
    *Roneys v. Roneys.
    January, 1836,
    Richmond.
    (Absent Cabell, J.)
    Wills — Construction—Case at Bar. — Testator gives his lands and slaves and other personalty to his wife for life or widowhood, in order to support and bring up her children ; desiring her to share out to each on coming of age, such part as should be convenient, in order to keep them along ; remainder, after the wife’s death or marriage, as to the land, to the testator’s five sons or such of them as shall be then living, and as to the slaves and other personalty, to his nine children, sons and daughters, or such of them as shall be then living; the widow lends to one son coming of age, slaves about equal to an aliquot share ; but th at son dies before the widow, and then she dies : Held, the son acquired no absolute title to the slaves so lent to him, but on the widow’s death, they with all the rest of the personalty devolved to the children of the testator who survived her.
    
      Thomas Roney, late of Dimviddie, by his last will and testament, after making some specific devises and bequests, devised and bequeathed as follows: “X will and require that my wife Rebecca Roney shall have the use and profits of all and every part or parts of my estate, be it of what nature or kind soever, not before disposed of, for and during her widowhood, in order to support and bring up her children, desiring that she shall share out such part to each child as they shall come of age as shall seem most convenient, in order to keep them along, making them as equal as she can; and after her right therein ends, my will and desire is, that the said land shall be equally divided among my five sons, Patrick, Thomas, Benjamin, Tucker and Isaac Roney, or so many of them as shall be then living, to them and their heirs forever. It is my will and desire, that all the other part or parts of my estate of every kind as above mentioned to my said wife, shall, after her right therein, be equally divided among the following of my children, ^namely, John, Patsey, Robert, Patrick, Thomas, Benjamin, Tucker, Polly and Isaac Roney, or so many of them as shall be then living.” The testator’s widow Rebecca, whom he appointed executrix of his will, took probat thereof, and took possession of the whole real and personal property thereby devised and bequeathed to her for and during her widowhood. The testator’s son, Thomas Roney the younger, having attained to full age, the widow and executrix put into his possession five slaves, which before his death increased to ten. He died before his mother, leaving a widow, Mary Roney, and two infant children, Emeline and Elizabeth Roney. His brother Robert Roney took administration of his estate, and delivered back the ten slaves to the testator’s widow and executrix, who held them till her death. She died not long afterwards, intestate. The only children of the testator living at her death, were Robert, Patrick, Isaac and Polly Roney. Isaac Roney took administration of their mother Rebecca’s estate.
    The widow and infant children of Thomas Roney the younger, exhibited a bill in the superiour court of chancery of Richmond, against Robert, Patrick, Isaac and Polly Roney, and Isaac as the administrator of Rebecca Roney, setting forth the will of Thomas Roney the elder, and the facts above stated, alleging, that the slaves, which that testator’s widow and executrix had delivered to Thomas the younger, upon his attainment to full age, were only an equal portion of the testator’s slave property, which he was then entitled to receive, and were accordingly delivered to him by his mother, as his absolute property, and they and their increase were claimed and held by him as his absolute property, ever afterwards, till his death ; but that the defendants, claiming as the only children of the testator, Thomas Roney the elder, who survived his widow, had, after her death, divided those slaves among themselves, as well as all the other personal estate of that testator: insisting, *that those ten slaves, at least, were the property of Thomas the younger, and the plaintiffs were entitled to distribution thereof as his estate; and further, that upon the true construction of the will of Thomas the elder, the heirs of Thomas the younger, notwithstanding his death before the widow, were entitled to an equal share of the real estate with the other sons to whom it was devised in remainder, and his distrib-utees entitled to an equal share of all the slaves and other personal estate of the testator with the other children to whom the same was bequeathed in remainder: and praying, therefore, a decree for the ten slaves and their increase and profits, and for their just and equal share of all the other personal estate of Thomas the elder, and of the real estate devised by him to his five sons in remainder, and an account and division of Rebecca Roney’s estate.
    The defendants, in their answers, alleged, that Rebecca Roney only lent the slaves in question to her son Thomas when he attained to full age ; but that, whatever her intention in putting them into his possession, might have been, she had no right to give him those slaves in absolute property, for that by the will of Thomas the elder, those slaves and all his other personal estate passed, at her death, to the children of that testator, who were then living; and that as to the real estate devised to the five sons in remainder, that also passed to Patrick and Isaac Roney, the only two of the five devisees, who survived their mother.
    There was parol evidence in the cause, in respect to the delivery of the slaves by the widow to her son Thomas in his lifetime; the weight of which, in the opinion of this court, was, that the son always considered that he held the property on loan from his mother.
    The chancellor declared, that the five slaves delivered by the widow to Thomas Roney the younger in his lifetime, and their increase, were his absolute property, *which devolved to his administrator, as assets for payment of his debts, and for distribution among the plaintiffs, but that the plaintiffs were not entitled to any share of any other part, of the testator Thomas the elder’s estates, real or personal: therefore, he decreed, that those slaves and their increase should be delivered to the plaintiffs, to be by them held as part of Thomas the younger’s estate; and he directed accounts of the profits of the slaves in question since the death of Thomas the younger, and of Robert Roney’s administration of his estate, and of Isaac Roney’s administration of Rebecca Ro-ney’s estate.
    The defendants applied by petition to this court, for an appeal from the decree, which was allowed.
    Robinson, for the appellants.
    Spooner, for the appellees.
   CARR, J.

In the construction of wills, we must always keep in mind, that the property is the testator’s own; that his control over it is only limited by the law; that he may give it in equal or unequal. portions among his children, or disinherit, at his will or caprice, any or all of them. We are not to make up our opinion as to what seems to us a just distribution, and then bend the will to suit our own conceptions; but to ascertain from his words, the meaning' of the testator, and make that our law, wherever it does not violate some rule of the general law. I make these remarks, because, at the first blush of the case, I felt inclined (as I believe most persons would) to take sides with the widow and daughters of the son Thomas. It seemed hard, that the misfortune of losing their husband and father, should cut them off from all share of the estate, because he died before his mother. A careful examination of the case, however, has compelled me to believe, that the testator has so willed it.

*In this will of Thomas Roney the elder, there are two purposes of the testator"very clearly expressed: 1. that his wife should have the use and profits of his whole estate not before disposed of, during her widowhood; 2. that when her right ceased, either by marriage or death, the land should' be divided among the five sons whom he names, or so many of them as should be then living, and the personal estate among the nine children named, or so many of them as should be then living. It is contended, however, that by the words “desiring that she shall share out such a part to each child, as they come of age, as shall seem most convenient” &c. the testator has created in each child a right to an equal portion of the personalty, .vesting in each as he came of age, and which each at that age would have a right to call for: and a great many cases have been cited to shew that words of recommendation and desire amount to a bequest, and create a trust. There is no doubt that this is sound law. ,In Malin v. Keighley, 2 Ves. jun. 335, the master of the rolls lays it down thus broadly: “If a testator shews his desire that a thing shall be done, unless there are plain express words or necessary implication, that he does not mean to take away the discretion, but intends to leave it to be defeated, the party shall be considered as acting under a trust. ’ ’ But here, I think, there are such words. We are always so to construe a will as to make all the words stand together, if possible, and to give every part of the will effect. If we say, that each child, as he came of age, had a vested right to take his share, and could instantly enforce that right, what becomes of that part of the will, which, in the most explicit terms, gives, the whole to the wife during her widowhood? We expunge it. Again; what do we do with that part of it which says, that when the wife’s interest ends, the whole personalty shall be divided among the nine children, or so many of them as shall be then living? clearly *fixing the time of division, and making the share of each depend upon the contingency of his surviving the mother. These words of contingency are twice repeated in the will; shewing a settled intention in the testator,o both as regarded the realty and the personalty. Indeed, the whole scheme of the will, would, as it seems to me, be destroyed by this construction. It is not then to be tolerated, if by any other way we can preserve the scheme, and give a rational meaning to all the words; and this (I think) is easy in the present case. The testator gives the whole to his wife; but it may well comport with this, that he should wish her, either from her profits, or by a loan of part of the slaves, to share out to each child, as he came of age, such part as might seem most convenient, to help him along; the property thus loaned, to be subject to division at her marriage or death, to and among such of the nine children as should be then living. This reconciles the whole will; and this seems to have been the cotemporaneous understanding, for the weight of proof is that the son Thomas always considered that he held the slaves on loan.

BROCKENBROUGH, J., and TUCKER, P., concurred. Decree reversed; bill dismissed as to all the defendants, except the administrator of Rebecca Roney ; and cause remanded for further proceedings against that defendant.  