in the provision by will, as to raise a necessary presumption that it ivas so intended.
    There being no express declaration in the will, we are considering, we must examine whether the legacy of one thousand dob lars to tho widow, shows such an intent to exclude dower by plain and manifest intent. And certainly taken by itself, it docs not show such a manifest, intent.; else, in every case, any legacy to a wife, might be said to raise the same implication. But it was urged, in argument, that the claim of dower would defeat the other provisions of the will, which direct the solo of the real and personal estate, and the investment of the proceeds in hank stock, for the support of the children of the testator. It will, certainly, lessen the amount to be invested, so to form that fund, but it will uot defeat the arrangements and dispositions made by the testator. They may', and will, all he carried into effect, diminished only by a small amount which he, himself, carried out for his wife. For this direction to sell and invest, is after the legacy of one thousand dollars to the wife, showing that ho intended that amount to be first with, drawn from the fund, before the investment. It is not clear of difficulties, but to the best of my judgment, the widow is entitled to her dower, and the legacy.
    . It is, therefore, ordered and decreed, that the legacy of one thousand dollars be paid to the widow, out of (he sale oí the estate, and the amount o! the dower which may be assessed, and the balance arising from Ihe sales of the estate, invested by the executors for the suppoit of the children of the testator, until the youngost atT tains twenty-o,-e years, or marries, and then the principal to be distributed equally among the^ children, according to the will of the testator.
    HENRY W. DESAUSSURE.
    From the above decree, complainants appeal, on the ground, that according to the true construction of the testator’s will, the income of the estiite should be appropriated to ihe children of the last marriage, exclusively', until the youngest child reached maturity or day of marriage. And defendants appeal on the ground of the dower.
   Chancellor Harper

delivered the opinion of the court.

I do not think that this is one of Ihe cases in which parol evidence ought to be admitted. The authorities cited on the part of the defendants, I think, are sufficient to shew that this can only be done where the ambiguity is oí such a nature, that it would defeat the will, unless the testimony were received. Nor do I know that we should, by this means, arrive at the true intention of the testator. 1 think the intention may be gathered from the face of the -will — and such an intention as the testator would have acknowledged, if he could have been consulted on the subject.

• It was properly said on the part of the complainants, that this was not a devise of the income of the estate to the children, to be equally divided between them. It was merely the providing a fund but of which they might be supported. If the testator had said Slothing about the maintenance of the children, but had merely di» rected the estate to be vested till the youngest should come of age? or be married, the court would, of itself, have done just what he has expressed — it would have provided for the maintenance of the ¡children out of the income of the fund. He has not left it to the court, however, blit has directed it himself. Suppose the fund were large enough to produce an income more than double what' was required for the maintenance of the children, ¡can it be sup». posed that they would be entitled to divide the whole income, when nothing but maintenance is provided for ?

Then how is the fund to be supplied for their maintenance ? I answer according to their circumstances and necessities. In Rawlins vs. Goldfrap, 5 Ves. 440. the testator, after giving to his daughters for life, in the event of their death, leaving issue, gave a fund to apply so much as might be necessary to the maintenance of the children, with a further limitation over. One of the daughters died, leaving children. Their father had left them a large fortune-. The question was between them and the devisees over; whether' they should have the maintenance, or whether the interest should accumulate for the benefit of the devisees over. It was urged on the part of the children; that the grandfather intended to give maintenance to the children, in exoneration of the provision made for them fay their father. The master of the rolls; however, would not give them the whole income. He said they were entitled to “ as much only as they have a right to demand for maintenance and education, according to their situations; as much only as may be necessary, after all the appropriations for their benefit are exhausted, come from what quarter it may. They have no vested interest, at all, in the interest; nothing but what is wanted for their maintenance and education.” And he directed thé master to enquire what fortune they were entitled to, with liberty to apply for what might be necessary for maintenance and educations Now this is in point, if i have given a right interpretation to the words.

A direction for maintenance, means, of course, what may be necessary for maintenance. ’ In Maberly vs. Turton, 14 Ves. 499, there was a gift of eight thousand pounds, to accumulate for the benefit of children, with power to the trustees, with the approbation of the father and mother, or the survivor of them, or at the discretion of the trustees, after the death of the survivor, to apply the dividends, or any part thereof, to the maintenance of the children.The father got possession of the fund, as the executor of the sur* viving trustee, and applied to the court to be allowed maintenane®' for the children. The chancellor refers to the rule, that maintenance is not allowed out of the fortunes of children, if the father be of ability to maintain them ; and directed a reference to enquire-what would be reasonable, having regard to the situation, circumstances, and ability, of the father, and the fortunes of the children. There are other cases to the same point, and indeed the doctrine is well settled. By this means, the directions may be varied, from time to time, on the application of the parties, as their exigencies may require. If any, who have now such fortunes as to require-no maintenance, should meet with a reverse which should render it necessary, he may be allowed to come in.

Dunkin, for motion.

¡Memminger, contra.

Filed 21st March, 1837.

So far as respects the claim for dower, we do not think it necessary to add any thing to the opinion of the chancellor. His reasoning, and' the authorities referred to, amply sustain his conchr. sion.

It is ordered, that it be referred to the master or commissioner, to enquire and report, what will be a reasonable and proper allowance for the maintenance of each of the testator’s children ; and if the whole income of the estate be required for that purpose, how it ought to be apportioned among them. In every other respect, the decree is affirmed. The parties to be at liberty, from time to-time, for further directions;

WILLIAM HARPER.

We concur,

DAVID JOHNSON,

3. JOHNSTON-  