
    *Routh & al. v. Nash’s Adm’r & als.
    November Term, 1876,
    Richmond.
    Wills — Construction.—Testator names three of his nieces whom he says he has taken, care of from their infancy, and he wishes them still provided for, and for that purpose he wishes the whole of his estate, both real and personal, kept together, and so much of the proceeds thereof as might be essential to their genteel and comfortable support applied in that way, so long as they should continue unmarried; and then he gives his estate to certain persons and these nieces. But this postponement of distribution was only to secure his nieces during a state of dependence, such comfortable support as they needed, but not to deprive those interested from that share in the estate, when such provision shall be made for the nieces as shall ensure such support.
    Same — Codicil Explaining. — By a codicil made the same day, testator says: In speaking of a comfortable and genteel support for my said nieces during the time they remain single, I think the sum of $300 each, provided my estate will afford it, ought to secure the end designed. Held; The testator has designated what he deems a proper provision, and it will be fixed at that.
    In January 1855 John H. Nash, of the city of Norfolk, died, having made his will, which was duly admitted to probate in the circuit court of Norfolk, and Wm. W. Lamb qualified as administrator with the will annexed.
    By his will he in the .first place gave to his three nieces, Virginia N. Routh, Sarah A. , Routh, and Martha R. O. Portlock, equally to be divided among them, any and all sums of money which might be due him at the time of his death, from the provident societies of Norfolk and Portsmouth, of which he was a member. He then says:
    My nieces, Virginia N. and Sarah *A. Routh, and Martha R. O. Port-lock, I have taken care of from their infancy, and I wish them still provided for; and for that purpose, in addition to what I have given to them above, I wish the whole of my estate, both real and personal, kept together,' and so much of the proceeds thereof as may be essential to their genteel and comfortable support, applied in that way, so long as they shall continue unmarried; and after the marriage of my said nieces, or their death, I wish the same to be divided among my brothers, naming several, and Emily Hedges and my said nieces, naming them. ***** Rearing that some difficulty may arise in having confined the distribution of my estate to the marriage of my said nieces, I hereby declare, that such was designed only to secure to them, and each of them, during a state of dependence, such comfortable support as they needed, but not to deprive those interested, from their share in the estate, when such provision shall be made for them as shall insure such support.
    By a codicil to his will made on the same day, the testator says: In speaking of a comfortable and genteel support for my said nieces during the time they remain single, I think the sum of three hundred dollars each, provided my estate will afford it, ought to secure the end designed.
    The administrator seems to have supposed that the will required him to keep the whole estate together, and to pay the debts out of the profits; and until this was done, the nieces of the testator were not to receive the annual provision made for them.
    In March 1858 these nieces instituted their suit in equity against the administrator and the legatees, to recover the provision made for them. At this time Miss Port-lock was married, and she of course oníy ^claimed hers up to the time of her marriage in 1856. In June 1858 accounts were directed to be taken; and from the reports of the commissioner it appeared that the administrator had paid a considerable amount of debt, and there remained in October 1858 of indebtedness to be paid, to himself $114.01, and a legacy of $25 to a negro woman who had lived with the testator for several years; and fixing the bequest to the nieces at $300 a year from the testator’s death, there was. due to each of the Miss Rouths $1,308, and to Martha R. O. Portlock, who had married Rowland R. Doggett, $550. The net income of the real estate was $745.38, and of the personal estate $194.25=$939.63.
    The decree having directed the commissioner to enquire and report whether the sum of $300 per annum specified in the codicil of the testator’s will, was a reasonable and proper allowance for the comfortable support of the said annuitants, according to the true meaning of the will; and if not, what other sum, greater or less, would be a reasonable and proper allowance to that end; the commissioner reports that whilst he was of opinion that the said sum of $300 per annum was too small a sum for the comfortable and genteel support of the annuitants, yet, considering the capability of the testator’s estate on which said annuities are charged, the sum was as large as the estate could afford.
    To this report Virginia N. and Sarah A. Routh excepted, on the ground that the allowance made them by the report was wholly inadequate; and that a much larger sum ought to have been allowed for that purpose. That in making the allowance the commissioner ought to have acted with reference to the state and condition of the said plaintiffs, and the circumstances of the estate of the testator, and the annual rents and profits ^thereof; and in view of these the sum should have been larger.
    The cause came on to be heard in January 1859 when the court held that the plaintiffs were entitled to their annuities from the death of the testator, with interest, to be paid out of the profits of the estate remaining after the payment of debts; that as the testator had made no provision for the payment of his debts, the administrator should have regarded the whole personal estate, including slaves, as the primary fund for the payment of debts; and as the amount of the profits of the real estate applied to their payment was more than the amount due to the annuitants, they were entitled to be paid by a sale of the personal property; and decreed that Lamb should sell three slaves named, and out of the proceeds of the sale, pay first the expenses of sale; second, the debts, including' the legacy of $25; and then apply the balance of the proceeds pro rata to the payment to the plaintiffs of the sums of money respectively due them, as ascertained by the commissioner’s report. And Lamb was directed to continue to rent out the real estate of the testator until the further order of the court.
    In May 1862 a commissioner’s report of Lamb’s transactions since the last report was tiled. This included the proceeds of the sale of the slaves; and the payment to the plaintiffs of the amounts decreed to them. And this terminated the proceedings in the cause until 1870, when it was revived against representatives of several of the defendants who had died, and a further account was ordered. This account was returned in November 1872, showing that nothing was due to the plaintiffs Virginia N. and Sarah A. Routh, they having each received the sum of $300 per annum each year since the death of the testator, or an amount equal thereto; *that the net income of the estate from rents was $937, and that there was a balance in the hands of the administrator of $1,185.38, which was apportioned among the legatees of Nash as directed in his will.
    The cause came on to be heard on the 21st of December 1872, when the court confirmed the report, to which there was no exception, and made a decree distributing the amount reported to be in the hands of the administrator, among the legatees. And thereupon Virginia N. and Sarah A. Routh applied to a judge of this court for an appeal; which was allowed.
    Scarburgh & Duffield, for the appellants.
    Baker & Walke, for the appellees.
   Anderson, J.,

delivered the opinion of the court.

The court is of opinion that, whilst the testator directed his whole estate, real and personal, to be kept together so long as his three nieces, named in the will, continued unmarried, “and so much of the proceeds thereof as may be essential to their genteel and comfortable support,” to be applied to that object, if the proceeds or income from his estate exceeded the sum essential for that purpose, the excess should be distributed without delay, amongst the other objects of his bounty, including also his said nieces. He expressly declares that the limitation on the distribution of his estate, until the marriage of his nieces, was not designed to deprive others, who were also objects of his bounty, of their share in his estate, when provision shall have been made, for “such comfortable support” of his nieces “as they needed.”

But the terms “genteel and corn-fortable,” are very ’^indefinite. They have no exact and precise meaning; and would convey different ideas to different ears. What one would regard as genteel and comfortable, another might think was very uncomfortable and not at all genteel. The testator, probably to remove difficulty on this score, indicates in a codicil to his will, what he meant by a genteel and comfortable support, by saying that he thinks the sum of $300 each, ought to secure it. That was perhaps the best definition or description that he could have given, of what, according to his ideas, would constitute a genteel and comfortable support for his nieces. But, lest it might be construed that he intended his nieces to have the sum designated whether or not, he uses the precaution to insert the words, “provided my estate will afford it.” And his deeming it necessary to make this qualification, implies that he himself when preparing his will, understood the language he was using to import a reduction of the legacies of support to a fixed sum, an annuity of $300 to each, and hence he inserts the above qualification, lest it might be too heavy a draft on his estate. Why should he have mentioned any sum unless he intended it as a restriction? He uses words to show that it might not reach that sum, but gives no intimation that in any event it should exceed that sum.

The court is strongly inclined to construe this clause in the codicil restricting the legacies of support so as not to exceed an annuity of $300 to each.

But if it should not be so construed, it is a clear indication by the testator himself, what sum he regarded as sufficient to satisfy the charge he made upon his estate for the genteel and comfortable support of his nieces, and the court would not be warranted in increasing the appropriation, unless it clearly appeared from the evidence in the record, that the testator had designated that amount under a misconception, and that to restrict the annuitants to it would defeat the testator’s manifest intention and purpose of benefaction to them. But this is not shown by the record. Indeed there is no evidence in the cause to show that the annuity of $300 to each, is not sufficient for their support in the manner contemplated and desired by the testator. The court is of opinion therefore to affirm the decree of the circuit court.

Decree affirmed.  