
    HUCKABEE, Adm’r. vs. SWOOPE.
    1. A legatee may come into a eonvt of equity to enforce payment of his legacy from a refractory executor.
    2. "When the enjoyment of a legacy is made to depend upon a condition subsequent, and the performance of that condition depends alone upon the legatee, •who has the power to do what is required, and he fails to perform it, such failure "will work a forfeiture of the legacy.
    3. But where, upon the marriage of the testator’s widow, her husband takes control of the family, looks the house against his wife’s sister, and l-efuses her admission, she cannot be held to have voluntarily abandoned the testator’s family, or to hare forfeited a legacy, which was made to depend upon her remaining single, and living in the testator’s family.
    4. A will contained these clauses: “ I also wish that my sister-in-law, S., he considered as one of my heirs, so far as a support, but not as a legal heir to a part of my estate; provided she lives single, and in my family. It is also xny wish that my executor shall collect all moneys due me, by note or account, and apply said moneys to the purchase of negroes or stock, for the benefit of my plantation and family. It is also my wish that my family he well supported, in health and sickness, out the proceeds of my plantation and other effects.” The testator further directed, that his plantation should be kept up, at the discretion of his executor; that his estate should not be divided, until his oldest child arrived at the age of twenty-one, or married; and that, if his widow married, her legal share of the estate should be set apart and allotted to her. The widow having married again, her share of the estate was allotted to her, and S. afterwards filed a bill against the administrator to enforce the payment of her legacy. It was held,
    
    1. That the testator's “ family” was not dissolved by the marriage of his widow, but continued to exist until the time appointed for a final division of the estate ; and that the complainant was entitled to a support out of the estate until that time, unless she forfeited it by her voluntary abandonment of the family, or marriage.
    (Chilton, J„ dissenting, held, That she was entitled to a supportjfor life, unless forfeited by her voluntary act.)
    2. That neither the widow and her husband, nor the children were necessary parties to the bill.
    Error to tbe Chancery Court of Greene.
    Tried before the Hon. W. W. Mason.
    Sarah A. Swoope filed her bill, against the plaintiff in erról-as administrator with the will annexed of Henry S. Mason, deceased, setting forth that said Mason died in September, 1843, leaving a large estate both real and personal, which he disposed of by his will, which was duly made and recorded; that among other bequests, it contained the following: “I also wish that my sister-in-law, Sarah A. Swoope, be considered as one of my heirs so far as a support, but not as a legal heir, to a part of my estate, provided she lives single and in my familythat in said will, James Dorrah was named as executor, who, shortly after the death of testator, proved the same as to the personal estate, and had it admitted to record in the Orphans’ Court of Greene county, and took on himself the burden of its execution; that said personal estate amounted in value to about the sum of thirty thousand dollars.
    That at the death of the testator his family consisted of his widow and three infant children, and complainant, who bad resided with them for several years before that event. That the eldest child died, soon after the testator, and, with that exception, the family continued the same until February, 1846, when tbe widow married Bushrod W. Bell, who took took the charge and management of the family, living at the former homestead of said Henry S. Mason, deceased.
    That shortly after the marriage of the widow, the executor resigned his trust, and the defendant Huekabee became the administrator with the will annexed, and took charge of the estate, amounting to about twenty-eight thousand dollars in value.
    That complainant continued to live in the family as constituted, after the marriage of the widow, until the month of September, 1846, when, on returning from a temporary visit to a friend, she found the house locked, her room entirely disfurnished, and her furniture thrown into the yard, and she was informed and believed, that it was the result of orders given by Bushrod "VY. Bell, who, by his marriage, had become master, or head of the family.
    In consequence of this, and other acts of unkindness on the part of said Bell, she was compelled to leave the society of her sister and her children, and seek an asylum elsewhere.
    That she was, and is still single; that she is destitute, and has applied to the defendant to allow her a support out of the estate of said Mason, as directed by his -will, but that he refuses to do so.
    The bill j>rays that a sufficient sum for her support and maintenance be decreed out of the profits of the estate, on final hearing, and also for an order setting apart a sum for support pendente lite, as well as for general relief.
    The answer admits every material allegation in the bill, but insists, that on the marriage of the widow with Hr. Bell, the family of Henry S. Mason ceased to exist, and that he did not feel authorized, after that event, to make any appropriation out of the estate for support of complainant.
    The answer contained a demurrer, in which two grounds are set out: 1. The want of proper parties defendants. 2. Want of equity.
    The proof sustains the allegations of the bill, in every material part, and on the points really at issue, there is no conflict of evidence.
    E, W. Peck, for plaintiff in error:
    
      1. The bill is wanting in equity, and should have been dismissed. The clause of the will under which the complainant claims, shows very clearly, that the testator did not intend that any fixed sum should be raised out of his estate and paid to her. He wished her to be supported, only, and that on two conditions, viz: while she remained unmarried, and a member of his “family.” The word “family” is of very indefinite meaning; sometimes meaning “ heirs sometimes, “children and sometimes, “ widow and children.” 2 Jarm. on Wills, 25 ; 2 Story’s Equity, § 1065. When employed in a will, the true meaning must be ascertained by considering the circumstances in which the testator was placed, the objects which he had in view, and the context of the will. Blackwell v. Bull, 1 Keen, 176, (15 En. Oh. B. 177.)
    In this case, the word certainly means the testator’s wife and children, and the complainant, so long as she continued to live single and with them. It must be recollected that the testator was under no obligation to provide even a support for complainant. If he had intended that she should be entitled to a support during her life, upon the single condition that she remained unmarried, .whether she lived in his family or not, he could have said so, and made provision accordingly. He looked forward to a time when his family should cease to exist, viz: on the marriage of his widow, when her share of the estate was to be allotted to her. Until that time arrived, the “family” was to be supported out of the proceeds “of the plantation and other effects,” and this support was to be furnished by the executor. But the marriage of the widow caused a division of the estate, and dissolved the family.
    Again; conceding that complainant’s right to a support out of the estate was not determined by the marriage of the widow, and that she quit the family because she was driven from it by the ill-treatment of Mr. Bell, still this does not entitle her to have a fixed sum set apart for her support. If the ill-treatment of the husband has deprived her of a support, it is a wrong for which he is personally responsible. Her redress is against him for the injury, and not against the estate, or rather the widow and children.
    2. The husband of the widow was an indispensable party to the bill, which seeks redress against an injury which he caused. No proceeding can be maintained to redress an injury, without making tbe guilty person a party.
    3.Tbe widow and children were necessary parties; for they, and not the administrator, would be injured by a decree in favor of complainant. Story’s Eq. PL 186, § 205.
    ' J. B. Claek, for defendant in error.
    1. The complainant was entitled, under the will of the testator, to a vested pecuniary legacy on condition subsequent. 2 Yms, on Exors. 904; 2 Lomax on Exors. 76; 3 Peters U. S: 374; 2 Ed. Ch. B. 78 ; 6 Bac. Ab. 271.
    2. Has she done any act to deprive her of it ? It is a maxim “that the act ofGrod shall injure no one,” and why? Because no one can control it; and for precisely the same reason the act of a third person, beyond the control of another, shall not injure that other. If the condition was one that it was impossible to perform, then the complainant would be entitled to the legacy without performance. 2 Yms. on Exors. 907 ; 2 Lomax on Exors. 76; Clarke v. Parker, 19 Yesey 16.
    3. And this on the ground that the legatee was not in fault, as was the case of Blackburn v. Edgely, 1 Peere Yms. 604.
    4. The family, of which the complainant was a member, was destroyed by the testator’s widow uniting in forming a new family, of which the complainant could not be a member under the will of the testator. 6 Bac. Ab. 272.
    5. There are no words in the will to show that the testator designed that the complainant should forfeit her legacy in the event that the widow married, and we have no right to imply that such was his intention.
    6. Here it- is contended that the widow, by marrying, and that without the consent of the complainant, could not only deprive her of her legacy, but add to her pecuniary means by divesting the legacy entirely. This is not to be tolerated in equity. “ Equity will not allow any one to take advantage of the bequest over, who has himself been instrumental in causing a breach of the condition.” See Lord Strange v. Smith, Ambler, 263; and asserted by counsel arguendo, and not denied in D’Aquilar v. Drinkwater, 2 Yesey. & B. 230; 2 Black. Com. 124, note, (ed. 1843.)
    
      7. Conditions subsequent are always construed witb great strictness as they divest estates already vested. 2 Wins, on Exors. 913, marg.; 2 Lomax on Exors. 78.
    8. -Burchett v. Wool ward, 1 Turner & Russell 441, 11 Eng. Ch. Eep. (Con.) 241, is a case almost identical with this, and there the Master of the Rolls decided that the annuity was not forfeiled.
    9. The administrator was the only necessary party defendant. Cherry et al. v. Belcher, 5 Stew. & P. 133; 1 Dan. Ch. Pr. 302; Mitf. Eq. PL 171; Story’s Eq. PI. § 140; 26 Peters 370.
   LIGON, J.

The first question presented for our consideration arises on the demurrer to the bill for want of equity; should this be sustained, the case is at an end.

The bill is filed by the complainant below, as one of the legatees under the will of Henry S. Mason, deceased, to enforce the payment of a legacy. The clause of the will under which she claims is in these words: “I also wish that my sister-in-law, Sarah A. Swoope, be considered as one of my heirs so far (as) a support, but npt as a legal heir to a part of my estate: Provided, she lives single and in my family.” The complainant charges in her bill that she is still single, but has been forced by unkindness to leave the mansion house and children of testator; that his widow has married one Bushrod W. Bell, who has taken possession of the homestead and control of testator’s children, and by his unkindness she has been unwillingly compelled to abandon both.

That a legatee has a right to come into a court of equity to compel payment of his legacy from a refractory executor, is a proposition which we do not understand to be denied on the part of the plaintiff in error. But it is contended, that the complainant, by leaving the family of the testator under the circumstances named in the bill, violated one of the conditions upon which she was to continue in the enjoyment of the bequest in her favor, and forfeited her legacy.

The rule is, that if the enjoyment of a legacy is made to depend upon a condition subsequent, and the performance of that condition depends alone upon the legatee, who has the power to do what is required to be done, but fails to do it, sucb failure will work a forfeiture of tbe legacy. But is tbis tbe case bere? By tbe allegations of tbe bill, to wbicb alone we can look under tbe demurrer for want of equity, tbe very reverse of tbis state of case is presented. For three years tbe complainant faithfully performed tbe conditions imposed, and enjoyed tbe bequest in her favor. At tbe end of that time a new bead is placed over tbe family of the'testator, and tbis, too, without either her agency or consent. He takes control, and in tbe exercise of bis power as master of his family, be casts her furniture out tbe bouse in her absence from borne, locks tbe door against her, and orders that, on her return, she is not to be admitted. We can see no analogy, whatever, between tbe facts of tbis case and those of any case in wbicb tbe failure to perform a condition subsequent has been held to operate tbe forfeiture of a legacy.

It is also contended, that by tbe marriage of the widow with Bell, tbe “family” of tbe testator was extinguished, and thus tbe condition becoming impossible, tbe legacy to tbe complainant fails, or is void. It is needless, at tbis point of tbe case, to examine to what extent, if any, tbe legacy of tbe complainant would be affected by tbe fact, that one of tbe conditions upon wbicb she was to continue in its enjoyment bad become impossible, after her right to it bad vested, and she had enjoyed it; since, according to our view of tbe meaning of tbe word “family,” as used by tbe testator, it still exists, and will continue to exist until tbe time appointed by him for its dissolution. To limit its signification to tbe testator’s wife and children, would do violence alike to bis intention and to tbe etymology of tbe word. It has no fixed, tecN nical, legal sense. When employed in a will, tbe English Court have sometimes held it to mean “heir,” at others “children,” and in others “widow and children.” 2 Jar. on Wills 25; Story’s Eq. §1065-6. In every case, however, those courts have defined it in that manner, wbicb, in their opinion, best comported with tbe intention of tbe testator. We will adopt tbe same rule in tbis case, believing it to be tbe only safe and proper one.

Tbe word occurs in three several clauses in tbe will before us: First, in that containing tbe bequest to tbe complainant; second, in tbe clause wbicb immediately succeeds it, and in wbicb he directs his executor to collect the debts due him, “ and to apply said moneys to the purchase of negroes or stock for the benefit of my plantation and familythird, in the last clause, which is in these words, “It is also my wish that my family be well supported, in health and sickness, out of the proceeds of my plantation and other effects.”

In all these instances, we apprehend the testator intended to include the white, as well as the slave members of his household. The will is written very inartificially, and doubtless the testator intended to employ the words used in their ordinary sense; and in this State the term family, in common parlance, comprehends not only the wife and children of the master, but his slaves also. To include the latter, not only does no violence to the etymology of the term, but is in strict conformity to it. Over this family, and in its management, the executor is substituted for the master, and while his power to keep it together, and employ its operatives for the common benefit, continues, it exists in legal contemplation, as well as in fact. By the terms of this will, the executor is required thus to control it, until the oldest child becomes of age or marries. Then, and not until then, did the testator intend that his family should be dissolved, and we are inclined to think, that at that period also, he intended that the provision made for the defendant in error should cease.

The bill does not show that this event has happened, by which the right of complainant to a support would be at an end, and therefore there is no hindrance to the complainant in coming into a court of chancery to assert her rights.

Our conclusion is, that the demurrer for want of equity is not well founded.

The demurrer for want of proper parties defendant, cannot be sustained. Bell and wife should not have been joined with the administrator with the will annexed, since they have no interest in the fund sought to be charged with the payment of the legacy of complainant; for it appears that the portion of the testator’s estate to which Mrs. Bell was entitled, had been allotted to her before the bill was filed, and separated from the bulk of it in the hands of the plaintiff in error. Neither do we regard the infant children of the testator as necessary parties, as the administrator with the will annexed was in charge, under tbe will, of tbe estate sought to be subjected, and bad fall power, as trustee, to protect tbeir interest. 1 Dan. Cbj. Prac. 302 ; Story’s Eq. Pl. § 140.

Tbe Chancellor, therefore, did not err in overruling tbe demurrer.

In discussing tbe questions arising on tbe demurrer, we have been compelled, in a great measure, to examine tbe whole merits of tbe case, for neither tbe answer nor proof puts any new phase upon tbe point really at issue. Tbe testimony, however, shows that tbe complainant was a single lady, tbe sister of tbe testator’s wife, for several years an acceptable and valued member of bis family, with no protector except himself, and no means of support but such as she derived from bis bounty. She is known, also, to have been kind and attentive to bis children, especially to one of them who was lame, decrepit and diseased. Under these circumstances, though no legal obligation rested upon him to do so> yet it is by no means extraordinary, that tbe testator should, out of bis ample means, provide for her a support, at least so long as bis children were minors, and leave her afterwards to tbe kindness and protection of those whose infancy she bad watched over and nursed, whose affections she bad won, and whose gratitude, in mature years, would extend to her in age tbe support she might need and tbe protection she might require.

W e think a fair construction and interpretation of tbe will shows, that this was what tbe testator intended to do. He wishes bis executor to keep up bis plantation, but leaves this to bis discretion. He then provides for tbe education of bis children at tbe best schools, and devotes tbe proceeds of bis plantation for that purpose; “ and that there shall be no division of my property until my oldest child shall become of age or marry; and in tbe event of my wife’s marriage after my death, it is my wish that my property shall be divided according to law, and she to receive her lawful right of all my effects, and tbe balance to remain in tbe bands of my executor until my oldest-becomes of age or marries, at which time I wish my property equally divided between my children then living.” Tbe next clause contains tbe provision in favor of tbe defendant in error, which has already been quoted, and need not be bere repeated. Tbe next directs bis executor to collect tbe debts due bim, and purchase negroes and stock for tbe plantation and family; then follows tbe last, which has been once copied in this opinion, and directs tbe executor to support bis family well out of tbe proceeds of bis “ plantation and other effects.”

To say that be intended tbe provision made for tbe support of bis family to cease on tbe marriage of bis widow, is wholly unauthorized. He devotes a fund to this purpose, tbe proceeds of plantation and other effects, and in other parts of tbe will, be desires that bis property should be kept together until bis oldest child becomes of age or marries, thus fixing, beyond a well-founded doubt, tbe period at which this provision should cease. At this period be directs that bis property shall pass absolutely to bis children, to be held by them in their own right; and at this period, too, both bis estate and bis family, in tbe sense of tbe will, are, by bis appointment and direction, dissolved forever.

He wishes tbe defendant in error to be considered as one of bis “ heirs so far as a support, but not as a legal heir to a part of bis estate.” Evidently intending to use tbe term heir,” where it first occurs, in the sense of "child.” The provision, then, for her support, is just such as be made for bis children, and no more. Tbe latter, at a particular period, (when the oldest child becomes of age or marries,) are to receive and enjoy tbe body of bis estate, in bis language, “ as legal heirs;” but tbe former is forbidden to take any portion of bis estate in such right.

These views sufficiently define tbe rights of tbe defendant in error, under tbe will of tbe testator, and as tbe result arrived at by us renders it necessary that tbe case should go to tbe Master in tbe court below, and as tbe reference to that officer was tbe only decretal order made by tbe Chancellor, it only remains to be said, that tbe decree of tbe Chancellor is affirmed, and tbe cause remanded, to be proceeded on in tbe court below, according to tbe view expressed in this opinion.

Let tbe decree be affirmed, at the costs of tbe plaintiff in error.

CHILTON, J.

I concur with my brethren, in tbe opinion that tbe defendant in error is entitled to a support out of tbe estate of tbe testator, but dissent from that portion of tbe opinion wbicb bolds that ber right is to terminate when tbe oldest child marries or arrives at tbe age of twenty-one. Tbe will gives ber a present right to a support upon tbe death of tbe testator, and this right is dependent for its continuance upon two conditions subsequent. One is, that she remains in tbe testator’s family, tbe other, that she remains single.

Tbe obvious meaning of tbe testator was, that if Miss Swoope voluntarily abandoned bis family, or married, tbe provision for ber support should cease. It clearly was not in bis contemplation that a change in tbe condition of his family, whether wrought by tbe marriage of the widow, or tbe death of tbe children, or sale or division of tbe slaves, or from any other cause over wbicb Miss Swoope bad no control, should defeat tbe provision for ber support. Had be intended tbe provision to cease upon tbe majority or marriage of bis oldest child, I presume be would have so stated it in the will. But be has not done so, and as bis declared intention, being legal, must be tbe law for tbe government of the court, when called on to execute tbe will, I cannot fix a period for the termination of the “ support ” wbicb tbe testator has not prescribed. Tbe division of tbe estate upon tbe majority of the oldest child, or bis marriage, is not at all inconsistent with tbe bequest to Miss Swoope.

Tbe established rule, in regard to tbe construction of conditions subsequent, requires that tbe court should construe them strictly, and if their performance becomes impossible, tbe legacy is not divested by tbe failure to perform; see 2 Lomax on Ex’rs. 78; 2 Wins, on Ex’rs. 913; 11 Cond. Eng. Ch. Rep. 241; and cases collected in 2 Bridgman’s Digest, 170, 178. In my opinion, the clear intent of tbe testator was, to give this lady a support for life, unless, by ber voluntary act of leaving bis family or marrying, she should forfeit it; and to bold that be designed to deprive ber of a support at tbe time when she would be most likely to need it, and this without any fault of hers, would seem to be repugnant to tbe motive wbicb prompted him to give ber anything by way of support.  