
    JOSEPH B. ANDERSON ET AL. v. MARY HENDRICKSON, SURVIVING EXECUTOR OF THE WILL OF BENJAMIN HENDRICKSON, DECEASED.
    r The testator gave to his wife the use and interest of all his personal estate during her widowhood, and also the use and possession of all his real estate during her widowhood, and as is in Ms will after directed amd limited, in lieu of dower; and directed that, on the death or marriage of his widow, before his youngest daughter attained the age of eighteen years, the surviving executor should sell the personal property bequeathed to the widow, and place the proceeds at interest; and directed his Read farm to be sold when his youngest daughter attained the age of eighteen, or sooner, if his executors, or the survivor of them, should think it most for the • benefit of the estate; and that whenever the sale of the real and personal estate thus directed to be sold should be made, the same should be placed at interest and be equally divided among his seven daughters, share and share alike, and paid to them when they should respectively attain the age of eighteen years; and devised his homestead farm to his son when he should attain the age of twenty-one years; and directed that in case his son should die without issue before he attained the age of twenty-one, the said homestead should be sold, at the discretion of his executors, or the survivor of them, and the proceeds thereof be placed at interest and divided among his surviving children, share and share alike, and paid in the manner before directed; and appointed the widow and another executors. Held, that on a sale of the Read farm by the widow, as surviving executor, before the youngest daughter attained the age of eighteen, each daughter then under eighteen was entitled, on attaining that age, to her share of the proceeds of the sale, without interest; and that the daughters who had then attained eighteen were entitled to their respective shares of the proceeds immediately.
    Benjamin Hendrickson, by his will, dated May 25th, 1828, and proved in February, 1829, gave and bequeathed to his wife, Mary, the use of such of his movable estate as she might select, and also the-interest of all his other personal estate, during her widowhood; and also the use and possession of all the real estate whereof he might die seized, to have and to hold during her widowhood, and as is thereinafter directed and limited; declaring the bequests aforesaid to be made in lieu of dower, and in the full trust and confidence that she would bring up, support, maintain and educate in a proper manner, his children, (naming them,) and provide for them in the best manner, and watch over them with maternal tenderness and affection; and appointed her their guardian. The second item in the will directs that whatever movable estate his wife might not choose to keep, should be sol'd, and the proceeds thereof applied, in the first place, to the payment of debts and expenses, and the residue thereof be placed at interest, and the interest be paid annually to his said wife during her widowhood. The fourth item directs that in case his wife should die or marry before his youngest child attains the age of eighteen, the executors named in the will should sell all the personal estate bequeathed to his wife as aforesaid, and place the proceeds at interest. The fifth item directs his executors, or the survivor of them, whenever his youngest daughter attains the ago of eighteen, to sell the Read farm (a part of his real estate) in such manner as they, or the survivor of them, should deem most for the benefit of his estate; and in case they, or the survivor of them, should consider it most for the benefit of his estate to sell the same sooner, they, or the survivor of them, might sell the same at any other time. The sixth item is as follows: “ Whenever the sale of the real and personal estate thus directed to be sold, shall be made, then I order and direct that the same shall be placed at interest, on good landed security, and be equally divided among my before-mentioned daughters, share and share alike, and paid to them when they respectively attain the age of eighteen years.” He then devises his homestead farm to his son Benjamin, when he shall attain the age of twenty-one years; to hold to him, his heirs and assigns forever, subject to certain privileges of his wife, if she should be then living his widow, to wit, the choice of two rooms, and her comfortable support by the said Benjamin during her widowhood; and in case Benjamin should die» without issue before he attained the age of twenty-one years, then the said farm to be sold, at the discretion of his executors, or the survivor of them, and the proceeds thereof be placed at interest, and divided among his surviving children, share and share alike, and paid in the manner before directed; and Edward S. Mellvaine and his said wife were appointed executor and executrix of the will.
    The testator left seven daughters and a son. In April, 1837, before which time five of the daughters had attained eighteen years, the widow, as surviving- executor, sold the Read farm. Julia, the youngest daughter, attained the age of eighteen in December, 1842. The farm was sold for $3000. The account of the executrix, after being audited and stated by the surrogate of Mercer, was reported by him to the Orphans’ Court of that county, at the term of September, 1844, of that court.
    In that account, the executrix, is charged with the proceeds of the sale of the Read 'farm, sold April 11th, 1837, $3000; and interest on the same from December 27th, 1842, the day on which the youngest daughter came of age, $270.
    This account was excepted to before the Orphans’ Court, by the persons who are now the appellants in this court; and the exceptions were overruled, and the account was allowed by the decree of the Orphans’ Court, as stated by the surrogate.
    The exceptions to the account are—
    1st. That the accountant hath only charged herself with interest on said $3000 from December 27th, 1842, whereas she should have charged herself with interest on the same from April 11th, 1837, the day of the sale of the said farm.
    2d. That said account, both in the charge and discharge thereof, is in divers particulars erroneous, and ought to be re-stated.
    The case is here on appeal from the decree of the Orphans’ Court.
    
      S. G. Potts, for the appellants, cited 2 Pow. Dev. 4, 5.
    
      H. W. Green, for the respondent, cited 6 Cruise’s Dig. 292; 2 Roper on Leg. 329; 2 Bl. Rep. 738; 2 Tawnt. 113.
   The Chancellor.

The question is when and how the distribution of the proceeds of the sale of the Read form, sold by the widow as surviving executor, before the youngest daughter had attained eighteen years,, and after some of the daughters had attained that age, is required, by this will, to be made.

The particular clause in the will providing for the distribution, is in the sixth item, and is as follows: Whenever the sale of the real and personal estate thus directed to be sold shall be made, then I order and direct that the same shall be placed at interest, on good landed security, and be equally divided among my before-mentioned daughters, share and share alike, and paid to them when they, respectively, attain the age of eighteen years.

It is contended on the part of the appellants, that the proceeds of the sale, with the interest thereon from the time of the sale, are to be divided, &c., and paid to them when they, respectively, attain eighteen years.

It is contended on the part of the respondent, that the widow is entitled to have the whole proceeds kept at interest, and to receive the interest thereon till the youngest daughter attains eighteen years.

What is the meaning of the particular clause ? What does it require to be divided, &c. and paid to the daughters when they respectively attain eighteen years ? Is it the proceeds of the sale and the interest thereon ? If this is the provision, (it is so contended for the appellants,) it would not matter to the widow and executrix when the principal and interest were to be divided and paid; whether to each daughter as she attained eighteen years, or to and among all when the youngest attained eighteen years.

The words of the clause do not require this reading of it; and certainly the intention, as derivable from the whole will, is opposed to this reading of the particular clause. The first part of the will gives the widow the use of all the estate, real and personal, during widowhood, and as thereinafter directed and limited. This is sufficient to give her the use of the Read farm, and the interest of the proceeds of the sale of it, until she is restrained from or limited in the use or reception of the interest, by some positive subsequent provision. But there is no provision that the interest accumulate, or that the interest, as well as the principal, shall be divided among the girls when they respectively attain eighteen years. The construction, then, of the particular clause, as it seems to me, is, that it requires the widow to pay to each daughter her share of the principal money arising from the sale of the Read farm, when she attains eighteen years; the widow to receive, in the meantime, the interest on the whole, or such part of the proceeds of the sale, as shall from time to time remain at interest.

Taking this to be the true construction of the particular clause, the next inquiry is, is there any reason, derivable from other parts of the will, or from the will as a -whole, sufficiently imperative to constrain the court to depart from the language and import of the particular clause, and- to adjudge that the intention of the testator was, that the widow should have the interest on the whole amount of the-proceeds of the sale till the youngest daughter should attain eighteen years, (as is contended by the counsel for the réspondent,) notwithstanding the express direction of the particular clause, that the same shall be divided among the daughters, share and share alike, and paid to them when they respectively attain eighteen years ?

The fourth- item of the will directs that if the widow die or marry before Julia (the youngest daughter) attains eighteen years, the surviving executor shall sell all the personal estate, and put the proceeds at interest; and here the clause stops. The latter part of the fifth item provides, that a sale of the Read farm may be made before Julia attains eighteen. We have thus both real and personal property that may be sold before Julia attains eighteen, the proceeds of both of which are subject to the provisions of the sixth item, which directs that whenever the sale of the real and personal estate thus directed to be sold, shall be made, the same shall be placed at interest. Thus far, the proceeds of both real and personal property are directed to be placed at interest. The time and manner of distributing both these proceeds is then provided for, in one and the same manner, in one and the same sentence. They are to be equally divided among his daughters, and paid to them when they respectively attain eighteen years.

It-was uncertain which of these funds would exist before Julia-attained eighteen ; or whether either or both ; and in this uncertainty they are both subjected to the same rule. The rule was well suited-to the one fund, i. e., the fund to arise from the sale of the' personal -property on the death or marriage of the widow before Julia attained eighteen. It may not have been so well suited to the other fund-, i. e.-, the fund which might arise ■from'the salé of the Read farm before Julia attained eighteen. But I do notbsee that the court is called upon, or authorized, to make a new will for the testator,'-in-this respect. By the sixth item, the proceeds are to be placed at interest. This could only refer to a sale that might be made before Julia attained eighteen ; for, on her attaining that age, the widow’s use ceased. The farm, if not sooner sold, was then to be sold ; not for the purpose of putting the proceeds at interest for the widow, but for the purpose of dividing the proceeds among the girls. The frame of chis item, thus lar, brought to the consideration of the testator, distinctly, what should be done with the proceeds of the sale that might be made of the Read farm before Julia attained eighteen; the proceeds of which were directed to be placed at interest. Shall these proceeds not be divided till Julia attains eighteen ? or shall each daughter have her share on attaining that age? The clause answers, they shall be equally divided among the daughters, and paid to them when they respectively attain eighteen.

1 see no controlling reason why effect should not be given to this language; the only difference being, whether the widow should lose, the interest of one-seventh of the proceeds, when each daughter should attain eighteen, or enjoy the interest on the whole till the youngest should attain that age. The second item of the will provides for the sale of certain movables, and that the proceeds of the sale, after paying, &e., be put at interest, and expressly directs that the interest thereof be paid annually to his wife during her widowhood. When, therefore, in the clause under- consideration, the testator omits such provision, and employs language which, it is adm'tted, gives a different rule, it would be carrying constructicn too far to refuse to give effect to it. Would there have been any reasonable objection to the distribution clause if it had provided that each daughter should have her share on attaining twenty-one? Obligation for support would then cease. Shall we dfeny effect to the express language of the testator, because .lie chooses to consider eighteen as a proper age for distribution among daughters, or an age at which they are likely to provide for themselves, or be provided for ?

Again, it might be that the homestead farm would be converted into money before Julia attained eighteen; for, if Benjamin died without issue before he attained twenty-one, the will directs the executors, or the survivor of them, to sell the homestead, and put the proceeds at interest, and to divide the same among the daughters in the same manner as directed in reference to the proceeds of the Read farm; though, if Benjamin lived, the widow was to have the use of the homestead till he .attained twenty-one. And this provision in reference to the sale of the homestead farm on Benjamin’s death before twenty-one, without issue, is peremptory; yet the same rule is given as in reference to the Read farm, if that should be sold before Julia attained eighteen. Here the same question was brought to the testator’s mind again, and he gives the same rule as to when and how the proceeds of this sale shall be divided among the daughters, i. e., when they respectively attain eighteen.

I am of opinion that the decree of the Orphans’ Court is erroneous ; that each daughter, on attaining eighteen, was entitled to her share of the principal sum arising from the sale of the Read farm; and that the daughters who had attained eighteen at the time of the sale, were entitled to their shares immediately; and that, in reference to these last shares, the executrix ,should have been charged with interest thereon from the time of the sale, It will be decreed acordingly.  