
    Taylor v. Elder.
    The will of T. was duly admitted to probate, and was in the following words:
    “ In case of any accident with me, I give all my property and money to my wife, Rhoda Ann Taylor, with this proviso: That she, my wife, provide for my adopted daughter, Mary Frances Boyle Taylor, adopted in the month of February following, being the year 1863. Dated this day, November 25, 1873.”
    The adopted daughter from the death of the testator to the time of her marriage, was supported by the widow, who had elected to take under the will. The adopted daughter was after her marriage supported by her husband, and the testator’s widow refused further to provide for her-.
    
      Held, the adopted daughter is not entitled to have set off to her any share of the estate; nor is she, while otherwise provided for, entitled to claim support from the testator’s widow.
    Error to tbe Superior Court of Cincinnati.
    1. On October, 26, 1876, Mary F. B. Elder filed in the Superior Court of Cincinnati the following petition.
    Mary F. B. Elder, Plaintiff, vs. Rhoda Ann Taylor, Defendant, _
    
      Petition.
    
    
      “ Now comes the plaintiff herein and says that she was the adopted daughter of the late P. N. Taylor of Cincinnati, and of Rhoda Ann Taylor, his wife, the defendant herein, although such adoption was not by virtue of any proceeding in the probate court of this or any other county. That she was born on the 7th of June, 1855, was adopted by said P. N. Taylor and said defendant in February, 1863, and was married on the 17th day of October, 1871, to Henry Elder, Esq. of Cincinnati. That her said father died on the —day of November, a. d. 1873, leaving no children other than the plaintiff, and left a will, which was duly admitted to probate by the probate court of Hamilton county, Ohio, upon the 1st day of December, a. d. 1873, and is recorded in vol. 19, page 152 of the Records of Wills of said county, which will was in the following words and figures, viz.:
    “ ‘ Cincinnati, September 6, 1862.
    ‘“In case of any accident, with me, I give all my property and money to my wife Rhoda Ann Taylor.
    P. N. Taylor.
    “ ‘ With this proviso, that she, my wife, provide for my. adopted daughter, Mary Frances Boyle Taylor, adopted in the month of-February following, being in the year eighteen hundred and sixty-three, dated this day, November 25th, 1873.
    “‘Ilis
    P. N. M Taylor, mark.
    “ ‘ Signed in the presence of these witnesses:
    “ ‘ Daniel W. Moore,
    “ ‘ Win. Cheeseman,
    “ ‘ Caroline M. Reid,
    “ ‘ M. A. Cheeseman.’
    “ And that said defendant having full knowledge of such probating of said will, appeared before the judge of the probate court, and duly elected to take under said will.
    “ Plaintiff further says that she is the Mary Frances Boyle Taylor mentioned in said will; and that her said father, at the time of his death, left about $12,000 worth of real estate, being an estate of purchase, situated principally in the city of Cincinnati, the remainder being situated in Kentucky, which is, and has been since his death, producing large rents, and all of which rents are and have been taken by said defendant, and all of which property is controlled by her. That he also left a large amount of personal property, which, when his estate was settled, was turned over to the defendant herein, in four notes, aggregating $7,323.77, which, or the proceeds of the same are still in her possession or under her control.
    “ That after her father’s death she remained for most of the time at her homestead with her mother, the defendant herein, until her marriage in 1871, and received during that time simply her food and clothing from her father’s estate, which was received through her mother.
    
      “ That since her marriage she has requested and demanded of her mother her share of her father’s estate, or an adequate provision for her, in accordance with her condition and the extent of said estate; but that the same has always been refused, except one offer made her by her said mother of $100 for a release of all her interest of every kind in her father’s estate, which offer she refused.
    
      “ Wherefore plaintiff prays the court that the defendant may be compelled to render an account of the personal property, and rents and profits received by her from P. N. Taylor’s estate, and to render a statement of the real estate held by her and derived from said estate, or exchanged for real estate belonging to said estate, or purchased with personal property derived from said estate.
    
      “ And plaintifE further prays the court for a construction of said will, and a determination of her rights thereunder ; and for a decree against defendant, compelling her to transfer to plaintiff such a share of the personal property, rents and profits of real estate, and real estate, as the court may find she is entitled to ; or to pay over to said plaintiff, such a share of the personal property, rents and profits, as to the court may seem proper for her adequate and proper provision from the time of her father’s death to the date of the decree, and to set apart in a safe manner for plaintiff’s benefit, such a share of said personal property, rents and profits, and real estate, as to the court may seem proper for the adequate and proper provision for plaintiff during her lifetime; or to pay over to said plaintiff such a share of the personal property, rents and profits, as to the court may seem proper for her adequate and proper provision from the time of her father’s death to the date of the decree, and to secure to the plaintiff the payment of, and to pay plaintiff a definite sum per annum, during her life, such as may seem to the court proper for her adequate and proper provision.
    
      “ And plaintiff further prays for her costs, and for such other and further relief as to the. court may seem just and proper. ”
    To which petition Rhoda Ann Taylor demurred on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and an answer was filed, to which the plaintiff replied, and the cause was submitted (upon the pleadings and evidence) to the court, which at its general term in May, 1878, found the facts substantially as stated in the petition, and also that P. N. Taylor died on the twenty-sixth day of November 1873, and “ that by the terms of said will, said Taylor intended and did convey all of his property both real and personal, to his wife, the defendant herein, coupled with a trust to provide for the plaintiff herein, his adopted daughter ; that by said trust the plaintiff became and is entitled to be provided for out of the estate of said P. N. Taylor, with a reasonable and adequate support for her life, proportioned to the estate left by said Taylor and the condition and circumstances in life of the plaintiff”
    Upon this finding the court rendered judgment “that said plaintiff recover from said defendant such sum as is equivalent to the reasonable and adequate support from the death of said P. N. Taylor to the date of this decree, after allowing for such maintenance as she received from the death of said Taylor to the date of her marriage, said sum to be paid immediately after the same has been determined, and that said plaintiff further recover from said defendant such an annual sum or sums during her life as may hereafter be found by the master or masters to be hereafter appointed, and to whom this case may be referred, to be the reasonable and adequate amount or amounts for the support proportioned to the estate left by said Taylor, and the circumstances in life of said plaintiff,” and that the defendant pay the costs of the action, and of the reference. The court also referred the case to a master for the purposes stated in the judgment.
    This proceeding is prosecuted by Rhoda Ann Taylor to reverse the judgment of the superior court.
    
      
      Jordan c& Bettman, for plaintiff in error,
    contended that when the adopted daughter married, she could no longer claim support under the will, and cited, Moore v. Gamble, 1 Stockt. (N. J.) 246 ; Conner v. Ogle, 4 Md. Ch. 425; Addison v. Bowie, 2 Bland 606 ; Smith v. Jewett, 40 N. H. 530 ; Lyon v. Lyon, 65 N. Y. 339 ; Bull v. McCrea, 8 Ben. Mon. 425; Cloud v. Martin, 2 Dev. & Bat. (N. C.) 274; Baker v. Reel, 4 Dana, 158; Thorp v. Owen, 2 Hare, 608; 1 Bishop on M. & D. § 553 ; Cunningham v. Irwin, 7 Serg. & Rawle, 247; Neil v. Johnson, 11 Ala. 615 ; Schouler on Dom. Rel. 196 ; Stillman v. Stillman, 12 Reporter, July 13, 1881, No. 2; 99 Ill. 196.
    
      Perry <& Jenny, for defendant in error,
    claimed that the will of Mr. Taylor created a trust in favor of Mr^. Elder, and that the plaintiff in error by accepting under the will accepted the trust imposed by the will. The cjuestion is as to the duration of the trust. We claim that it continued through the life of the trustee. Saunders on Uses and Trusts, 343; Adams on Eq. 27, 29 ; Wright v. Adkins, 1 Turner & Russell, 143 ; Clifton v. Lombe, 1 Ambler, 519, 520; Alexander v. McCullock, 1 Cox, 891 ; McDermott v. Kealy, 3 Russ. 64; Jubber v. Jubber, 9 Simon, 503 ; Soames v. Martin, 10 Simon, 288 ; Pride v. Tooks, 2 Beaver, 730 ; Longmore v. Elcomb, 2 Younge & Collier, 363; 2 Roper on Legacies, 1495 ; Biddy v. Thompson, 32 Beavan, 646; Cushman v. Filleter, 3 Ves. 7; 4 Ves. 498; Lyon v. Lyon, 100 Mass. 340.
   Upson, J.

The difficulty in giving a satisfactory construction to the will of P. N. Taylor does not arise from any doubt as to the principles of construction, but from the indefiniteness of the few words in which he endeavored’to express his meaning, so far as it relates to his adopted daughter. The words £( provide for,” are capable of a very broad, or a very narrow, signification. They may be understood to include the furnishing of food, clothing, a dwelling house, household furniture, fuel, lights, and all. that may be needed to enable a person to live comfortably ; or they may be interpreted to mean only the supply of necessary food and clothing, or the giving of a suitable marriage portion.

In reference to the time during which the provision shall be continued, the meaning of those words is equally doubtful; they may require that it should continue while the adopted child remains at the home of the widow, during her minority until her marriage, or during her life.

In the case of Abraham v. Alman, 1 Russ. 509, 46 English Chancery Rep. 453, the will under consideration contained the same words in the following clause: “ Also to provide for the two daughters of my child Hannah Embden, namely Sarah Embden and Esther Embden,” and in giving the opinion of the court upon the effect of this clause, the master of the rolls said: “ The testator had no doubt intended tq make a provision for the Embdens, but his purpose seems to have been to do so by a distinct provision, and not by attaching a charge upon what was given beneficially to others. What this provision was to be, or in what manner, or out of what fund to be made, the court has no means of determining. . Was the payment to be made by a payment to the children of Hannah Embden during their respective lives, or by the payment of a sum in gross ? How was the amount of it to be calculated ? It appears to me impossible to give any certain construction to the clause on which the plaintiffs found their claim.”

The court thereupon held that clause of the will to be void for uncertainty. We are not disposed to go so far as that in this case. The language of the clause written in 1863 is plain, and taken alone would give to the widow all,of the property, real and personal, for her own benefit, but it is clear that by the clause added by the téstator, November 25 1873, the day before he died, he intended to place his widow under obligation to make some provision for their adopted daughter ; and effect should be given to that intention so far as it can be as ascertained. For this purpose we must first determine- the nature and extent of the provision intended, and in regard to that we are satisfied that the testator-intended to -trust mainly to the discretion of his wife, and with that discretion, fairly exercised, a court 'of equity would not interfere. It is conceded by Mrs. Taylor that while Mrs, Elder remained at the home of the former, as a member of her family, it was her duty to support her; which duty is admitted to have been performed, but' 'it is claimed by Mrs. Elder that the obligation to support her during life, was imposed upon Mrs. Taylor by her election to take under the will, and that the whole of the property devised and bequeathed, was taken by her subject to that trust. These claims were sustained by the judgment of the superior court, which found that by the terms of the will Taylor “ intended to, and did, convey all of his property, real and personal,” to his wife with a trust, by which his adopted daughter became, and w’as, entitled to be provided for, out of the estate, with a reasonable and adequate support for her life, proportioned to the estate left by Taylor, and her condition and circumstances in life; and rendered judgment in accordance with that finding. We cannot concur in that construction of the will, which holds the whole property in trust to secure the support for life of the adopted daughter, and makes the-rights and interests of the widow subordinate. We do not think the language of .the will, or the surrounding circumstances, show that to have been the intention of the testator.' We think it is clear that his principal purpose was to give his ¡property to his wife, for her own benefit, but with the obligation to provide, to a reasonable extent, for the adopted daughter. This obligation was fully discharged by the support provided from the death of the testator to the marriage of Mrs. Elder, when it was no longer needed. Cases have been cited, on one side to sustain the position that maintenance for life was intended, and, on the other, that the intended provision was limited to support while the beneficiary should remain a member of the widow’s family; but it has been well stated that “ no definite rule can be laid down ; each case must stand upon its own circumstances.”

The principles which we consider applicable to this case however, so far as they reíale to the extent of the required provision, are stated in the case of Carr v. Living, 28 Beavan, 644, where the testator devised and bequeathed his real and personal property to trustees in trust to pay the interest to the testator’s wife, for life, for the separate use of his wife, and their children, to be applied for the maintenance and support of herself, and the maintenance, education, clothing and support of the children. Upon the hearing of the case the master of the rolls, Sir J oh» Romilly, said: “ The principle on which I have always acted, and which is consistent with all the authorities, is this, that although the parent in these cases is a trustee for the children, it is only so far as is required for their maintenance and support. Thus if the daughters had married and were supported by their husbands, they could not come and complain that no allowance was made to them,” and the court held that “ when the children are otherwise provided for, and do not require support or maintenance, they are not entitled to complain that they do not receive a portion of the fund which is not required for their maintenance, education and support.” The principles applicable to the construction of the will now under consideration are also illustrated by the case of Paisley's Appeal, 70 Pa. St. 153. The testator gave to his wdfe the rents and profits of all his property, during her life, for her support, and the support and education of his children, under the direction of his executors, and the court held that this did not create a trust for the children, either in the widow or executors, nor give the orphans’ court, jurisdiction to call them to account, or to decree in favor of the children for the future administration of the estate; that the children had no present interest in any particular shares, and that the testator’s main object was to benefit the widow. In regard to the judgment of the court below the court say, “such a distribution as that decreed might .be most unjust and inequitable. It might leave the widow with all the cares and responsibilities of the household upon her, without an adequate support for herself.”

Similar considerations are entitled to great weight in determining the meaning of the words “provide for” in the will of P. N. Taylor, and upon the whole we are satisfied that the facts stated in the petition of Mrs. Elder are not sufficient to constitute a cause of action, and that the superior court erred in overruling the demurrer to the petition, as well as in the final judgment against Mrs. Taylor.

We do not decide that circumstances may not occur hereafter which would give Mrs. Elder a right to further provision, nor do we decide what mode of enforcing such provision might be adopted, but that she has no right to any share of the property, nor at this time to other relief.

Judgment reversed, demurrer to petition sustained, and cause remanded.  