
    * Wallace and Wife v. Dold’s Ex’ors and Others.
    November, 1831.
    Wills — Construction—Gift to Qaughter and Children— Effect. — Testator bequeaths three slaves and $1000, to trustees; and directs the profits of the slaves and the interest of the money, to be applied to the maintenance and support of his daughter M. and her child (M. being at the time a married woman); and on the death of his daughter, the slaves and money to be given to her child, or children if she shall have more than one; the above advances to be made to his said daughter M. independently of any claim testator might have against her husband; Held, upon the construction of this clause, compared with context and general scheme of the will, the testator’s daughter was entitled to the whole profits during her life, and the daughter’s child had no right to demand a share of them for her support-and maintenance — dissentiente Tucker, P.
    Philip Dold late of Augusta county, died in 1819, having by his last will and testament, — after devising and bequeathing • a tract of land, four slaves and 2000 dollars, to his son Jesse Dold, four slaves and 1000 dollars to his daughter Catharine Lawrence, and three slaves and 1000 dollars to his daughter Nancy Morgan, directly and absolutely, — devised and bequeathed as follows: “I give to my friends W. Miller and A. Stuart,” two parcels of land, three slaves by name, and 100 dollars, ‘‘which land, slaves and money, I request my said trustees to hold in trust for the following purposes, and none other: the land and negroes to be employed and used, and the money put to interest, and the proceeds of' the whole to be annually employed for the; support and maintenance of my son William, and for the education of his children;: to be employed in such way as best to promote the true interest of such family; and, at the death of my said son William and his wife, I direct my trustees or the survivor of them, to sell my said lands and negroes, and divide the proceeds thereof equally among his children then living, and the families of such as may be dead. I give to my said trustees, my negroes [three by name] and 1000 dollars in cash: t.he ne-groes to .be kept and used, and also the interest of the money, for the support of my daughter Elizabeth Donaldson, and for the maintenance and education of her children, and for no other ^purpose whatever; and at the death of my said daughter, I direct that the said negroes and money be equally divided among her children then living, and the families of such as may be dead, such family to receive the ancestor’s part. I also give to my trustees my negroes [three, by name] and 1000 dollars in cash; the profits of these negroes, with the interest of the 1000 dollars, I direct may be applied to the maintenance and support of my daughter Martha M’Dowell and her child; and at the death of my said daughter, I direct that said slaves and money be given to her child, or children if she has more than one, and to the children of such as may be dead, if any there be: the above advances, to be made to my said daughter Martha, independent of any claim I may have against the estate of her husband.” “I direct my executors to sell on such terms as they may think best, the land on which Robert M’Dowell now lives, and to make conveyances thereof to the purchasers.” — And the testator having directed the residuum of his estate to be divided into six equal parts, and given to his son Jesse, and to his daughters Catharine and Nancy, one sixth part, each, — proceeded: ‘‘The other sixth parts I direct my trustees above mentioned to receive and apply one sixth part to the use and benefit of my daughter Elizabeth, one sixth part to the use and benefit of my daughter Martha, and the other sixth part to the use of my son William : these parts are severally to be used for the benefit of my said children during their lives, and at their deaths to be divided as their several money legacies are directed to be divided.”
    The testator’s daughter and legatee, Martha M’Dowell, having as yet only one child, a daughter named Eliza, who intermarried with William Wallace, Wallace and wife exhibited their bill in the superiour court of chancery of Staunton, against Dold’s executors, Miller and Stuart the trustees, and Robert M’Dowell and Martha his wife; setting forth the will of the testator Philip Dold; alleging, that the plaintiff Eliza, about the time of the testator’s death, while she ‘was yet an infant, went to reside with an aunt in Huntsville, Alabama, with whom she lived, and by whom she was maintained, till her marriage with Wallace in 1822, and her aunt had a claim against her for the expense incurred in her maintenance, to the amount of 400 dollars; that the plaintiff Eliza, since as well as before her marriage, was entitled to an equal share of the profits of the property bequeathed by the testator’s will to the trustees Miller and Stuart, to be applied to the maintenance and support of his daughter Martha M’Dowell and her child; and that the plaintiff’s mother Martha claimed, and had received and enjoyed, the whole profits, before as well as since the plaintiff’s marriage: and praying, that the executors and trustees might be ordered to render an account of this subject, and of the profits thereof; and a decree, that such part of the profits already received, as the plaintiffs were entitled to, and their just share of the future profits, should be paid to them.
    The answers of the defendants,' — 'after representing that Robert M’Dowell, the husband of the testator’s daughter Martha was an imprudent man, careless of his wife’s comfort, and destitute of the means of maintaining her, that that was the reason of this provision of his will, that his primary object was to provide a support for his daughter, and that the profits of the fund were barely adequate to that object,— submitted the question, as to the construction and effect of the testator’s will, to the court; and alleged, that the plaintiff Eliza had of her own accord left her parents, and gone to her aunt in Huntsville, and that, even before her marriage, she was only entitled to support and maintenance out of the profits of the fund, while she lived with her mother.
    The chancellor was of opinion, that the testator’s will, truly interpreted, did not sustain the claim set up by the bill; that it appeared on the face ox the will, to have been the testator’s primary object, to provide the means of support for his daughter Martha, as without such provision, she would, in his apprehension, be in danger of want; that the mention he made of her child, did not vest in the child a x'substantive claim to a moiety of the profits of the fund during the life of her mother, that part of the provision of the will being satisfied, by regarding her as an object of expense, to which the testator knew his daughter would be subject, during the time her child should remain with her: therefore, he dismissed the bill with costs, but without prejudice to any claim the female plaintiff might after-wards set up to participate in the profits of the trust fund, in case her condition should afterwards require aid from this fund for her support. Erorn which decree the plaintiffs appealed to this court.
    The cause was argued by Johnson for the appellants: there was no counsel for the appellees.
    
      
       Wilts — Construction—Devise to Wife and Children.— On this question, see the principal case cited in Stin-son v. Day, 1 Rob. 143,447, and note-, Nickell v. Handly, lOGratt. 343, 344; Summers v. Bean, 13 Gratt. 423; Craig y. walthall, 14 Gratt. 522; Penn v. whitehead, 17 Gratt. 515, and note-, Rhettv. Mason, 18 Gratt. 566 (see foot-note); foot-note to Leake v. Benson. 20 Gratt. 153; Bain v. Buff, 76 Va. 375; Mauzy v. Manzy, 79 Va. 539; Waller V. Catlett, 83 Va. 202, 203, 2 S. B. Rep. 280; Richardson v. Seevers. 84 Va. 270, 4 S. E. Rep. 712; Seibel v. Rapp, 85 Va. 30, 6 S. B. Rep. 478; Mosby v. Paul, 88 Va. 536, 14 S. B. Rep. 336; Stace v. Bumgard-ner, 89 Va. 421,16 S. B. Rep. 252; Fackler v. Berry, 93 Va. 568, 25 S. E. Rep. 887; Walke v. Moore, 95 Va. 733, 30 S. E. Rep. 374; Vaughan‘v. Vaughan, 97 Va. 327, 33 S. E. Rep. 603; Lindsey v. Eckels, 99 Va. 670, 40 S. E. Rep, 23; Tyack v. Berkeley (Va.), 40 S. E. Rep. 904, See the principal case cited in article in 2 Va. Law Reg. 39, 40, 5 Va. Law Reg. 427, 428, 493. See mono-graphic note on "Joint Tenants and Tenants in Common” appended to Ambler v. Wj’ld, Wythe 235. But see, citing the principal case. Fitzpatrick v. Fitzpatrick, 100 Va. 552, 42 S. E. Rep. 306, changing the rule in the above case holding that, where testator by his will devised to his "dear wife and our sweet little children all that I possess,” it does not create a fee simple in the mother, where that is the only provision in the will, and there is nothing else to show that the mention of the children was but an expression of the motive of the gift. The same case is reported in 8 Va. Law Reg. 437.
    
   CARR, J.

This case depends upon the construction to be given to that clause of Philip Dold’s will, under which the appellants claim. The case is certainly not clear of doubt; but, after the best consideration X can give it, I strongly incline to think the chancellor’s understanding of the will is the true one.

There is nothing technical in the will; the simple inquiry is, what this testator meant by the words he has used? In such an inquiry, I do not think we can derive any aid from reported cases. The testator had six children; two sons and four daughters. He seems to have intended to deal upon the principle of equality, between his sons, and his daughters also; giving to the first, land, slaves and money, to the last, slaves and money. The will is sensibly written; and we easily discern the scheme of the testator running through the whole of it. To one of his sons, he gives his portion, directly and absolutely: but he could not trust the other with property; therefore, he gives his portion to trustees, to be held by them in trust, and 1he proceeds to be annually employed for the support and maintenance of his son, and for the education of his children; and, after the death of the son and his wife, the fund to be equally divided "among the children. Under this devise, it would not be contended, that the children of the son, after they came to full age, or separated from the family, could come in for any of the annual proceeds of the trust fund; for it is to be applied to the maintenance of the son, and education of his children. The testator’s four daughters were all married. There is nothing in the will, or in the record, to shew that one was more the object of his bounty 'or his affection than the others. He seems to have intended to give them about the same portion; to each three or four slaves and 1000 dollars. Two of his daughters, Nancy and Catha-rine, had married men in whom he had confidence: the other two, Elizabeth and Martha, had not been so fortunate. This circumstance varied the form of the legacies. To the two first, he gives the slaves and money, directly and simply, saying nothing at all about their children, and shewing that the daughters alone were the objects of his bounty. With the two last, he proceeded differently. He g-ave to the same trustees, three slaves and 1000 dollars in cash: “the negroes to be kept and used, and also the interest of the money, for the support of his daughter Elizabeth, and for the maintenance and education of her children', and at the death of his daughter, the said negroes and money to be equally divided among her children.” Do we not perceive in this bequest, equally as in the others, that his daughter was the object of his bounty? He could not give it to her at once; for then the object of the gift would be defeated, as it would go to her husband; but the trustees were to hold the fund and apply the profits to her support, and the maintenance and education of her children. The maintenance and education of her children, was the object most im■portant to her comfort and happiness; it was a part of the burden she had to bear. If the money had been paid to her at once, her husband might have gotten and diverted it from its destined purpose. The trustees are, therefore, to apply it to the education &o. of the children. But, I presume, nobody would contend, that the children could have called on the trustees *for any part of these profits, after they were educated and turned out in the world. It is very clear to me, the testator had no such idea: the maintenance and education he contemplated, was during infancy merely, when the mother had to support them. The whole fund was to be theirs at the mother’s death. If he had intended, that as each child came of age, he should have his share of the profits paid to him annually, would he not have said so? But such a provision would have defeated his chief object, the support of his daughter during her life. The fund at best was a very small one; not more I should presume than 400 dollars a year. Suppose his daughter had had five or six children, and each was to have his aliquot part; his daughter would starve. Next comes the bequest to his .daughter Martha, which I consider precisely like the last, in substance: “I give to my said trustees, my negroes &c. and 1000 in cash: the profits of those negroes, with the interest of the 1000 dollars, I direct may be applied to the maintenance and support of my daughter Martha and her child; and at the death of my daughter, the said slaves and money, to be given to her child or children, if she has more than one &c. the above advances to be made to my said daughter Martha, independent of any claim I may have against her husband.” Now, I ask, can we suppose that, under this 'bequest, the testator intended to vest in the child of his daughter, an equal interest with her mother, in the annual profits of the trust fund? and that when she grew up and married, she would have a right to appropriate this half to herself during her mother’s life? I can never believe it. Look at the other provisions of the will. They shew, that it was no part of his scheme to enable the children after they came of age, to claim anjr part of the profits of the trust fund. His daughter Martha, when he made his will, had but one child, and therefore he mentions the support of her child: suppose she had had, afterwards, four or five children more, did he not mean that they, equally with the one then born, should have a support? No doubt of it: *for we see, that when he comes to dispose of the fund at her death, it is to her child of children if she should have more than one. He meant the same benefit to all her children, both during her life and at her death; and that benefit was the same sort of support that he had provided for the children of his other daughter and son, who took through the trustees. No matter then, how many children Martha had had, they would have had the same right with the eldest, when they came of age, to have taken, thenceforward, their equal portion of the profits, and thus to have beggared their mother. Could the testator have meant this? The mother then old and sinking in years; the children young and able to make their way in the world; could he have intended to leave his own daughter thus exposed to want? The voice of nature cries' out against it. He knew that she would be solely dependent on whkt he gave, for her bread: he knew this, for we see that her husband then lived on his land, which in another clause of his will he directs his executors to sell, and that this husband was' then indebted to him. With this knowledge, would he, even if he had been sure his daughter would have no other child, have given to the one she had, half of the slender pittance he had left her? I cannot think so. But further: immediately following the bequest to Martha, he says “the above advances, to be made to my daughter Martha, independent of any claim,” &c. The above advances; what advances? Why, the profits of the negroes, and the interest of the 1000 dollars; those are the immediate antecedents. These advances were to be made to his daughter Martha, and she is to have the whole ox them, without any deduction for what her husband owed him. This, to my mind, is the clear meaning of the whole sentence. Again: in the residuary clause, he directs the residue of his estate of every kind to be divided into six parts; of which he gives one to Jesse; one to Catharine, and one to Nancy; then he adds, “I direct my trustees above mentioned, to receive and apply one sixth part to the use and benefit of mj' daughter Elizabeth, *one sixth part to the use and benefit of my daughter Martha, and the other sixth part, to the use of my son William — these portions are severally to be used for the benefit of my said children during their lives, and at their deaths to be divided as their money legacies are directed to be divided;” shewing that he meant this residuum to stand precisely in the situation of the other legacies : and here we see, the profits were left to his children for their lives, without any participation of their children with them during that period. Neither, therefore, did he intend any participation in the former case. I am for affirming the decree.

CABELL and BROOKE, J., concurred.

TüCKER, P.

This case is certainly not without difficulty, and the very imposing view which has been taken of it by my brother Carr, naturally gives rise to doubts, about the correctness of the opposite opinion which I shall express. That opinion is, that the clause in this will under consideration, does not give to Martha M’Dowell, the right to the profits and interest of the estate, devised to the trustees, exclusive of her daughter.

I think it obvious, that there is not, in the words of that clause, any direct gift to Martha. There is a trust, indeed, created for her benefit, and that of her child; the testator having expressly created two trustees, and manifested by the terms “may be applied,” his intention that those trustees were to receive the proceeds or annual profits of the fund, and apply them to the maintenance and support of his daughter and her child. The trust thus created, if words are to govern us, where they are plain and unequivocal, is a trust not for the support of the daughter only, but of the daughter and her child. Could the trustees have been justified in applying the whole of the profits of the trust fund to the use of the mother, if that mother had- unnaturally left her child to suffer, or if they perceived that whatever came to the mother’s hands, passed immediately into the father’s, *and was wasted by his prodigality, while his family were left unprovided? I think not. Nor can I perceive, how we can get rid of the plain import of the words, unless there is something in the will which shall alter and control them. The case of Robinson v. Tickell, 8 Ves. 142, is a good deal like this; and, though I readily agree that cases upon wills very often confuse instead of elucidating, yet I shall advert to it, as shewing, that where words are not so strong as here, they have been Considered as excluding the mother from the absolute interest, and raising an interest in the child. There, the testator bequeathed ^2000. reduced annuities, to H. to have the interest during her natural life; remainder to his niece Rebecca for her and her childrens’ use : H. died : Rebecca and her husband having sued for the dividends, the chancellor, speaking of the bequest, said, “The bequest is to Mrs. Robinson in the first place; and if it stopped there, it would be absolute to her. But the will goes on to declare a use; which is for her benefit and that of the children.” He, however, directed that the payment should be made, in that case, to the mother and her husband, upon the authority of Cooper v. Thornton, 3 Bro. C. C. 96, 186. That was a case, where a legacy was given to A. to be divided between himself and bis family; and the question was whether the payment to A. was a good payment? It was decided to be good. And so, in Robinson v. Tickell, from the relation in which Mrs. Robinson stood to her children, whom the chancellor considered as being cestuis que trust as well as their mother, payment was directed to be made to her and her husband. So, in 2 Leon. 221, pl. 280, cited and relied on in Land v. Olley, 4 Rand. 221, 234, A. devised that his lands should descend to his son, but he willed that his wife should take the profits until his full age, for his education and bringing up. It was held that nothing was devised to the wife but a confidence, and she was guardian or bailiff for the infant, which determined by his death.

*The first of those cases (Robinson v. Tickell) is stronger in every respect than this; for there, there was a devise to Rebecca, of the interest and dividends, which she was of course to receive, for the use of herself and children. She was the trustee, and the property was to pass through her hands as the conduit. Here, Miller and Stuart are the trustees, and the profits and interest are to be applied by them (as I understand the will) to the maintenance and support of Martha and her child. In that case, there might be a pretence for considering the bequest as a bequest to the mother absolutely, and the reference to her children, as merely indicating one of the motives which led to it. In this, there is no bequest to herself, but a bequest to trustees, equally charged with the maintenance and support of her child as of herself.

The case in Beonard wants, indeed, the characteristic of a beneficial interest in the mother. But still it was a devise that the mother should take the profits for the education and bringing up of the son; and yet it was not considered as a gift to the mother, but only as a trust for the son.

Bet us next see, if there is any thing in the will, which controls the plain meaning of the words. The testator had two daughters married, perhaps, to men in whom he had confidence: to these he bequeaths his bounty, directly and without the intervention of trustees. But as to Elizabeth and Martha, what he bequeathed to them was given to trustees (it is supposed) lest it should be wasted by their husbands. Still, if the mother was the only object of his bounty, the testator had only to provide, that the profits should be paid over to her. Why say any thing of the child? He (or rather the scrivener who drew the will, and who was very probably, the intelligent and learned gentleman who first attested it) has systematically pursued the same language in this clause, and in the devise to Elizabeth ; and has used similar language in the devise to William. Why, in all these cases, is he provident about the ^families or children of the respective legatees? Because, in relation to his son, he feared that if the whole profits were paid over to him, without some provision for his family, they might be left, as too often happens,to suffer by his thriftlessness. And so with the daughters. But for the provision of the will, the whole of the annual proceeds would be paid at once into the hands of.the dattghter, who might, under the influence of a thriftless husband, pass it into his hands, to be squandered to the injury and suffering of their little family. Is not the will, in this case, just such as might be expected, if the testator was under the influence of the fear of such evils, and desired to guard against them? I think so.

The clause which provides, that the advances made to Martha, were to be independent of any claim he had against her husband, is fully satisfied, by reference to the interest given her in one half of the prot-its, and does not require that she should be construed to take the whole. And the residuary clause, so studiously different from that which we have been considering, so far from impugning the construction which the appellants contend for, seems to me to sustain it:-for it shews, that the testator meant a different bequest here, and that he or his scrivener well knew how to use different expressions, when they intended different limitations.

I am of opinion, therefore, that the daughter is to be considered as entitled to a portion of the profits of the funds created by the clause in question. I am, however, further of opinion, that under this will, although the trustees might in their discretion have declined to pay the whole profits to Mrs. M’Dowell, and might have themselves applied a due portion for the maintenance and support of her child, if they found the funds misapplied; yet they .were, prima facie justified in the payments to the mother, by the relation in which she stood to her child, and all such payments should be held good, so long as the daughter was unmarried. No account should therefore be directed anteriour to that period. *For this opinion, I rely upon the cases before cited, of Robinson v. Tickell and Cooper v. Thornton.

It remains only to inquire, whether, if the child took an interest under the will, that interest ceased upon her attaining to maturity, and marrying and leaving the mother? With respect to the portion or shares, which the parties are to take in these bequests for maintenance and support, we have I think no assistance from precedents. In ordinary cases, these terms would most probably extend only to the maintenance and support of a testator’s family, during minority: as where he devises that his family shall be kept together and maintained out of his estate; in such a case, the trust must be executed, not upon the principle of giving equal portions to each, but of providing for the family as a judicious parent, or as the testator himself, had he lived, would have done. Such an execution of the trust, a court of equity should enforce, according to the spirit and intention of the testator’s will, although it is obvious, that the wants and necessities of the different members of the family, might be often unequal; and sometimes one, and sometimes another, might require unusual advances. In such a case, too, it would depend upon ulteriour provisions, whether the members of the family, as they grew up, and married and left the paternal mansion, with a view to a settlement in life, should or should not receive any portion of the revenues for their aid and support. But, in the present .case, the testator having by the express provision of his will, placed his daughter and her child upon the same footing; having directed, that the trustees in whom the estate was vested, should apply it to the maintenance and support of both, by the same words; I can see nothing to limit the rights of the one, more than those of the other. If the application of the fund is to be made to the maintenance of the daughter while she lived, it must be, by the same words, extended to her child, while she lived; or if it is to be limited in the case of the child, it must be limited in the case of the mother.

*In short, in the construction of this will, where the words are so plain, I do not see what we can do but follow them. For, I ask, if the testator really did mean, what I think he meant, what plainer words could he have used, to convey that meaning? And if this court decides, that these words shall not convey that meaning, what words shall a testator adopt to convey it? It is an important matter. For if a man provides that his wife shall receive the profits of his whole estate for the support of herself and his children, and these words be construed to convey the interest to her, to the exclusion of any distinct and independent right in them; then, if she marries again, the whole estate would go into the hands of a second husband ; or if she even remained single, either the children must continue to live with her with their families, or they must be turned adrift without patrimony, if they quit their mother’s mansion. These are consequences which I apprehend few testators can contemplate, as the result of a provision for the maintenance and support of their widows and children.

I therefore, am of opinion, that the decree should be reversed; but the other judges concurring in the contrary opinion, it is affirmed. 
      
      The late judge Stuart.
     