
    *Ware and Wife v. W’Candlish.
    February, 1841,
    Richmond.
    Wills — Construction and Effect — Case at Bar. — Testator bequeaths to a trustee one slave by name, and one fourth of residuum of his estate, in trust for his daughter M. and at her death in trust for her children, if any then living, if none then for his surviving daughters, and mates similar "bequests for the use of other daughters ; and then declares his wish, that the husbands of his daughters shall have no control over the property devised to them ; the daughter M. marries during her infancy : Held, Í. though she is entitled to only a life interest in the subject, she is entitled, not merely to enough of the profits for her support, hut to the absolute property and enjoyment of the whole profits of the subject accruing during her life, and no part of the profits ought to be converted into capital wherein she should have only a life interest; 2. that the surplus profits beyond her support should be paid to her or her order, if she be of full age; but if she be yet an infant, then the same should be paid to her when she comes of age, and if she die under age, to her representatives.
    John Slaughter late of York county, died in 1827, leaving four children, Harriet then the wife of Samuel Badkins, and Lucy, Margaret and Martha Slaughter; and by his last will and testament, after bequeathing three female slaves, named Sally, Mary and Lucy, and their future increase, to Robert M’Candlish, in trust as to the slave Sally for his daughter Harriet Badkins, as to the slave Mary for his daughter Margaret, and as to the slave Lucy for his daughter Martha, to be held by the trustee for the sole, separate and exclusive use of the several daughters, and at the death of each, the slave and her increase bequeathed for her use to be equally divided among her children then living, — devised and bequeathed as follows —“I devise all the residue of my estate to Robert M’Candlish, in trust for my four daughters, Harriet, Margaret, Martha and Lucy, to be equally divided between them; the profits for their sole, separate and exclusive use, and at their death *for their children then living, equally to be divided between them; that is to say, one fourth to each of my daughters, and one fourth to be divided between the children of such daughter at the death of such daughter; and if one of my daughters should die without having a child living at the time of her death, then I wish such daughter’s share to go to the surviving daughters and grandchildren, the said children to take the share of the mother if living : to be held by the said trustee under the limitations before stated, as I do not wish the husbands of my daughters to have any control over the property devised to my daughters.” And he appointed M’Candlish to be his sole trustee and executor; who took upon himself the trust and the executor-ship.
    After the testator’s death, his daughter Harriet Badkins died', leaving two infant children, John and Elizabeth Badkins; his daughter Margaret married William Bacon, and then died leaving one infant child, Mary Bacon; his daughter Lucy married William Delk; and his daughter Martha married William Ware.
    M’Candlish took possession of the three slaves bequeathed to him for the use of Harriet, Margaret, and Martha respectively, and all the residuary slaves about sixteen in number; hired them out, and received the profits, to be appropriated according to the trust declared by his testator.
    In May 1837; William Ware and Martha his wife exhibited a bill in chancery, in the circuit superior court of James City, against M’Candlish the trustee, Delk and wife, the infant children of Harriet Badkins and the infant child of Margaret Bacon; setting forth the will of the testator Slaughter, the agency of M’Candlish in the execution of the trust, the number and names of the residuary slaves that had come to his hands, and the death of some of them; insisting, that they were entitled to have the profits of the slave Lucy bequeathd to the trustee for the use of mrs, Ware, and one fourth of *the net profits of the residuary slaves, accounted for and paid to them; complaining that the trustee denied the right of the plaintiffs to more of those profits than was necessary for mrs. Ware’s own support, and contended, that the surplus ought to be retained by him as part of his testator’s estate, and that the interest thereof ought to be divided among all the testator’s daughters and the children of those who were dead; and praying an account of the profits of that portion of the testator’s estate which was bequeathed to M’Cand-lish for the use of mrs. Ware, and a. decree for the payment of the whole amount thereof to the plaintiffs.
    M’Candlish answered, that he had acted as trustee under his testator’s will, hired out the trust slaves from year to year, and annually credited the female plaintiff with the hire of the slave Lucy, and one fourth of the profits of the residuary slaves; that, out of this fund, he had educated, boarded and clothed her, and that there was a balance thereof in his hands, of 274 dollars with interest on 193 dollars from the 1st January 1837, which he was always ready to pay when he could safely do so; that he had refused to pa3' this money to Ware, the husband of the legatee, because he was expressly excluded from benefit by the testator’s will, and the female plaintiff was an infant and could not give an acquittance ; and that he conceived, that he ought to invest the surplus of the profits in question, over and above the ■ support of the female plaintiff, in some fund for the benefit 'of her and her sisters; since if it should, be paid to her husband he might use it at pleasure; and if she should die without leaving a child, the surviving sister and the children of the deceased sisters might be entitled to the very money now claimed by the bill. And he submitted the construction and effect of the testator’s will to the court.
    The defendants Delk and wife, in their answer, insisted, that the surplus of the profits of the female plaintiff’s ^'portion, ought to be invested in order that the same might accumulate for the benefit of all the legatees, as M’Candlish in his answer proposed; and they suggested that it should be invested in a young female slave, to be held as part of the trust subject for the benefit of all, especially as some of the residuary slaves had died, and this would be the means of replacing them.
    The .court appointed a guardian ad litem for the infant defendants. And the cause coming on for hearing upon the bill, the answers, and the exhibits, the court declared, that the surplus of the. profits set apart by the testator’s will for his daughter Martha, over and above what was necessary for her support, now in the hands of M’Candlish the executor and trustee, namely, the sum of 274 dollars with interest on 193 dollars from the 1st January Í837,' ought to be invested in the purchase o'f a young female slave, or some other profitable .stock; and decreed, that the trustee M’Candlish should invest that sum in the purchase of a young female slave, to be by him held as part of the daughter Martha’s portion, in all' respects, according to the provisions of the testator’s will.
    On the application of Ware ■ and wife, this court allowed them an appeal from the decree.
    Harrison, for . the appellants,
    said, that under the will of the testator Slaughter, his daughter Martha 'was plainly entitled to have, during her life, the absolute use of and dominion over the whole profits of the property given to the trustee for her use. ' To decree that any portion of those profits should be converted into and made part of the capital subject bequeathed to her, in which she should then enjoy only a life estate, was irreconcilable with any just or sensible construction of the will. The restriction of the use and enjoyment of the profits of the estate .vested in the trustee, to the sole, separate *'and exclusive use of the legatees, free from the control, of their' husbands, was inte'nded to avoid the marital rights-of the husbands in the subject, so far only as to exempt the same from alienation or incum-brance' by them, and from their debts, but not to restrict the common use and- enjoyment of the profits, by the husbands and their réspective wives. And he submitted, that "the court, ought to have directed,an account of the trustees transactions, and of the profits by him received. , ■ ■
    There was no.counsel for the appellees.
   TUCKER, P.,

delivered the opinion of the court — That under the will of the testator Slaughter, though the appellant Martha was entitled to but a life estate in the slave Lucy, and in her portion of the testator’s residuary estate, she was nevertheless entitled to the absolute ■ property, use and enjoyment of the profits -of - the estate bequeathed to her; and therefore, ’the decree was erroneous in directing any portion of those profits to be converted into capital, whereof she should enjoy only a life estate: That, instead of reinvesting the profits, as directed by the decree, the surplus thereof in the hands of the trustee M’Candlish, after having been duly ascertained by any proper proceeding, should be decreed to be presently paid to the female appellant, or her order, if she be of full age; and if she be yet an infant, to be paid to her so soon as she shall attain to full age, or, in cáse of her death during infancy, ■ to her representatives.

Decree reversed, and cause remanded for further proceedings.  