
    John T. W. Sargent & wife vs. Ezra A. Bourne & another.
    P., by his will, gave a large sum to trustees, upon the trust that they should pay annually, from the income thereof, not exceeding #5000 a year, as they should judge proper, for the respectable maintenance of P.’s 11 son G. and his wife and his children, to them jointly, or to either of them, during their joint lives, or for their use and benefit, in such sums and proportions, and at such times within the year,” as the trustees should think would best effectuate the testator’s intentions 5 and if G. should survive his wife, that the trustees should“ pay him, or for his use and benefit annually, during his life, such sum, not exceeding #4000 a yeai 7 as they should judge would “maintain him and his children who live with him iomfortably and respectably } ” and upon the further trust, “ to advance and pay from time to time, such sum and sums, as they shall think necessary and proper to educate the children of G. according to their rank and condition in life 3 and further, if in the judgment of said trustees, his children are not sufficiently and suitably provided for and supported by their father, in his life time, then the said trustees may and shall, from time to time, advance and pay to them, and for their use and benefit, so much as they shall judge necessary to provide a suitable support and maintenance for them, and the same deduct from the allowance to their father: ” And upon the further trust, that u on and after the death of G., if he survive his wife, to pay for the use of his children, if any, who are then under age and unmarried, quarter yearly, such sums as said trustees shall think reasonable and proper for their respectable maintenance and education, until they severally come of age or are married,” &c. 5 “but if G.?s wife shall survive him, then upon trust to pay her, quarter yearly, during her life, the income of one third part of said capital sum, and the other two third parts thereof to transfer and pay to G.’s children, if then married or of age 3 and if they are under age and unmarried, then to pay them, and for their use, quarter yearly, such sums as said trustees shall think sufficient for their respectable maintenance and education, until they respectively come of age or are married 3 and to pay to each of said G.’s children, upon his or her marriage or coming of age, the sum of $7000.”
    At the time of the making of the will, the testator’s son G. was incapable of taking charge of his affairs and family, and lived apart from his wife and children, and was dependent on the testator for support: G.?s wife was in a distant state, with two of the three children of G., and was there supported by the testator, until his death \ L., the daughter and oldest child of G., lived with a friend, and was not supported noi educated by G.. After the death of the testator, G.’s condition remained unaltered and his wife and all his children remained separate from him. L. married, and the trustees thereupon paid her $7000, according to the directions of the will, ano were disposed, if they were authorized by the will, to allow her an annual sun-towards her support.
    Held, on a bill in equity, brought by L. and her husband against the trustees, that the trustees had authority, by the will, to appropriate a part of the income of $5000 to G.;s children respectively 5 that this appropriation was not limited to their being under age or unmarried, nor to their living with their father; that the testator intended to constitute a continued and liberal provision for the respectable maintenance of G.’s family, which was not to be withheld from the children in consequence of the payment of the $7000 to them on their marriage or coming of age, but might be continued afterwards, at the discretion of the trustees.
    This was a bill in equity, praying the court to decree and pronounce that Ezra A. Bourne and Samuel Frothing-ham, who were trustees under a codicil to the last will of John Parker, deceased, might lawfully allow and pay to the. plaintiffs a portion of the income of certain of said deceased’s estate, for and towards the yearly maintenance of the female plaintiff.
    The following are the main allegations in the bill: John Parker, late of Boston, duly made and published his last will, on the 26th of August 1822, and afterwards, at different times, made four codicils to said will, the first of which codicils was made and published on the 25th of February 1829; the second, on the 23d of October 1833; the third, on the 2d of August 1836 ; and the fourth on the 30th of November 1836: At the time of the making of said will, (August 1822,) five sons of the testator were living, viz. John, Peter, Charles, George P. and James, and one daughter; and an equal provision was made, in said will, for each of said sons: At that time, George P. Parker, one of said sons, was a widower, and the female plaintiff, Lydia B. Sargent, was his only child ; but said George P. afterwards married again, and had two daughters of his second marriage, who were living at the time of the making of the first codicil aforementioned; and he, the said George P., at both said times, was competent to take care of his property and affairs, and so continued until about the time of the making and publishing of the third codicil abovementioned; at which time, (August 2d 1836,) said George P. had relinquished all business, and resided in the country, and was much debilitated in health, and utterly incapacitated for the charge and management of his affairs and family, and was wholly dependent upon the said testator for support: About the time of the making of said last mentioned codicil, said George P. separated himself and lived apart from his second wife and her children, and she, with the approval of said testator, returned to her native place in South Carolina, where she resided with her said two daughters, at the expense of said testator, until his death, and still resides there with her said daughters: The female plaintiff, Lydia B. Sargent, from her early infancy, after her mother’s decease, was placed in the charge of a friend of her mother, and never after-wards resided (except temporarily) with the said George P., her father, nor was maintained or educated by him, or at his expense.
    The third codicil abovementioned was as follows: “ Whereas, in and by my will and codicils, after giving sundry legacies and making sundry bequests and devises, I gave to my son George P. and his heirs one undivided sixth part of all the residue and remainder of my estate, and I am now desirous of revoking this last mentioned devise to said George P., and substituting the provision herein contained; now I do, by this writing, annul and revoke the aforesaid bequest and devise of the said residue and remainder of my estate to my said son George P., and, instead thereof, I do give and bequeath $100,-000, part of said sixth part of the residue of my estate, and to be raised from and out of the same, to my son Peter Parker, and Joseph Tilden, and the survivor of them, and his heirs. And whereas I did, by my codicil to my said will, bearing date February 25th 1829, give to my sons John Parker, Jr. and William Shimmin, and the survivor of them, $ 200,000, to hold, among other trusts, upon trust to pay one sixth part of the net income and interest thereof, semiannually, to the said George P. during his natural life, and, after his decease, to his widow, during her natural life, if she should survive him, and, after the decease of said George P. and his wife, to his children; and I now propose to revoke this bequest and trust, so far as the same concerns the said George P., his wife and children, and to make a different disposition of said sixth part of said capital and the • income thereof; now I hereby declare that I revoke and annul the bequest and trust aforesaid, so far as relates to the further holding said sixth part of said capital sum and the payment of the income thereof as aforesaid, and, instead thereof, do hereby order and direct the said John and William to pay one sixth part of said capital sum of $200,000 immediately to said Peter Parker and said Joseph Tilden, for them to hold the same, together with said $ 100,000, to them, and the survivor of them and his heirs, upon the special trusts, and for the uses herein specified, and no other; that is to say, to invest said sums in public bank stock, or place them in the Massachusetts Hospital Life Insurance Company, or to loan the same on mortgages, or other good security, at their discretion, and so much of the annual income and interest thereof, not exceeding $5000 a year, as they shall judge necessary and proper for the comfortable and respectable maintenance of the said George P., and his wife and his children, shall annually, from and after my decease, pay to them jointly, or to either of them, during their joint lives, or for their use and benefit, in such sums and proportions, and at such times, within the year, as they shall think will best effectuate my intention ; and the surplus income, if any, shall from time to time invest as aforesaid, to accumulate for the benefit of his children : and if said George P. shall survive his wife, then to pay him, or for his use and benefit annually, during his life, such sum, not exceeding $4000 a year, as they shall judge will maintain him and his children, who live with him, comfortably and respectably; to be paid at such times within the year, and in such sums, as they shall think will best carry into effect my intention ; and the residue of the income, from time to time, to invest, to accumulate as aforesaid: The said trustees, in estimating the amount proper to allow my said son, are to take into consideration the income he will derive from the real estate devised in trust for him in the second codicil to my will: And upon the further trust, to advance and pay, from time to time, such sum and sums as they shall think necessary and proper to educate the children of said George P. according to their rank and condition in life; and further, if, in the judgment of said trustees, his children are not sufficiently and suitably provided for and supported by their father in his life time, then they may and shall, from time to time, advance and pay to them, and for their use and benefit, so much as they shall judge necessary to provide a suitable support and maintenance for them, and the same deduct from the allowance to their father, and make such an apportionment, between father and children, of the money they shall annually pay them, as said trustees shall think reasonable and proper: And I hereby declare that the moneys, which my trustees are directed to pay my said son George P., are intended for the maintenance of himself, his wife and children, and that he is not to have power to alienate or assign the same, or any right to the same before payment, and that the same are not to be liable to be taken or held for payment of his debts, before the same are actually paid to him, and that said trustees may, and I hereby empower them to withhold payment altogether, in case the right to said annuity should be assigned by said George P., or be seized or taken by any of his creditors, and to reserve the same for the benefit of his children • And upon this further trust; on and after the death of said George P., if he survive his wife, to pay for the use of his children, if any, who are then under age and unmarried, quarter yearly, such sums as they, said trustees, shall think reasonable and proper for their respectable maintenance and education, until they severally and respectively come of age or are married, and, upon their coming of age or marriage, to transfer and pay to each of them, severally and respectively, an equal share; and if any or all of his children shall be of age or married at his decease, to transfer and pay then to such child or children as are of age or married, each and every of them, an equal share ; the children of a deceased child to take the share their parent would have been entitled to, of the whole of said capital, with all accumulation and increase thereof: But if George P.’s wife shall survive him, then upon trust to pay her, quarter yearly, during her life, the income of one third part of said capital sum, which they are to retain in their hands for the purpose, and the other two third parts of said capital sum, with all accumulation and increase thereof, to transfer and pay to said George P.’s children, if then married or of age, equally among them; the children of a deceased child, if any, to have the share their parent would have been entitled to ; and if they are under age and unmarried, then to pay them and for their use, quarter yearly, such sums as they shall think sufficient for their respectable maintenance and education, until they respectively come of age or are married, and then to transfer and pay to them respectively, as they come of age or are married, an equal share of said two third parts of said capital sum, with its increase: And upon this further trust, that said trustees, upon the decease of said George P.’s widow, shall transfer and pay, in equal shares, to his children, if then of age or married, and if not, as soon as they respectively come of age or are married, (the children of a deceased child to have the same share its parent would have been entitled to,) the aforesaid third part of said capital sum reserved for the use of their mother: And I do furthe-order and direct said trustees to pay to each of said George P.’s children, upon his or her marriage or coming of age, whichsoever. may first happen, the sum of seven thousand dollars; and if thereby, or from other cause, the third part of said capital, reserved for the use of the widow of said George P., in case she survive him, shall not yield so much as two thousand dollars net income annually, I direct said trustees to make up the deficiency to her. I hereby give and devise the residue of the said sixth part of the residue and remainder of my estate given by my will to my said son George P., after raising and deducting therefrom said $100,000, to my sons, John, Peter, Charles and James, and my daughter Eliza, and their heirs, equally to be divided among them; and I hereby confirm all the devises and bequests, in my said will and codicils, which are not hereby expressly revrked or altered.”
    The testator died on the 29th of May 1840, leaving said will and codicils unrevoked and unaltered, and the same were proved and allowed, in the probate court, on the 8th of June 1840. Peter Parker and Joseph Tilden, the persons appointed tiustees, as aforesaid, by the testator, declined to accept said trust, and, on the 22d of June 1840, the defendants were appointed, by the court of probate, trustees of the trust fund aforesaid, and took upon themselves the execution of said trust, and received into their possession, from the executors of said will, the sums of money bequeathed by the testator in trust as aforesaid.
    After the death of said testator, viz. on the 23d of March 1841, the plaintiffs intermarried, whereby, as they aver, the plaintiff, John T. W. Sargent, in right of the other plaintiff, Lydia B. Sargent, became entitled to receive of the defendants, from time to time, a portion of the income of said trust fund, fbr and towards the maintenance of said Lydia B., if the said trustees, (the defendants,) in their discretion, should think proper to allow her any portion thereof for that purpose.
    Upon the intermarriage of the plaintiffs, the defendants paid to the female plaintiff $7000, agreeably to the provisions of the third codicil aforesaid; and, prior to said intermarriage, and while the same was in contemplation, the defendants informed the female plaintiff, that they, in the exercise of the discretion vested in them by said codicil, had determined thereafter to allow her annually, from and out of the income of said trust fund, and for and towards her maintenance, the sum of $ 950, in equal semiannual payments to be made on the 8th of December and the 8th day of June; and they still admit that, in their discretion and judgment, the same ought to be annually allowed to her, for and towards her maintenance, from and out of the income aforesaid, if they have power, in their capacity of trustees, to make such allowance; but the defendants refuse to allow and pay said annual sum to her, because, as they allege, though they intended to allow and pay the same, yet they have no authority, under said codicil, so to do, or to pay any other sum, for and towards her maintenance.
    The defendants demurred to the bill.
    
      Dexter, in support of the demurrer.
    The question raised by the demurrer is purely a question as to the testator’s intention, not affected by any technical rules; and it depends on the third codicil of his will. The other parts of the will throw no light upon this codicil, except as they show that George P. Parker, after the making of the original will and the first two codicils, lost the confidence of the testator in his capacity and disposition to take a prudent care of his family and property. The question is, whether the trustees have authority to make payments to such of George P. Parker’s children as may be of age or married.
    Rejecting all but the essential words of the declaration of trusts in the third codicil — the trustees are to pay from the income as much as they shall judge necessary for the comfortable and respectable maintenance of said George P., and his wife and children, to them jointly or to either of them, during their joint lives, not exceeding $ 5000 in the whole. It cannot well be doubted, that the words “ to them ” mean to George P. and his wife only. The words “jointly,” “ either of them,” and “ during then joint lives,” seem plainly to indicate it; and if so, then no payment to the children is provided for, so far. Next it is provided that if George P. survive his wife, the trustees are to “ pay him,” during his life, such annual sum, not exceeding $4000, as they shall judge will maintain him, “and his children who live with him,” comfortably and respectably. So far also, no provision is made for any payment to the children. Next, the trustees are to pay such sums as they shall think “ necessary and proper to educate the children: ” This is declared to be a “ further trust,” and therefore is in addition to the allowance to the father for the maintenance of himself and the children who live with him. Next comes a provision for a payment to the children, upon a certain contingency; viz. if the trustees shall not think the children sufficiently and suitably provided for and supported by their father, they may divide the annuity between father and children, as they shall judge reasonable. Then follows a restriction upon alienation by George P., prefaced by a declaration that the annuity is intended for the maintenance of himself, his wife and children. (This, however, as the trustees suppose, does not at all affect the question now before the court, being inserted diverso in-tuitu.') Then follows a provision, that, after the decease of George P., his minor children and his widow, if any, shall have a suitable maintenance; and, upon the children’s coming of age, they are to have their share of the capital .trust fund paid to them. A further order and direction then follow, that upon each child’s coming of age or marrying, the trustees shall pay such child $7000. This of course means upon their coming of age or marrying in the life time of their father; for it had before been provided, that upon their coming of age after their father’s death, they were to have their whole shares paid to them.
    The female plaintiff has married, and received her $7000, and she now seeks to receive, in addition, a part of the annuity which the trustees have power to pay to her father. Under which clause of the codicil can they find authority to pay it ? The only clause, authorizing a payment to the children, is that ■which provides for the case of their father’s neglecting suitably to provide support for them. Is the case at bar such a case ? Does not the clause mean such children as he is bound to support? And is he bound to provide support for his married. children, who have received from the trust fund the portions ordered by the testator to be paid to them, upon their marrying or coming of age ?
    What may be paid to the children, who are not suitably provided for and maintained by their father, the trustees are to “ deduct from the allowance to their father.” This plainly points to a case of neglect of duty in the father; and can it be supposed that, out of an income not exceeding $5000, the testator intended that George P. should maintain his married children and their families?
    It is true that George P. has, in addition, the income of the property devised to him in the second codicil. But “ the trustees, in estimating the amount proper to allow ” George P., “ are to take into consideration the income he will derive ” from that property. And they are not authorized to pay out of the income of the trust fund any larger sums, because George P. does not maintain his children, than if he did; but only to divide that sum between them.
    By the construction contended for by the plaintiffs, George P. and his wife are to lose from their suitable income a sum necessary to support their married children, who have already received from their father’s trust property the portion which the testator thought it reasonable they should receive upon their marrying in their father’s life time. It is evident that by the increase of the families of these married children, they could not be so supported without entirely impoverishing their father. The allowance of any part of the annuity can be claimed by the children only upon the ground that they are entitled to be maintained by their father. The claim, then, goes to the extent of a complete maintenance, after having left their father’s house, and received a marriage portion. If the testator did not mean this, how can the trustees hereafter justify any payment to such children ?
    Again; the annuity is to be only such as the trustees judge will maintain “ George P. and his children, who live with him, comfortably and respectably; ” and if he do not maintain them out of it, the trustees are to apportion it. How can a part of this annuity be paid to children who choose, by marrying, to leave him? For such a case the testator otherwise provides by a marriage portion, adequate as he thought; for why give them any portion, if they were still to be maintained by their father ?
    The question is not whether this $7000 is enough for the married children, but whether the testator intended they should receive any more during their father’s life; and if he did not, the trustees have no authority to draw out, for that purpose, a larger annuity from the trust fund, than they shall judge is sufficient to maintain the father, and his wife, and the other children. The residue of the income is to be invested for the benefit of those who come after. Who those may be is wholly uncertain ; and the trustees must protect themselves by a strict execution of their trust.
    But if the demurrer should be overruled, upon the point of the trustees’ power to pay, yet there could be no decree, because the exercise of the power is optional in them, and a mere opinion of the court, in a case in which it could make no decree, would not protect the trustees, if another court, hereafter, should be of a different opinion. It would not be res judicata.
    
    
      Dehon, for the plaintiffs.
    1. Can payments be made, at all, to the children individually ? 2. If they can be, does the power to pay to them cease upon their marriage or coming of age ?
    1. It is manifest from the statements in the bill, which are admitted by the demurrer, that the testator, when he made the third codicil, anticipated the various contingencies to which George- P.’s family might be exposed. The first provision is, that the trustees may pay annually, to the amount of $5000, “ for the comfortable and respectable maintenance of the said George P. and his wife, and his children, to them jointly, or io either of them, during their joint lives, or for their use and benefit, in such sums and proportions, and at such times within the year, as they shall think will best effectuate” the testator’s intentions. To whom may these payments, in such sums and proportions, and at such times, as the trustees think will best effectuate the testator’s intentions, be made ? To George P. and wife alone ? Or to the children also, if the trustees can, in that way, best effect the intention of the testator ? That intention is plainly declared to be the providing of a fund alike for children and parents. This clause, the plaintiffs insist, gives the trustees authority to apportion the income, and make payments to father, mother, and children, jointly for the joint use, or to each for his or her own use, or for the use of any one unable or unfit to appropriate his or her portion. The grammatical construction of the clause accords with this obvious meaning. The words “ for their use,” and the words “ to them jointly, or either of them,” refer to the “children” as well as to the parents. The language is not pay to either, for the use of the others, but pay “ to either of them, or for their use; ” evidently contemplating payments to each individually, for his or her own use ; and payments for the use of those who might be unable or unfit to receive, individually, a portion. The word “jointly,” in its common use, applies as well to more than two persons, as to two only, and must be so applied in the present case, when used in direct reference to the words “ their ” and “ them,” which relate to father, mother and children. So also the words “joint lives,” (to be consistent with the plain meaning of the words “ or for their use,” viz. the use of George P., his wife, and his children,) must be construed as referring to pay ments to be made while both children and parents are alive. But if it were admitted, as the defendants argue, that the words “ joint lives ” must be limited to parents only, still the words “them” and “ their,” in the phrases “to them” and “for their use,” cannot be so limited, because they are written in direct connection with and reference to the maintenance of parents and children. Such a limitation would violate not only the natural and grammatical import of the clause, but also the expressly declared will of the testator in regard to the support of all the members of the family.
    In aid of this construction, it is to be considered that at the date of the third codicil there existed a state of things which required that the trustees should have power to make payments to the children, or for them, independently of the parents. The peculiar condition of George P.’s family was the sole occasion for making this codicil, and imperatively required that such power should be given to the trustees ; so that the natural and grammatical construction of the language corresponds with the state of things which the codicil was intended to meet. George P., as the bill states, was incapable of the charge of his family or of his affairs, and incompetent to appropriate the income of the trust fund according to the intent of the codicil; he was away from his children, at board in the country ; his wife was in South Carolina, with her two daughters; and Mrs. Sargent, the female plaintiff, was the only child in this Commonwealth, and she lived apart from her father. The testator created a fund, which he declared to be intended for the benefit of these various parties. All were therefore entitled to its benefits, in the discretion of the trustees. The testator knew that the income could not be paid to George P., either for himself or for his wife and children ; for the reason already stated. It could not properly be paid to his wife, for she was in a distant State, and her husband and the female plaintiff were here. If then the female plaintiff was to be supported by this fund, it is manifest that she could obtain her support only by payments made to her, if of age to receive them, and if not of age, by payments made for her to some person other than her father or her mother in law.
    The testator seems to have contemplated various contingencies. First, that the members of George P.’s family might live together; and he directed, with reference to such a possible event, that a joint payment should be made to them, for their joint use, as one household. Secondly, he regarded their condition, as it was when the codicil was made, and directed payments to be made to “ either of them,” that is, to each distributively, for his or her individual use, “ in such sums and proportions,” as the trustees should see fit; and if any one should be unable or unfit to receive his or her portion, the words “ or for their use ” permit the payment of that one’s portion to be made for his or her respective benefit. And the subsequent provisions of this codicil seem to confer a similar power on the trustees, after the death of the mother. The amount annually appropriated is $1000 less; but that is because the number, to be supported out of the income, would be less. And this diminution of the income is in the exact proportion by which the number to be supported out of it would be diminished.
    In the clause in the codicil, which makes provision for the family, after the decease of the mother, the testator contemplated it under various possible conditions. First, that the father might be in a better condition, and that he and his children might live together as one family. In that event, he directs the payment for their support to be made to him, as it might be under the former clause already commented on. The testator also provided, secondly, that if the father should remain as he then was, the payments should be made for his use and that of the children who should live with him. And here, at first, the testator seems to have stopped. But perceiving, on reflection, that the payments, after the death of George P.’s wife, were confined to him, or for the use of him and the children who should live with him; and aware that the children, or some, if not all of them, might thereafter, (as was the case before and at the time of making this codicil,) without any fault on their part, be unable to five with their father; or that he might continue at board; or that they might, for other reasons, be separated from him, and yet need aid from this fund; he inserted another clause, directing that the trustees, if in their judgment the children were not sufficiently provided for by the father, should pay to them, or for their use and benefit, such sum as they should see fit, and apportion the amount between father and children, according to their judgment. Construing this in connection with and as a part of the second clause, or $4000 provision, it makes the first and second provisions of the codicil consistent in design and coextensive in operation, except as to the amount, which was, for obvious reasons already stated, diminished in the second clause.
    It is argued by the defendants that this additional clause authorizes payments only to children who live with their father. But such a restriction of this provision would lead to monstrous injustice. For those who did not live with him, even without their fault, could not claim anything, however great their need, and though under age and unmarried. This could never have been intended by the testator, who created the fund expressly for their benefit as well as for their father’s. And the court cannot hold, that the testator intended, after his death, to compel the children to live with their father, as a condition precedent to their receiving any of the income, while he sanctioned, during his life, their living separately from him, and supported them.
    The clause in the codicil, which provides for the children, after their mother’s death, in case they “are not sufficiently and suitably provided for by their father,” enlarges the purposes of the appropriation of $4000, as first made, so as to meet the exigency, which must have been in the mind of the testator, and which he had not previously provided for. So that the provision, as finally made, is not restricted to children who live with the father. Indeed, the only purpose of this clause was to provide for children who should not live with their father.
    2. It remains to be considered whether payments can be made to the children, after they come of age or are married. No clause in the codicil, in terms, limits the application of the income to the children while under age or unmarried. Nor is there an expression in the codicil, which in terms imports, that upon the marriage or majority of the children, their claims to a part of the income (in the discretion of the trustees) shall cease And in the absence of such limitation, the words must be construed to mean what they naturally import, viz. payments, if needed, to the children, towards their maintenance, whether married or of age, during their father’s life, if the trustees see fit to make such payments.
    The defendants rely on the circumstance, that $7000 are given to the children, on their marriage or majority, to show that the testator did not intend that any further payments should be made to them out of the income of the trust fund. But the mere fací that a legacy is given to granddaughters, which is insufficient to support them, independently of their parents, in a manner suitable to their condition in life, cannot, by implication merely, unaided by any express declaration, exclude the children from portions of the income, after their marriage and majority, if they need aid, and the trustees see fit to grant it. It never has been held, where, in the same will, two provisions, of a different nature and amount, are made for the benefit of the same person, that the one is a satisfaction of the other. Here there is a manifest difference in the provisions ; one being a contingent annuity during the father’s life, and dependent, as to payment and amount, on the trustees’ discretion; and the other a sum certain, payable at majority or marriage. This $7000 is to be regarded as an allowance, on marriage or coming of age, independently of mere support. For it cannot be sup posed that the testator would provide so carefully for the minor ity and single condition of the children, and yet exclude them, however destitute, from all aid, out of the income of the trust fund, when of age or married, during their father’s life, and at his death put them in possession of an ample fortune. If these children had been sons, the defendants’ argument would be stronger; for sons, ordinarily, support themselves, after they are of age. But daughters, in the condition of life in which these are placed, are not expected nor allowed to support themselves, even if of age.
    It is worthy of notice that the testator does not diminish his annual appropriation for the family of George P., on the event of the coming of age or marriage of any or all the children. Yet the amount necessary to support the family would be materially lessened, it .he children were to lose all right and title to support out of the income, after marriage or majority. And upon the death of their mother, the testator does diminish the yearly appropriation; thus indicating, that where less was re quired, less should be appropriated.
    The true view of the codicil is this: The testator judged, from George P.’s infirmities, and the separation of his family, that they must all be quasi under guardianship, and be supported ; and he therefore constituted the trustees, as the head of the family, in loco parentis, and placed in their hands a fund for. the benefit of all, and to which all, in case of need, could resort, if the trustees should see fit to allow their claims; intending that the income should be used, as a kind and liberal parent would use it for his own family, according to the exigency of the case, without reference to the age or marriage of the parties, but solely in reference to the wants of the several members of the family, and with regard to their rank and condition in society.
    The defendants’ argument assumes that the plaintiffs claim entire maintenance, and can receive aid from the trustees only on that ground; and that the claims of the children who are married, and their families, will, if allowed, impoverish their father and mother. This, however, is the view of the trustees only. George P. and his wife urge no objections of this kind. And it is apparent, that whether more or less be paid to the children, the portion to be paid to George P. and wife is not necessarily diminished or increased. That is still discretionary with the trustees.
    But the plaintiffs ask only aid from the fund, towards their maintenance, and leave it to the trustees, after consideration of the claims of all, to say whether the plaintiffs are entitled to any, and if any, to what assistance; it being within the trustees’ discretion to withdraw, at any future time, the whole or part of the allowance they may now make, if circumstances shall re quire it.
    If the court shall be of opinion that the trustees have the power to pay to the plaintiffs, it is submitted that a decree to that effect will be valid and protect the defendants. The exercise of the power is indeed optional with the trustees; but that does not prevent nor render nugatory the judgment of the court on the existence of the power. And if, on a bill filed by parties having an interest in the trust fund, and claiming the existence of such a power, the benefit of which power they propose to seek, the court should decree and pronounce that the power does exist, though its exercise is discretionary; there seems to be no reason why the question would not be definitively adjudged.
   By the Court.

We are of opinion that the trust fund, in

the third codicil, was intended as a provision for George P. Parker’s family, including himself, his wife and his children: That the words “ their ” and “ them,” in the first clause, apply to the children, as well as to the parents: That the trustees have authority to appropriate, in their discretion, á part of the income of $5000 to the children, respectively; and that this is not limited to their being under age or unmarried, nor to their living with their father, nor to such a bare subsistence as a father would be compelled by law to furnish to a child; but that it was the intention of the testator to constitute a continued and liberal provision, comfortable and respectable, which was not to be withdrawn merely because the children should have received $7000, on their marriage or coming of age : And that such an appropriation to Mrs. Sargent, as the trustees, in the exercise of their judgment, think ought to be made, will be within their authority, and pro tanto a good execution of their trust.  