
    *Erwin & Wife v. Nichols & al.
    March Term, 1876,
    Richmond.
    Wills — Construction.—A testator having in term provided for an equal division of his personal estate among- his three children, held, upon a consideration of the whole will, that he did not intend that certain land he gives to one of the children should he charged to him in the division of the personal estate.
    Abel B. Nichols, of the county of Bed-ford, died in February 1868. He was a widower, and left three children, James E., George A. and Sally E-, then married to Holmes Erwin. He left a will, wholly written by himself, which was duly admitted to probate in the county court of Bedford. So much of the paper as bears upon the only question in this case is as follows:
    ***** Desiring to make some certain disposal of property which I own, not that I desire to discriminate among my children, but to equalize previous advancements, and perhaps make some donations that without a will would not be made. But owing to the late war and the present distracted state of the country cash donations cannot be made with much certainty, especially with the present inflated state of the currency. Now in setting forth the advancements made my children heretofore I shall not confine myself to any bill of items, for a great deal of money and property of various kinds have not been charges at all on my books. So I shall endeavor to state an account approximating as near as I think *right and proper in all cases; and I trust the plan will be satisfactory to all parties interested; and as my decision will be final and not in any case to be altered, I shall require a new set of books to be opened, for at all times for all persons interested to examine the same. *******.
    
    Now, in the first place, I shall' designate the several amounts to be charged to the several legatees, viz: Item 1st. To charge my oldest son, James' B. Nichols, for various sums advanced him, as also several thousand dollars advanced to his different firms or partnerships, to-wit: Nichols, Moulton & Co., the partner was George Johnston, formerly in or near Alexandria, Va., the other firm of Nichols & Moulton, now or recently of Baltimore, Md., together with various land warrants — in all, I have estimated at twenty thousand dollars ($20, - 000), which sum is much under the actual amounts, exclusive of interest. I charge my second —, Geo. A. Nichols, with the sum of ten thousand dollars ($10,000), which will include all advances up to the date of my demise, such as stock, household and kitchen furniture, given him at his removal to the Harriss place, but no real- estate has been given off, and no compensation for services will be allowed him at my death, except such as I shall annually devise for his services, &c. So my intention is, that there shall be no old back accounts to adjust after my demise. I also charge my daughter, Sally E. Nichols, with the sum of five thousand dollars for advances made to her and her husband, Holmes Erwin, since their marriage. I further desire my daughter Sally Erwin to have the benefit and rents of my property in Bynchburg— say one-half of the two stores on Main-street, one of which is at' present occupied by Geo. M. Rucker, and the other by Pain & Brother, as % book store, also the house occupied by Button as a printing and binding office, the stable, yard, &c. My wish is that this property shall belong to my daugther Sally during her life, and then to the heirs of her body, to wit:-her daughter Mary, and any other heir or heirs of her body, the one.-half of this property I estimate at fifteen thousand dollars ($15,000), which is designed to make her portion equal to her brother’s, James B. Nichols. I desire my eldest son, James B- Nichols, to have the benefit and entire profits of my Harriss plantation, as also two parcels of land adjoining, bought of Johnson_& Terry, and adjoining the main road from Bittle Otter to Riberty, as also a piece of twenty-seven acres or thereabout, bought of Webb, all in wood, and adjoining John E. Sales’ and Thos. Beftwitch’s land. Should my said son James B. Nichols, die without legal issue, then at his death, the land aforesaid is to revert back, and the profits -from the date of his death, to the other children of Geo. A. Nichols and Sally E- Nichols. I design, however, a new line to be run, cutting off a small portion of the Harriss and other lands and adding the same to the home or Webb tract — to commence &c. * * It is my wish that this land so cut off, shall forever belong to the home or Webb tract. I also give and bequeath to my second son, George A. Nichols, the use, profits and benefit of the home or Webb tract of land, as also the small piece, near Otter, on the east side of the main road. Also a small piece, bought of Watson, and a small piece of wood land, bought from William A. Hardy, to have and to hold, and take the benefit and profits of the same during his life, and then to the heirs of his body forever. My object and intention is, that no landed property shall be put in market and sold during the life of my ^children, but they are not restricted in regard to the personal effects of my estate, which are to be equally divided between the three legatees afore specified. I think the personal effects, good bonds, &c. will amount to perhaps over fifty thousand dollars, but great doubt exists in regard to their collection, as the stay law, bankrupt law, and the apparent general disposition to repudiate debts, all have a tendency to lessen the chances of realizing. I desire the horse power, mill, cutting box, cider mill, drill, reaper and mower, together with the thresher, not to be sold, or any inventory taken of them, but they are to be considered as a part of the freehold, and as belonging to my son George A. Nichols’ tract. The real estate devised, or the profits, to George and Sally, I think will equalize their portions with James B. Nichols’ previous advancements. I regard James B. Nichols’ transfer of the lands heretofore mentioned, rather in excess of his proper portion; still I am unwilling to hamper him with debt. But I shall especially enjoin it on him that no wood is to be sold off from the estate, or timber of any kind; and I also enjoin it on George not to cut off from the Webb tract any wood or timber, except what the place absolutely' requires.
    • The beneficiaries under the will having differed as to its proper construction, Erwin and wife instituted their suit in the circuit court of Bedford county against James B. and George A. Nichols, to have the construction settled. The sole question was, whether the real estate devised to the different children was to be estimated in making the division among them: or whether the equal division contemplated by the will ■had reference solely to the personal estate.
    The cause came on to be heard on the 7th of February 1872, when the court made the following decree: *It is the opinion of the court that one of the leading intents of the testator, Abel B. Nichols, in making the will in the bill mentioned, was to define the amounts of the advancements theretofore made by him to each of his children, and to adjust the inequalities in the amounts of the same by bequests or devises in his will, so as to make them all equal, or to “approximate equality as near as he thought right and proper,” so that after his’ death there s’hould be no accounts of advancements, or of any other kind (to use his own language ‘no old book accounts’), to be charged to or to be settled and adjusted between his legatees. And the court is further of opinion, and doth decide, that by the devise to Mrs. Erwin of a life estate in the property in Lynchburg (mentioned in said will), and to George A. Nichols of a life estate in the ‘Home or Webb’ tract of land, likewise mentioned in said will, with remainder in fee to their issue respectively, the said testator intended to make them equal with the said James L. Nichols in respect to the advancements previously made by him to his children, or to make them approximate equality as near as he thought right and proper, and by the said devises in his estimation did make them all equal, or as nearly equal, as he thought right and proper, and chose to do; and that although he thought the devise to the said James L- Nichols of a life estate in the ‘Harris’ tract of land, with a contingent remainder over to the issue of Mrs. Erwin and George A. Nichols, was somewhat in excess of his share of his estate, he did not intend that the said James L. should account for that excess; and that, according to the true construction of the said will (whether actual equality among his children has been attained or not), by this ‘plan’ or scheme of the testator, yet that such was his will and *final disposition, and all who claim under his will must abide by it; and therefore there is to be no account taken of the advancements by the testator in his lifetime to his children, and the whole of his personal estate, after paying the debts of the testator and costs of administration, and satisfying the specific legacies given by the said will, is to be equally divided between the female plaintiff and the defendants. And the court doth further adjudge, order and decree, that the said executors do administer and distribute the estate of their testator in conformity with this decree upon the principles above declared. And, thereupon, Erwin and wife applied to this court for an appeal; which was allowed.
    Kean and Thurman, for the appellants.
    Jones & Bouldin and Burks, for the ap-pellees.
   Anderson, J.,

delivered the opinion of the court.

The testator, A. B. Nichols, left three children, James L., George A., and Sally E., who had intermarried with Holmes Erwin, to whom he had made unequal advancements, which he ascertains and determines by his will. The advancements to James he puts at $20,000; to George, at $10,000; and to Sally, at $5,000. And then devises to Sally Erwin real estate in Lynchburg for life, remainder in fee to her daughter Mary and to any other heirs of her body, which he values at $15,000. This devise he declares “is designed to make her portion equal to her brother’s, James L. Nichols.” He then gives to his eldest son, James, the benefit and entire profits of his Harris plantation and other lands mentioned; and provides, that should he die without legal issue (he was then thirty-eight years of age, and unmarried), the lands given to him should *go to the children of George and Sally. He then gives to his son George the use, profits and benefit of the home or Webb tract of land, and other lands mentioned, “to have and to hold, and take the benefit of the profits of the same during his life, and then to the heirs of his body forever.” He says his object and intention is, that no landed property shall be put in market and sold during the life of his children; but they are not restricted in regard to the personal effects of his estate, which he says are to be equally divided between his three legatees. After putting his estimate upon the personal effects, good bonds, &c., which he says perhaps may amount to over fifty thousand dollars, but about which he thinks there is great doubt, from causes which he assigns; and after designating certain articles of property which are to be considered as part of the freehold and as belonging to his son George’s tract, he says: “The real estate devised, or the profits, to George and Sally, I think will equalize their portions with James L-Nichols’ previous advancements.” And then immediately adds: “I regard James L- Nichols’ transfer of the lands heretofore mentioned rather in excess of his proper proportion; still I am unwilling to hamper him with debt.”

Upon the case thus made by the record, we have to determine whether an account of the advancements, and of the bequests and devises hereinbefore recited, shall be brought into the distribution of the personal estate. And that is the only question.

By the express terms of the will, the devise to Sally Erwin was designed to make her portion equal to her brother’s, James L- Nichols. And the testator also declares that the devises he made to George and Sally he thinks will equalize their portions with James L. ^Nichols’ previous advancements. The equalization of the advancements was therefore effected by the testator himself in the disposition he made of the real estate, and they were not left open, to be equalized out of the personal estate, or to be charged to account.

It only remains therefore to inquire: Is James L. Nichols chargeable, in the distribution of the personal estate, with the real estate devised to him for life, with contingent remainder in fee to the children of George Nichols and Sally Erwin, as an offset against his distributive share of the personal estate? Was such the intention of the testator? He says expressly, that the personal estate shall be equally divided between his three legatees. His language is peculiar. He says “the personal effects of my estate, which are to be equally divided between the three legatees afore specified.” Did he mean to say that there should be an equal division of the personal effects of his estate between his three legatees, by adding thereto the value of the interest in his real estate which he had given to his son James, and charging him therewith? If he had so intended, he could easily have said it. But he did not. If he had, what account was to be taken of the valuable interest in the same real estate which he had contingently devised to the children of George and Sally? Was no account to be taken of that? He does not expressly embrace the said real estate in the division of the. personal estate, but directs an equal division of the latter, without any qualifying words. Nor can his intention to embrace it be implied by what is expressed, but rather the contrary, for, in the same paragraph, he acknowledges the inequality, but declines to change it. He says: ‘ ‘I regard James D. Nichols transfer of the lands, heretofore mentioned, rather in excess of his proper (equal) portion (he will *not change it), “still I am unwilling (he says) to hamper him with ■debt.” He directs an equal division of his personal estate between his three legatees, with the fact present to his mind, that the disposition he had made of his real estate in favor of his son James was rather in excess of an equal share to him, but adheres to an equal division of the personal estate notwithstanding, and assigns as a reason, that he is not willing “to hamper him with debt.’’ So far from an implication arising from the language of the will, that whilst the testator directs his personal estate shall be equally divided between his three legatees, he did not mean that, but meant that James should not get an equal share of the personal estate, but should be charged with the value of the interest given to him in the real estate, and that his division of the personal estate should be less than an equal share by the value of his interest, or excess of equality in the real estate, we think the contrary is clearly implied.

The testator no where applies the same language of equality to the division of his estate generally, that he applies to the division of his personal estate. It does not seem to have been his aim to conform to exact equality in the division of his estate. In regard to the charges for advancements to his children, to which he seems to have special but not exclusive reference, he says I shall endeavor to approximate (not equality, but)as near as I think right and proper in all cases, and I trust it will be satisfactory to all parties interested, as my decision is final, and cannot be altered.” James was his eldest child, and had been unfortunate in business. He doubtless considered his losses, and that he would get much^less of his estate at his-, death than his brother and sister; and that he had given to him only a right to the rents and profits of the land ^'during his life, and that it would then go, in the event of his dying without issue, which he may have thought to be probable, to George and Sallie’s children, and that after all the inequality would be inconsiderable. And it was one of his objects in making a will, that he might make some donations, which he could not make without a will. We regard the declaration made in a previous clause of the will to the effect, that no moneys shall be required to be paid over to legatees until their claims are equalized, relied upon by appellant’s counsel, as having reference to the equalization of the purchases which they might make at the sales, and consequently not at all militating against the foregoing construction given to other clauses of the will. We think there is no error in the decree, and are of opinion to affirm it with costs.

Decree affirmed.  