
    Esther Holbrook, Widow of Silas E. Holbrook, deceased, vs. Eliza Gaillard, and Peter Gaillard, her husband, and others.
    Heard before Chancellor Desaussuhe, Charleston, January Term, 1836.
    This is a question which has arisen in a respectable family, on the construction of the last will, and a codicil thereto, of their mother. They all desire to do what is right, and submit to the Court the point on which they differ in opinion, with a strong inclination, that the wishes of the complainant should be gratified. It is refreshing to the mind amid the many fierce controversies and family litigations about property, which sometimes embarrass, and always distress the court, to meet occasionally with a case like the present, where family friendships are maintained, and the defendants are desirous, that the claims of the complainant, should be sus. tamed if possible.
    The brief of the bill and answer, and arguments of the counsel, submitted in writing, state the case, arid the difficulty which arises. I have read with attention, the material clauses of the will of the testatrix, and the codicil thereto, and have examined the arguments of the counsel with care. I have no doubt, that the explanation of the defendants counsel is correct; and the object of the testatrix, in making the codicil to the will, was to put her daughter Mrs. Esther Holbrook, on che same footing with her othei daugh. ters, with regard to her share of the general residue of her estate, bequeathed to them, equally to be divided among them. Now in reality, they were already on the same footing in appearance, and according to the letter of the will. The devises and bequests were precisely the same to each of the children of the testatrix, and their lawful issue.
    Then comes a provision as to the shares devised to the daugh. ters, made with a view to protect the same from the marital rights of their husbands. This provision gives the shares of the daughters, to the executors of the will in trust, for the sole and separate use of the daughters respectively, for and during their natural lives ; and from the death of such of her daughters, as should or might die without issue surviving them, to and for the use of her other' children surviving her ; and the issue of such as did not survive her to be divided, &c. &c. And as to such daughters, as should leave issue alive at their deaths, in trust, and to the uses and purposes, which they might declare as to their respective shares, by a last will and testament, or by an appointment duly executed, and in default of such appointment, such share shall be to the use of the right heirs and distributees, of my daughters so dying, freed from further trusts. There was, however, a real and important difference in the position of the daughters. All of them, at the date of will of their mother, (5th Dec. 1834,) were married ; and all of them had children, except the complainant, Mrs. Esther Holbrook. After the execution of the will of her mother, her husband died,she having no children and being in middle life. The presumption was, she would not leave any. On the 10th July, 1835, the testatrix made and executed a codicil to her last -will and testament, in which che says, it is her “ will that that part of her will, leaving her daughter, Esther Holbrook, only the income of that portion of her property, which she bequeathed her, should be so altered, as to put her on the same footing in the disposal of it, as her other daughtersThis is badly worded, and is subject to the criticism of the counsel; that to put Mrs. Holbrook, on the same footing with the other daughters, was to give her the power of disposing of her share, if she had children, and if not, her share was to go at her death, to the surviving children ; and the issue of such as were dead, she was already by the will, on the same footing with her sisters. The presumption is, that* findii g Mrs. Holbrook’s husband was dead, she herself in middle life, liavii g no children, and no probability of having children, the object of the codicil was ■to put her on a better footing, and to give her more than the mere income of the estate. It was to correct that. the codicil was expressly made. It was substantially saying, my other daughters have children, and the power of appointment. You have no children, nor the probability of any. I have given you by my will, only the income, (with limitations over,) without the power of appointment, unless you have children. • This is unequal, I will there* fore put you, though without children, on the same footing as to the disposal of their shares of the estate, as my other daughters who have children If this be not die sound interpretation, then the' codicil was a mere nullity, without meaning, and worked no changó in the situation of Mrs. Holbrook ; though‘it expressed, and avows Its object to be. to alter her interesi in the share she had given her, to something different from, and more that, only the income.
    The circumstances stated are extrinsic to the will and codicil and the Court rtsorts with the rnóst extreme caution and reluctance^to the evidence oi extrinsic circumstances in the construction o Wills. Yet, of necessity it is driven so to do, in some cases, or see the very object and intentions cf testators defeated, by a too rigo. rous adherence to the rule of excluding all evidence, which might; throw light or lead to the discovery of testator’s intentions. Therefore, the situation of the family is sometimes- taken into view in order to enable the court, to foim a judgment of the intentions of" testators.
    It is a painful duty imposed on the court, thus to hunt out, and conjecture the intentions of testators. But the negligence and carelessness of parties, the obscurity of the provisions of their wills, toree them to do so, In Parsons vs. Lance, reported in Ambler 557, and in 1st Ves. Sen. 190, and in White and 'Barber, 5 Burrows, examples occur, w hich show how far the court goes to discover the intentions of testators, and to prevent their wills from being used to injure their own families.
    I am then very strongly inclined to say that the true,construction of the codicil of Mrs. Gourdm’sVill, was, that it was her intention to authorize and enable her, not only to enjoy the income, as she would under the will, but dispose of the estate absolutely — though she had no children, and should leave none.
    It was, therefore, competent to the other daughters to agree to' confirm this interpretation of the codicil, and to put her mind at éase on the subject ; which they have wisely and kindly done, as far as they felt themselves competent to do. On the subject of the question of the estate in the other daughters, and their rights, it was urged that they had merely estates for I ife, and could cot bind the estate of their children,- to whom the limitations were made.
    The doctrine relied on, is founded on ¡he rule in Shelly’s case. As to the rule in Shellv’s case, iu reality there was no decision by the court, (1 Co. 93,) but the rule was expressed in the argument', as an acknowledged rule of law, not questionable. This rule has been the subject, or the occasion of immense litigation and discussion, of the most difficult and entangling nature — and its value as a rule of property, has been very much questioned, for the distinctions are so numerous and intricate, and the refinements so complex, that it has been exceedingly difficult for the most experienced oouusel to advise with certainty, or the most learned judges to decide satisfactorily, on all the nice shadings of different cases before-them.
    It is not my intention to enter on its discussion here. It is sufficient to say, that I am of opinion the estates in question, devised by Mrs. Gourdin to her daughters, vested in the ancestors, so as to enable them to dispose of them, and to- contract respecting them. And that having agreed to release their interests in the limitation-over, of the share of Mrs. Holbrook in her mother’s-estate, under her will and codicil, they may do so with safety, and without the violation of any right of their children.
    It is ordered and decreed, that the defendants, the daughters of' the late Mrs. Gourdin, and their respective husbands, do in pursu. anee of their agreement, join in the execution of such deeds, or releases, as may be sufficient to give full effect to the codicil of the-will of Mrs. Gourdin, in favor of her daughter, Mrs. Holbrook, and to enable her without disturbance, to dispose absolutely of her share of the estate in question.
    HENRY W. DESAUSSURE.
    Filed April 23-, 1636-.
    
      Grounds of Appeal.
    
    1. That if the codicil of the 10th July, 1835, gives tlie complainant an absolute power of disposition over her share of testatrix’s estate, it is unnecessary for the defendants to execute any releases, or other deeds, for the purpose of giving her what she already has.
    2. That if the codicil does not give her the power in question, the defendants have not such estates in, or power over the property devised to them at her death, in- case she should leave no issue surviving- her, as would enable them to release or dispose of it, otherwise than by last will or appointment, to take effect if they should leave issue surviving them.
   Chancellor íIakpek

delivered the opinion of the court.

It does not appear to me, that the cases referred to by the chancellor, would authorize the resorting to extrinsic circumstances, for the purpose of giving construction to a will in such a case as the present. The general rule is certainly, as laid down by Lord Mansfield, in Doe vs. Fyldes, Cowp. 840, “ that a will shall be construed by what appears op the face of it, and not upon circumstances of matter extrinsic.” See also what is said by the master of the rolls, in Bootle vs. Blundell, 1 Merv. 216. This is in conformity to the rule, applicable to all instruments, that when there is a patent ambiguity on the face of the instrument, extrinsic testimony shall not be received to explain it. The case of Fonereau vs. Poyntz, 1 Br. C. C. 472, is one in which it has been sometimes supposed, that a different rule was adopted. That was a case, in which the testatrix gave various legacies of stock in long annuities. There was an ambiguity, whether the various sums mentioned, of £500, of £201), and £100, were intended to be the capital of the legacies, or whether annuities of those amounts were intended. If the latter construction prevailed, the legacies would more than exhaust the estate, and disappoint residuary legatees. Lord Thur-low admitted evidence of the amount of stock in long annuities possessed by the testatrix, for the purpose of aiding in the construction. He says, that he rejects all the declarations of the testa, irix, and all statement of her property, but “ that every evidence as to the description of the subject, .the testatrix has described, must be admitted. As in the case of a specific legacy, you must hear evidence concerning the subject to which the will applies, in order to see whether the description applies aptly, or not.” In Druce vs. Dennison, 6 Ves. 401, Lord Eldon censures what Lord Thurlow is made to say, in Jeacock vs. Falconer, 1 Br. C. C. 296, that “ evidence cannot be received to prove what the testator meant, by the words used in his will; but it may as to facts upon which he made his willwhich be says, is not intelligible ; and as to the case of Fonereau vs. Poyntz, says, he understands Lord Thurlow to have admitted the evidence, on this ground, — “ that the testatrix having given as a species of stock, that which was of no known denomination of stock, the will shewed she meant to give something ; but did not ascertain the subject she meant to give. Therefore, Lord Thurlow looked at the property, in order to prove what she meant; the will proving that she meant to give something, but the description of the subject not being intelligible. That was not contradicting any description of the will.” Lord Eldon acted on a similar principle, in the case before him ,• but that can have no application to a case like the present. The evidence of the extrinsic circumstances being rejected, we concur with the chancellor, that the codicil can have no effect in enlarging the power given by the will.

Then we are .to inquire what interest she takes under the will; The will gives in trust for her separate use, during her life, and if she shall have issue at her death, in trust for such uses, interests, and purposes, as she by will duly executed shall appoint ; but if she shall have no issue, then to the testatrix’s surviving children, or the issue of such as may have previously died. In Standen vs. Standen, 2 Ves. jr. 589, Lord Roslynn seems to intimate, that-where the estate was given to the legatee for life, with an unquali» power of disposition at her death, her estate was absolute. If this were so, the complainant would have taken the absolute estate, sub-ectonly to be divested on the event of death without leaving issue, Rut there were other grounds, on which Lord Iloslynu, rested his decree; and on these only, Sir Wm. Grant, commenting on the case in Bradley vs. Wescott, 13 Ves. 452, thought it could be supported. I am satisfied upon an examination of the cases, that the yule is as laid down in the last mentioned case. “ The distinction is, perhaps, slight, which exists between a gift for life, with a power of disposition superadded, and a gift to a person indefinitely, with superadded power to dispose by deed or will. But that distinction is perfectly established, that in the latter case the property vests. A gift to A| and to such person as he shall appoint, is abso? lute property in A without an appointment; but if it is to him for life, and after his death to such persons as he shall appoint by will, be must make an appointment to entitle that person to any thing.” That is, it will not pass by the legatee’s own will, under the general description of his property or estate, without reference to the power. Such was the case of Reid vs. Shugold, 10 Ves. 370. The casa pf Hale vs. Margirum, 7 Ves. was one of a gift indefinitely, with a superadded power of disposition. In Buford vs. Street, 16 Ves. 133, in addition to the power of disposing by will, the legatee had also power to dispose in her life time, from time to time, by deed or writing ; and on this eircnnistan.ee, the case was distinguished front! Reid vs. Shugold, and the legatee held to talje an absolute estate. And the limitation in default of appointment, to the use of the right heirs and distributees of my said daughters, or daughter, so dying as is last aforesaid, freed and discharged from all other and further trusts,” does not come within the rule in Sh dly’s case, the gift to the tenant for life beiqgqf an equitable estate, and that to the heirs of the legal estate.

Then with a view to the question, of the competency of the defendants, to release to the complainaut, so as to give her the power pf disposing of her portion of the estate, it is necessary to inquir® what interest they have in that portion. Complainant takes an petate for life, with a contingent remainder to her brothers and sis; ters, in the event of her death without issue. It is contingent also in another respect. If any of them should then be dead, having left issue, then it is to the issue, who are Substituted for them, and take as purchasers under the will. In the latter event, it is plain, their release could operate nothing ; the issue not taking through or under them. If they should he alive, however, their release would bind them to the extent of the interest they take. But that would be, according to the construction already given, only a life estate ; t,he remainder limited to them, being “ subject to the same limitations and conditions, as are expressed of and concerning the original shares.” This, then,.would be the effect of the release claimed, to give to complainant the life estate ml those of her sis. ters, who shall be living at the time of her death, with the same contingencies as before. It is true, that those who should after-wards die leaving issue might appoint by will, in conformity to her disposition ; but this has nothing to do with the release. Defend, ants say, they agreed with complainant, “ to execute such deeds, and do such acts, as should be necessary to give complainant power to dispose of her share of their mother’s estate, if she should not have any issue ; but the agreement was to do so, provided they, these defendants, have such’ estates as to enable them to .do so.” According'to the view, I have taken, they have not such ¡estates as enable them to give her any certain power of disposition ; but only to the extent, and subject to the contingencies mentioned. If they are disposed to release, to the extent’of their power, complainant needs no aid of this court. She may have a right to come into this court, to have her rights in the property declared, and this has been done ; but for every other purpose, the bill must be dismissed. And it is ordered and decreed accordingly.

itlAZVCK, for motion.

Finley, contra.

Filed 2d March, 1837.

WILLIAM HARPER.

We concur,

3.' JOHNSTON,

JDAVID JOHNSON.  