
    Addison A. Hosmer and Amanda Hosmer v. Edward Sturges, Sr. et al.
    A testator at the time of making his will had five children, three being over age, and a daughter and one son being minors. He devised to each of his sons a parcel of real estate. Subsequently he sold portions of this real estate to two of his sons, taking their notes for the purchase-money. The remainder of his estate, both real and personal, he gave to his executors in trust, with authority to convert the same into money, and to invest the proceeds in such manner as they might judge most, expedient. Provision was made that his two youngest children should, he supported and educated from the general income of his estate until they were twenty-one years of age. He also authorized the trustees to. “ pay or loan ” to either of his three oldest sons, such part of the income, or principal of his estate as they might think proper, not exceeding at, any time the one-fifth part' of his personal estate to either one of them; and after his two youngest children became twenty-one, he authorized! the trustees to “ pay or loan to them in like manner; ” and if the trustees thought it expedient, he authorized them to make “ such payment or loan” to his daughter at any time after she attained the age. of . eighteen years. The will then provided as follows: “And whenever-said trustees deem it prudent and advisahle to do so (after my youngest child living shall have become twenty-one years of age), I hereby authorize them to make a fair arid equitable division of all my real estate, and personal property, state and hank stocks, bonds, and other evidences of debt, between my said five children or the survivors of them, or their heirs, it being my desire that each of my said children shall have the benefit of as near the same amount of my property as convenient when twenty-one years of age”—Held:
    
    1. That the payments or loans that the trustees were authorized, to make to-the older children and to the younger as they became of age, were not intended to bear interest; nor to be refunded unless it should become necessary in order to equalize the shares of the several children on final distribution. Such payments or loans were intended to be in the nature of advancements, made in anticipation of the final division of the estate. '
    2. The desire expressed by the testator, that each of his children shall have the benefit of as near the same amount of his property, as convenient when twenty-one years of age, has reference to the authority previously conferred on the the trustees, of making advancements to the children, and of making the final division among them, and is intended as a. guide to the trustees in the execution of such.authority,.
    
      3. The -will contemplates the making of the final division of the property belonging to the estate, among the children in specie; and in making such final division, each child is not only to be allowed the benefit of the payments or loans made by the trustees under the will, but also the benefit of similar payments or loans ^intended as advancements, made by the testator in his lifetime. The “benefit” which it was intended each of his children should have is such as would result from the receipt of his or her share of the property by way of advancement, or on the final division. But the trustees are not authorized to make allowances to the older children by way of interest or otherwise, for their not receiving their shares when they became of age, nor for their not having received more on their respective shares than was advanced to them, either by the testator in his lifetime, or by the trustees after his death.
    4. The real estate described in the will as devised to the sons, is to be accounted for in the final division of the estate. The portions sold subsequently to the making of the will are to be charged to the sons purchasing the same according to the terms of the sale; the portions not thus sold are to be charged to the devisees respectively according to the value of the part received by each at the time the devise took effect.
    Appeal reserved in the District Court of Richland county.
    The plaintiff, Amanda Hosmer, the youngest child and legatee of Ében P. Sturges, deceased, brings this suit against Edward Sturges, Sr., Andrew L. Grimes, and Dimon Sturges, executors of the will and trustees of the estate of her father, and against her four brothers, alleging a wrongful and unequal distribution of $869,122.28, of her father’s estate by the trustees, in giving to the three oldest more than a fifth each ; and demanding a full fifth, under a claim that the will requires a distribution to the five children share-and-share-alike.
    Her brother, Henry H. Sturges, by cross-petition, demands the same relief.
    The trustees in their answer set up that in so far as the trust has been executed, it has been done in accordance with the true intent and meaning of the will. They furthermore claim, that should it be otherwise, that the devisees had agreed upon the construction of the will, which agreement was approved by the trustees, they believing it to be the true one; and that the division of the estate, in so far as it has been made, has been in accordance 'with such agreement.
    They also ask the direction of the court in the execution of the trusts confided to them by the will.
    Eben P. Sturges executed his only will on the 22d day of Eebruary, 1850.
    On the 80th day' of September, 1861, he executed a codicil, in which he substituted his oldest son, Di-mon, as one of the trustees, instead of Hezekiah Sturges, his brother,' making no other change in the will.
    He died on the 15th day of 8 anuary, 1862, leaving four sons and one daughter :
    Dimon, born October 21, 1825 ; Stephen B., born March 12,1827 ; and Edward, born Eebruary 1, 1829, were the is-" sue of his first marriage, with Amanda Buckingham; Henry H. Sturges, born December 21,1885, and Amanda, born January 18, 1840, the issue of his second marriage, with J erusha M. Hale.
    His third wife survived him, but is not referred to in the will, she having been provided for by an antenuptial contract ; and by agreement between all the heirs and legatees, a sufficient.fund has been, and is to be, kept by the trustees to provide for her annuity during life.
    His estate, of about equal parts, personalty and realty, valued at upward of $400,000, was all disposed of by the will, within his own family.
    ■He had received property by his first wife, which he kept as trustee, and treated as her property. After her death he divided it among her children as they attained majority-
    The amount of property brought by his second wife was some larger, which he treated in like manner, not subjecting it to the plan of distribution of his own estate.
    Her silverware and five hundred dollars in money, being all of her estate mentioned in the will.
    ■ Of the total amount thus far distributed ($369,122.28),■ $200,000 of personalty, and $70,000 of realty, Was divided January 1, 1863; the other distributions were made during the. years 1863, 1864, 1865, 1866, and 1867.
    To Dimon Sturges............1............. $89,731 86
    To Stephen 33. Sturges.................... 85,812 29
    To Edward Sturges........................ 80,698 32
    To Henry H. Sturges...................... 62,092 84
    To Amanda Sturges........................ 50,771 52
    At the time of the testator’s death he held notes or due bills on Dimon to the amount of $30,000; on Stephen to the amount of $22,340; on Edward, $29,976; and on Henry, $7,276.94.
    The circumstances under which these notes and due bills were given do not appear in the testimony ; nor what proportion of them bore interest upon their face.
    The will is as folloAvs :
    • “ In the name of the benevolent Father of all, I, Ebeu Perry Sturges, of Mansfield, Ohio, do make and publish this my last will and testament. I give and bequeath to my daughter, Amanda Sturges, one silver coffee urn, two silver teapots, one silver sugar bowl and cream cup, and one silver bowl now in my possession, marked J. M. H., to be delivered to her when she arrives at the age of twenty-one years (or at an earlier period, if my trustees hereinafter named shall deem it expedient), upon condition that my son, Henry H. Sturges, shall have five hundred dollars, to be paid him out of the estate of his mother, Jerusha M. Sturges, when he is twenty-one years of age ; but should my daughter Amanda not live to the age of eighteen year’s, then I give and bequeath said silver tea and coffee set, above enumerated, to my son, Henry H. Sturges, to be delivered to him when he arrives at' the age of twenty-one years.
    “ I give and bequeath to my son, Henry H. Sturges, and to my daughter, Amanda Sturges, jointly, one silver ladle, six silver tablespoons, twelve silver teaspoons, two dessert and one cream spoons, marked J. M. H., and all the wearing apparel left by their mother, Jerusha M. Sturges ; and should either of them decease before arriving at legal age, then I give said silver ladle and spoons and wearing apparel to the survivor.
    I give to my sons, Dimon, Stephen B., and Edward Sturges, six silver tablespoons, and twelve silver teaspoons? and all the wearing apparel left by their mother, Amanda B. Sturges, said spoons being marked A. B.
    “ I give, bequeath, and devise to each of my sons, Dimon, Stephen B., Edward, and Henry H. Sturges, thirty feet each of in-lots Nos. 97 and 98, in the town of Mansfield, fronting on West Diamond street, and running east the width of both said lots; said Dimon Sturges to have thirty feet of the north end of said lots; Stephen B. Sturges to have the next thirty feet, adjoining on the south; Edward Sturges to have the next thirty feet adjoining Stephen, on the south; and Henry H. Sturges to have the next thirty feet adjoining Edward, on the south.
    “ I give and bequeath to Hezekiah Sturges, Edward Sturges, Senior, and Andrew L. Grimes, and their successors, whom I hereby appoint executors of this, my last will and testament, all my goods and chattels, rights, credits, and personal property of every kind and description (except the articles hereinbefore devised), in trust to and for the following uses and purposes, viz : That the said Hezekiah Sturges, Edward Sturges, Senior, and Andrew L. Grimes, as trustees aforesaid, shall, at as early a day as convenient, sell, collect, and otherwise reduce the same into money (except such household furniture and personal property as they may think proper to reserve for the use of my heirs, which property so reserved, if any, may at any subsequent period be sold by such trustees), and after paying my debts, shall, from time to time, as money shall be realized therefrom, invest the same in such manner as they may judge most expedient.
    “ I give and bequeath unto the said Hezekiah Sturges, Edward Sturges, Senior, and Andrew L. Grimes, all the bank-stock, state and other stocks and bonds which I may own, and in trust to and for the uses and purposes hereinafter mentioned, hereby giving them full power and authority to sell any or all of said stocks or bonds, and invest the proceeds of the same in some other manner, if in their discretion they shall think proper.
    “ I give, bequeath, and devise unto the said Hezekiah Sturges, Edward Sturges, and Andrew L. Grimes, and their successors, all the real estate of any kind and nature whatsoever (excepting so much of in-lots Nos. ninety-seven and ninety-eight, in the town of Mansfield, as are hereinbefore devised), that I may own in the State of Ohio, or elsewhere, in trust to and for the following uses and purposes, viz; That the said trustees shall hold and possess the same, and receive the rents and profits, and from time to time may, after paying the taxes and repairs, and the necessary expenses attending the same, invest said rents and profits in.such manner as in their judgment may be most expedient; and they may from time to time, whenever, in their judgment, they shall think proper, sell, by private or public sale, or in such manner, upon such terms of credit or otherwise, as they may see proper, all or any part of my real estate, and deeds to purchasers, execute, acknowledge, and deliver; and the proceeds of such sale or sales they shall invest in such manner as in their judgment they may judge most expedient.
    . “ Full power and authority is hereby given and granted to said trustees as aforesaid, to. settle and arrange, or to continue, in such manner as they may see proper, all my business growing out of the different partnerships in which I am interested, and to make such division and partition of such real or personal property that I may own in connection with other persons, as they, in their discretion, shall think proper; the power given in this will, to said trustees, to be exercised by them jointly, or by a majority of them; and in case of the death or resignation of one more of them,! hereby authorize and empower my brothers, Hezekiah Sturges, Solomon Sturges, and Edward Sturges, or those of them who may be living, to appoint a trustee or trustees to fill any vacancies which may occur.
    “ I hereby give said trustees full power and authority to fulfill and comply with all contracts that I have made, respecting real estate, hy executing and delivering, in my name, all necessary conveyances and deeds, and to carry out and fulfill all trusts that have been or may be confided in me, as far as they may be allowed by the laws of the land.
    “ It is my wish and desire that my two youngest children, Henry II. Sturges and Amanda Sturges, shall be supported and educated from the general income of my estate, until they are twenty-one years of age. And I hereby authorize said trustees to pay or loan to either or any of my three eldest sons such part of the income from or principal of my estate, as they may think prudent and proper, not, however, exceeding, at any time, the one-fifth part of my personal estate to either one of them; and after my two youngest children shall be twenty-one years of age, I authorize said trustees to pay to or loan to them, in like manner, and should said trustees think it expedient to do so, I authorize them to make such payment or loan to my daughter, Amanda Sturges, at any time after she attains the age of eighteen years, and whenever said trustees may deem it prudent and advisable to do so (after my youngest child living shall have become twenty-one years of age), I hereby authorize them to make a fair and equitable division of all my real estate and personal property, state and bank-stock, bonds, and other evidences of debt between my said five children, or the survivors of them, or their heirs, it being my desire that each of my children shall have the benefit of as near the same amount of my property as convenient, when twenty-one years of age. Provided, that if, for any cause whatever, said trustees should deem it imprudent or unwise to intrust to either or any one of my said children, or any of their heirs, so large a proportion of my estate, I hereby authorize them to withhold it, and only furnish them such an amount as will comfortably support them.
    “ In testimony whereof, I have hereunto set my hand and seal, this twenty-second day of February, in the year eighteen hundred and fifty. Eben P. Sturges. [seal.]
    “ Signed and acknowledged by said Eben Pei'ry Sturges, as his last will and testament, in our presence, and signed by us in his presence. P. Bigelow,
    “John Wood.”
    
      Codicil to the Last Will and Testament of JEben P. Sturges.— “ I, Eben P. Sturges, of Mansfield, Richland county, Ohio, do make and publish this, as a codicil to my last will and testament. I do nominate and appoint my eldest son, Dimon Sturges, as one of the executors of my last will and testament, in the place and instead of my brother, Hezekiah Sturges, named in said will.
    “ In witness whereof, I have hereunto set my hand, this 30th day of September', a. d. 1861. E. P. Sturges.
    “We, the undersigned witnesses, do 'certify that the above paper writing was signed in our presence by Eben P. Sturges, and that we, at his request, and in his presence, signed our names as witnesses to the same, as a codicil to his last will and testament, all of which was done at his residence in Mansfield, this 30th day of September, a. d. 1861. John Sherman,
    “ Solomon Sturges,
    “John Wood.”
    In the court of common pleas a decree was rendered for trustees, and the petition was dismissed. On appeal to the district court, the case was reserved for decision by this court.
    
      C. H. Scribner, for plaintiffs:
    1. As a genex’al rule, a will speaks only from the death of the testatox’, and we claim that this will speaks from the death of the testator. 1 Redfield on Wills, 379, note, and 385, sec. 11.
    • 2. There can be no question, under the authorities, that the devise to each child vested at the death of the testator. The interest or share became fixed and vested by that event; payment only was deferred.
    A few of the numerous authorities establishing this rule are here referred to: Mendham v. Williams, Law R., 2 Eq. 396; In re the estate of Wm. Walton, 35 Eng. Law & Eq. 589; King v. Isaacson, 17 Eng. Law & Eq. 455; Briggs v. Chamberlain, 23 Eng. Law & Eq. 87; In re Thompson’s Trusts, 15 Eng. Law & Eq. 498; In the matter of House’s Estate, 15 Eng. Law & Eq. 183; Wright v. .Wright, 13 Eng. Law & Eq. 165; In re Richards, Law R., 8 Eq. 119; Brown v. Broion, 44 N. H. 281; Miller v. Keegan, 14 Ind. 502; Mdridge v. Mdridge, 9 Cush. 516; Childs v. Russell, 11 Met. 16; Home v. Van Schaick, 20 "Wend. 564; Morrison v. Morrison, 1 McCarter, 330; Hooker v. Gentry, 3 Met. (Ky.) 463; Fulton v. Fulton, 2 Grant’s Cases, 28; Bowman’s Appeal, 34 Penn. St. 19; lucker v. Bishop, 16 N. T. 402; Thompson v. Thompson, 28 Barb. 432; Van Wyck v. Bloodgood, 1 Bradf. 154; Dominick v. Moore, 2 Bradf. 201; Manderson v. Lukens, 23 Penn. St. 31; Cooke v. Meeker, 36 N. T. 15.
    Whatever share, then, was given to each child, became fixed and vested on the death of the testator. A limited portion of this share might be advanced to each child from time to time, before the final distribution, which was to take place as soon as might be prudent after the youngest child living became twenty-one.
    Then the question recurs: What was the share of each child? What were the respective portions attaching to each at the period of the father’s death ? Was the estate' given'to them in equal or unequal proportions? Was it given to them in such unequal proportions that the eldest was entitled to nearly twice as much as the youngest ?
    3. Right here it is important to bear in mind that the devisees in the will are the children and heirs of the testator ; and in this connection we bring to our aid the well-settled rule: “ The heir is not to be disinherited without an express devise or necessary implication. Br. Dev. 52; Dyer, 330 b; 2 Stra. 969; Cas. temp. Hardw. 142; 1 Wils. 105; Willes, 309; 2 T. E. 209; 2 M. & Sel. 448. See also 3 B. P. O. Towl, 45. Such implication importing, not natural necessity, but so strong a probability that an intention to the contrary can not be supposed. 1 V. & B. 466; 5 T. E. 558; 7 East, 97; 1 B. & P. N. E. 118; 18 Ves. 40:” 2 Jar-man on Wills, 465, 471; 1 Eedfield on Wills, 425; lb. 434, §18.
    Approved in Crane v. Doty, 1 Ohio St. 279; Augustus v. Seabolt, 3 Met. (Ey.) 155.
    Just so far as the construction claimed on the other side takes from our client an equal share of her father’s estate, just so far is she disinherited.
    4. There are many decided cases which show that language such as was employed by the testator does not import an unequal distribution. Weld v. Barnes, 9 Allen, 145; Lovering v. Minot, 9 Cush. 151; Clark v. Wallace, 48 Penn. St. 80; Tucker v. Bishop, 16 N. V. 402; Passmore’s Appeals, 23 Penn. St. 381; Maclin v. Smith, 2 Ired. Oh. 371; Carrington v. Bell, 6 Munf. 374; Newport v. Cook, 2 Ashmead (Penn.), 332.
    It requires but little reflection to satisfy the mind that the payment to each heir of his share at twenty-one does not interfere with an equal division of the estate. Indeed, it is very common for testators to direct an equal distribution of their estates among the objects of their bounty as they severally attain the age of twenty-one. The instances of this are innumerable. We select, at, random, from the reports, a number of cases in which the testamentary disposition was in that form. Williams v. Tartt, 2 Colly, 85 ; Skey v. Barnes, 3 Meriv. 335 ; Tucker v. Harris, 5 Sim. 538; Gordon v. Levi, Ambl. 364; Hooke v. Hooke, 2 Eden, 8; Brie v. Perfect, 1 Colly, 128; Farmer v. Francis, 2 Sim. & S. 505 ; May v. Ward, 5 Br. C. C. 471; Vivian v. Mills, 1 Beav. 315; Weedon v. Fell, 2 Atk. 124 ; Prescott v. Long, 2 Ves., Jr. 690; Mocalta v. Lindo, 9 Sim. 56; ChevauzY. Aislablie, 13 Sim. 71; Britcher v. Leach, 5 Beav. 392 ; Mend-ham v. Williams, Law Bep., 2 Eq. 396; Morrison v. Morrison, 1 McCarter (N. J.), 330.
    
      
      It. P. Banney, M. B. Waite, Charles F. Peck, and Horace W. Fowler, also for plaintiffs.
    
      Jacob Brinkerhoff, for defendants:
    In the' first place, it is a rule which no one will dispute, that-a testator is not obliged to make his children or any other persons who, in case of intestacy, would be his heirs, equal as between each other in the disposition of his estate. He may, indeed, if he pleases to do.so, disinherit all who, in case of intestacy, would be his heirs. So that the provisions of his will, and the acts which they prescribe, and the results at which they aim, are not in direct conflict with law, with settled public policy, or, contra bonos mores, a testator is at liberty to do what he pleases with his property, and, if he pleases, to devise and bequeath the whole of it, even to a stranger; and if he does so—which is, indeed, not very infrequently the case—the utmost effect of it is to afford a presumption of fact, not of law, which may, by possibility, turn the scale in a very doubtful question of interpretation. This proposition is too familiar to require citation or comment; and it follows that even if it were true— which, as applied to this case, we confidently deny—that a testator should mistake the rule of equality as between his heirs, or knowingly ignore or depart from it, it would afford no legal presumption against the construction of the will, which the trustees in this case have adopted.
    Assuming, then, that a testator is of sound and disposing mind and memory, as to which no question is made in this case, and that the provisions of his will are neither unlawful, in conflict with established public policy, nor contrary to good morals—none of which are pretended to have existence in this ease—the sole guiding star of courts in the interpretation of testamentary instruments is the intention of the testator, as manifested by the language he has employed and construed in the light of his surroundings. Wilmot’s Notes, 319 ; Brasher v. Marsh, 15 Ohio St. 109; Williams v. Yeaeh, 17 Ohio, 180; Thompson v. Thompson, 4 Ohio St. 351; Sterling's Ex’rs v. Price, 16 Ohio St. 31.
    
      Passing from this proposition, thus firmly established, and strongly stated in the language of the authorities, we call the attention of the court to another rule equally well settled, which is thus laid down in Redfield on Wills, p. 431, sec. 14; Id., p. 635, sec. 10. The author says: “ There is, perhaps, no rule of construction of more universal application to wills, or which oftener requires to be acted upon, than that every portion of the instrument must be made to have its just operation, unless there arises some invincible repugnance, or else some portion is absolutely unintelligible.” Furthermore he says : “ It is our duty to give effect to all the words, without rejecting or controlling any of them, if it can be done by a reasonable construction, not inconsistent with the manifest intent of the testator.” And here I may remark, that on every principle of reason and common sense this rule is especially applicable, and its application is more imperiously required in cases where the testator was a man of intelligence, of thought and foresight, of discriminating judgment, and where the will was deliberately made, not hurried by the near approach of death, and where his mind was not distracted by. pain nor weakened by disease; where he was in full health, bodily and mental, and where twelve years supervened for further reflection, and he was still content.
    The testator’s will says, and the will of the testator is the law of the case, and supersedes and overrides all other laws in conflict with it': “ It being my desire that each of my children shall have the benefit of as near the same amount of my property as convenient, when twenty-one years of age.” Here is an end to be aimed at; a purpose to be accomplished; a result to be'attained. And the question was, and is, by what rule, on what principle, can the wishes, the “ desire ” of the testator be realized, accomplished ? And this is a question which they were not at liberty to ignore, nor can this court ignore it; for the language of the testator is dispositive in its character. The words are disposing words. This is settled by indisputable authority. Story’s Equity, sec. 1068; Brasher v. Marsh, 15- Ohio St. 104.
    
      What, then, were the trustees to do, so as to make a “ fair and equitable division of his” property between his five children, so that each of them “ should have the benefit of the same amount of his property when twenty-one years of age ?” This was the question. If, without reference to, or consideration of the age of each or either of them, they were to adopt the statutory rule of “ share and share alike,” gross inequality would be the result against the elder children. Amanda would enter at twenty-one upon the fruition of a sum of money equal to that for which Dimon had to wait fifteen years! If the fund were distributed in this way, and on this principle, Amanda would have the advantage over him by fifteen years of accumulated interest, and Dimon would be subject to the disadvantage and loss of interest on a like sum for a like period. This would not be either fair or equitable; this would not be to give to each of the children “ the benefit of the same amount of his property when twenty-one years of age.”
    Seeing that this would not do, the trustees resorted to arithmetic, and allotted to each child the same sum, increased by simple interest at six per cent., without rests, in favor of each child, for the period intervening between the time when each became twenty-one years of age and the time of distribution. And this, they thought, and we think, was the least they could do toward realizing the intentions of the testator in respect to the elder children. In no other way could they give to each child the benefit of the same amount of property when twenty-one years of age. And the amount of interest allowed was surely a moderate one. Had Dimon, for instance, received his $50,000 when he became twenty-one years old, he could have compounded the interest every year, and at á much higher rate than six per cent, during the whole fifteen years that he was waiting for it; and Amanda and Henry may do the same with their portions, and when they arrive at the age that Dimon was when he received his portion from the trustees, they will find themselves richer than he then was, for they may make for themselves a compounded interest at more than six per cent., while he, under the ruling of the trustees, is compelled to content himself with simple interest at six per cent., and that without rests in the calculation. The rule adopted by the trustees is exceedingly favorable to the younger children ; and could not be made more so without ignoring utterly the most significant and important provision in the will.
    And here I will remark that the-word C( benefit” is significant ; too significant to be overlooked or ignored. Benefit, advantage, profit, use, avail, say the lexicographers. These are the synonyms of the word benefit. Each of his children, says the testator, is to have the benefit, advantage, profits, use, and avails of the same amount of his property when twenty-one years of age. How could this be done ? How is this “ desire ” of the testator to be realized ? Not through the medium of advancements, for no advancements were made by him. He made loans, and loans stipulating for and bearing interest, and which interest was exacted by the trustees, and both the principle and interest was exacted by the trustees, and both the principle and interest of those loans were carried into and served to swell the general estate, while it is of the essence of advancements that they bear no interest. 8 Pick. 450; 17 Mass. 355; 1 Mass. Digest, 23, see. 5.
    As to those loans to the elder sons, they were the same as if made to strangers. They were interest-bearing debts, due to the testator while living, and to his estate when dead. How, then, could these elder sons, by the rule of “ share and share alike,” after they had been for many years over twenty-one years of age, have the benefit, advantage, profit, use, and avails of “ the same amount of” his “ property when twenty-one years of age ?” It was simply impossible ; and I may safely defy the wit of man to tell me how the “ desire ” of the testator could be realized otherwise than by the adoption of a rule substantially the same as that on which the trustess propose to act.
    Now, what is the meaning and effect of the clause of this will which authorizes the trustees to pay or loan, etc., as it stands out plain and distinct on the face of its language ? Clearly this. It authorizes, permits, the trustees to distribute from the income or principal of “ his estate ”— not his personal estate only, but from his “ estate,” his estate general, at their discretion, more or less, to those of his sons who have become or shall become twenty-one years of age, and to his daughter when she shall arrive at the age of eighteen; not to exceed a certain limit as to each, and to confine this preliminary and antieipative distribution within that limit. What is that limit ? The answer is furnished by the testator’s own language : “ not, however, exceeding at any time the one-fifth part of my personal estate to either one of them.”
    The trustees may distribute from his estate, either realty or personalty, or both, but the measure of the utmost limit of this antieipative distribution to “ either one ” of his children is “ the one-fifth part ” of his “ personal estate.” That is to say, his personal estate at the time of his death, for it is from that time that the will speaks; and the application of this rule of law is the more imperative from the fact that he reviewed his will and added to it a codicil, changing one of his trustees, shortly before his decease.
    That is all there is of it. No argument, no illustration, can make it more definite and clear. The preliminary distribution authorized is not confined to the personal estate; the warrant is not the distribution of his personal estate, but of an amount measured by his personal estate; the personal estate is the measure and limit of this authorized distribution. His personalty, in its widest sense, constituted but about half, more or less, of his whole estate, so that, had this antieipative distribution been carried out and executed in full, there would still have been about one-half of his whole estate left, and affording “ ample room and verge enough ” to adjust and fix the final distribution on the basis of the rule, and in accordance with the principle which he prescribes in the next clause of the will, and the interpretation of which constitutes the dominating question in this case.
    
      
      Mattson Leyman and Perry $ Jenney, also for defendants.
   White, O. J.

The two main questions in this case are : 1. Whether an agreement has been made between the beneficiaries under the will, settling the principle upon which the estate is to be divided among them. 2. If there has been no agreement, in what way does the will require the estate to be distributed;

In answering the first question, we deem it unnecessary to enter into an examination of the evidence submitted to establish such agreement. On this branch of the case, we deem it sufficient-to say that, after careful consideration of the evidence, we have felt no difficulty in arriving at the unanimous conclusion that the agreement relied on is not established.

Whether the conduct of Henry, in regard to the division of the estate that has already been made, and his acquiescence therein, have been such as to preclude him from setting it aside and requiring his brothers to refund any excess they may have received, it is not necessary now to determine.

It appears that a large portion of the estate yet remains in the hands of the trustees for distribution ; and for aught that now appears in the case, there may be more than sufficient to make up, in the distribution yet to be made, any' deficiency that may be coming to Henry.

But, however this may be with regard to Henry or any of his brothers, we are satisfied there is nothing in the conduct or acquiescence of Mrs. Hosmer, the plaintiff, that ought to estop her from insisting upon receiving the full share of the estate to which sh.e is entitled under the will. Although she was not married at the time the division was made, yet considering her age and inexperience in bus-iness, she had the right to rely on her brothers, and especially on the trustees of whom her brother Dimon was one, that her father’s will would be carried out, and that she would not be required to take less than the will gave her.

Whether, if it shall become necessary to disturb the division heretofore made, in order to secure to Mrs. Hosmer her full share of the estate, Henry or any of her other Mothers, will have the right to have the division opened up and readjusted in accordance with the will, we need not now consider.

In the solution of the second question, namely, in what way does the will require the estate to be distributed, we> have found much difficulty.

The case has been very ably and elaborately argued, both orally and in printed arguments ; and we have given to- it much consideration.

At the time of the making of the will, three of the sons of the testator were over age, Dimon, the oldest, being then twenty-five years of age. Henry and Amanda' were then minors, the latter being of the age of ten years..

The first three paragraphs of the will relate to the disposition of silverware, wearing apparel, etc., and have no bearing upon the matters in controversy.

By the fourth paragraph of the will the testator devises a small lot of thirty feet front, in Mansfield, to each of his four sons, beginning with Dimon, the oldest, and naming them respectively in the order of their ages. These lots adjoin each other and are a sub-division of two town lots; the depth of the lots being equal to the width of the original lots. After making the will, the testator-sold to Dimon twenty-five feet of the thirty devised to Mm, and took his note for the purchase-money. He alse> sold: to Stephen the five feet of the lot devised to Dimon, which had not been sold to Dimon, with twenty feet of the- lot devised to Stephen. The remaining ten feet of- the- 1'ot devised to Stephen and the two lots devised to Edward and Henry were left as they were at the making of the will..

One of the questions for determinations is,, whether the lots thus taken by the sons, partly by purchase- and,' partly by devise, are to be accounted for by them respectively, on final distribution, as so much received on their respective shares.

By the will, the testator gave all the remainder of his estate, both real and personal, to his executors in trust with authority to convert the-same into money and to invest the proceeds in such manner as they might judge most expedient.

Provision was made that his two youngest children should be supported and educated from the general income of his estate until they were twenty-one years of age. He also authorized his trustees to “ pay or loan ” to either of his three oldest sons such part of the income or principal of his estate as they might think proper, not exceeding at any time the one-fifth part of his personal estate to either one. of them; and after his two youngest children became twenty-one years of age, he authorized the trustees to “ pay or loan to them in like manner;” and if the trustees thought it expedient, he authorized them to make “ such payment or loan ” to his daughter at any time after she attained the age of eighteen years. The will then provided as follows-: “And whenever said trustees may deem it prudent and advisable to do so (after my youngest child living' shall have become twenty-one years of age), I hereby authorize them to make a fair and equitable division of all my real estate and personal property, state and bank stock, bonds and other evidences of debt, between my said five children or the survivors of them or their heirs, it being my desire that each of my children shall have the benefit of as near the same amount of my property as convenient when twenty one years of age ”...

The main controversy arises on this clause, taken in connection with the provisions found in the same paragraph of the will in regard to the support and education of the minor children and the making of payments or loans by the trustees. The construction which the trustees have given it, and upon which they have heretofore-acted in distributing the estate, is to ascertain the shares of the-devisees on the basis of allowing to them equal amounts 'as' they respectively became of the age of twenty-one; and of adding-interest on the amount at the rate of six per cent: per an- ■ num from that time up to the first of January, 1863, the-time of the first distribution.

Under this method of distribution Dimon has received' $89,731.86, while Amanda has received only $50,771.52.

On the other hand, it is claimed on behalf of the plaintiff, that interest is to be charged to the devisees for all pay-' ments or loans made to them under the will by the trustees and that such payments or loans are not to be regarded as in the nature of advancements.

We can not regard either of these claims as warranted' upon a proper construction of the will. -

We do not propose, however, to enter into an examination of the various grounds upon which the respective claims of the parties are sought to be supported; but to' state as briefly as we can the conclusions at which a' majority of the court have arrived as.to the true construction-of the will, in respect to the matter in controversy. ■ , ' >

Our conclusions are as follows:

• 1. That the payments or'loans which the trustees were authorized to make to the older children, and to the younger as they became of age, were not intended to bear interest; nor to be refunded, unless it should become necessary in order to equalize the shares of the several childrexi on final distribution. Such' payments or loans were intended in the nature of advancements, made in anticipation of the final division of the estate. . ■!

2. The “desire” expressed by the .testator, that each of his children should have the benefit of as near the-same amount of his property as convenient when t.wenty-ohe years of age, has reference to the authority previously conferred on the trustees of making advancements to-the children, and of making the filial division of the estate among them; and is intended as a guide to the trustees in the execution of such authority. ' ’ " ' 'M.

3. The will contemplates the making of the final division of the property belonging to the estate among the ■children in specie; and in making such final division, each child is not only to be allowed the benefit of the payments or loans made by the trustees under the will, but, also, the benefit of'similar payments or loans intended as advancements made by the testator in his lifetime. The “ benefit,r which it was intendéd each of his children should have is such as would result from the receipt of his or her share of the property, by way of advancement, or on the final division. But the trustees are not authorized to make allowances to the older children by way of interest or otherwise for their not receiving their shares when they became of age, nor for their not having received more on their respective shares than was advanced to them, either by the testator in his lifetime or by the trustees after his death.

The will is not to be construed differently from what it would have been had the testator died shortly after the will was made. The will was made in 1850, and the scheme of disposition which it embodies seems to have remained unchanged in the mind of the testator. The authority given to the trustees to make payments or loans, in the nature of advancements, was prospective, and was intended only to operate after his death. It is to be presumed, that to the extent the testator intended his children to be advanced in like manner in his lifetime, he made such advancements himself.

4. The real estate described in the will as devised to the sons, is to be accounted for in the final division of the estate. The portions sold subsequently to the making of the will, are to be charged to the sons purchasing the same according to the terms of sale; the portions not sold are to be charged to the devisees respectively, according to the value-of-'the pai’t received by each, at the time the devise took effect.

A decree will'be entered in accordance with this opinion.

McIlvaine, J., dissented.  