
    
      John W. Garrett et al. v. Thomas Garrett et al.
    
    Where testator leaves his whole estate to his wife, for life, or during widowhood, remainder to his children, and makes no final provision, even by implication', of the usufruct, the court will not imply any control of her authority or discretion, as to the usufruct bequeathed to her.
    Whatever may be the generality or the comprehensiveness of the terms used, if it be manifest, from the context of the will, that the residuary bequest was of a particular fund or description of property, or other certain resirki/um, nothing else will pass.
    If the executrix, tenant for life, purchase land, and have the conveyance made to tire estate of the testator, this will be, prima facie, a declaration of trust by the executrix, and the land will be subject to partition among the remaindermen.
    If the tenant for life surrender the estate to the remaindermen, they being of full age, and it is appraised and divided among them, in their presence, and with their consent, neither they nor their representatives can afterwards charge this surrender as a waste of die estate.
    
      Before Dunkin, Get. at Edgefield, June, 1846.
    Dunkin, Ch. The will of John O. Garrett, deceased, is dated 19th July, 1821, and the testator died on the 9th February, 1833. His widow, Elizabeth Garrett, survived her husband, and died on the 13th October, 1843, leaving a will, duly executed, and bearing date the 9th March preceding.
    The principal questions, arise on the construction of these wills. It may not be improper, however, to premise that it is much easier to suppose what were the probable impressions of the testator, John O. Garrett, as to the course his estate would take, than to fix any disposition of it, as declared by his will.
    Both at the time of making his will and at his death, his family consisted of a wife and three sons, Robert, Henry W. 'and Thomas. From the language of the will, the Court would infer that at that time they were all living together.
    It is provided, that if the testator’s widow “remains single, she should enjoy the whole of his estate, both real and personal, during her life.” But if' she married, he directed the whole of his estate to be equally divided between her and his sons, viz : Robert Garrett, Henry W. Garrett and Thomas Garrett, and “ at her death, her said fart to be equally divided among my said three sons.” It appears quite clear to the Court, that the last limb of this sentence refers to the contingency of the widow’s marriage, in which event the testator gives her a life interest in a child’s share.
    By a subsequent clause, he directs that there “ should be no appraisement of his estate during his wife’s Avidowhood.” Except a trifling gift of a saddle horse, &c. to Thomas Garrett, the testator makes no other direct disposition whatever of his estate. It is true that he prohibits the sale of the negroes, on the death of his Avidow, and uses such language in regard to the appraisement, as leaves no douht whatever of his intention, and would Avell warrant the Court in construing it a bequest to his sons.
    Having carved out a life interest to his wife, the testator left to the law to provide for the ultimate disposition. He probably took it for granted that his estate would then pass to his children, and only provides as folloAvs: “It is my will, that if either of my said sons die without lawfully begotten heir, that his part of my estate return to my surviving children, or to their laAvful heirs.”
    In reference to the usufruct, given to his widoAv in such ample terms, the testator makes no final provision, even by implication. The Court is left to conjecture that the testator supposed, if any thing was saved or accumulated, that the widowed mother would probably leave it to her children, for to whom else would she be likely to bequeath it? But it is enough for the Court, that the will does not even imply any control of her authority or discretion, as to the usufruct bequeathed to her.
    It seems that the probable anticipations of the testator would have been fully realized, if those who lived with him and best understood his Avishes, had survived until the final settlement of his estate. But in twenty-one years, many changes had taken place. Tavo of his three sons had died before their mother. The representatives of the elder brother, Robert, gave notice that they should claim, by possession, a tract of land Avhich had belonged to the testator, but of which he had put his son in possession, Avho, with his family, had held it for many years. On this claim it is not proposed to intimate any opinion, as it is the appropriate subject of inquiry in another tribunal. But it is not to be disguised, that the announcement of the claim, and of the determination to maintain it, gave great pain to the widow and executrix of the testator, and caused her to make such a will as she never otherwise would have made, and Avhich she was always anxious to cancel, if the claim would be abandoned, and the land be brought into distribution with the rest of her husband’s estate.
    Mrs. Garrett said, (testifies the witness, Charles Hammond,) “That if they, the children of Robert Garrett, deceased, would abandon the claim to the land, she would destroy the will, and put them all on a footing. Thomas Garrett, (the defendant,) was present, and said he was perfectly willing.” Other counsels prevailed. The claim was not withdrawn, and the will of Elizabeth Garrett, cutting off these grand children, was left unrevoked.
    On the part of those interested, under Mrs. Garrett’s will, it was contended that, in addition to the direct benefit which she derived under her husband’s will, she was entitled to one-third of his entire real and personal estate, (except the negroes,) absolutely, as he has made no ultimate disposition of it; and that this interest in her husband’s estate passed, by the true construction of her will, to the defendant, Thomas Garrett, and the children af his deceased brother, Henry W. Garrett.
    Mrs. Garrett’s will is in the following terms, viz:
    “ First. My will and desire is, that all my property, consisting of one tract of land, containing two hundred and sixty-nine acres, bought of G. A. McKie and Thomas McKie, three negroes, Clara, and her children, Richard and Maria, six mules, two wagons, &c. should be exposed to public sale, by my executors, hereinafter named; my notes of hand, amounting at this time to two thousand six hundred and fifteen dollars; judgments at the court of Edgefield, amounting to three hundred and seventy dollars; cash at present, (including part of my crop of cotton,) amounting to five hundred and forty dollars; all of which property I give and bequeath, in the manner following, to wit: I give and bequeath to my grandson, John W. Garrett, five dollars, to him and his heirs. Secondly. I give and bequeath to John A. Houston, and his wife, Amy, five dollars, to them and their heirs. Thirdly. I give and bequeath to my son, Thomas Garrett, one half of the residue or remainder of my estate, to him and his lawful heirs. Fourthly. I give and bequeath unto my son, Thomas Garrett, one-seventh part of the remaining half, in trust, for the benefit and behoof of Richard W. Johnson’s wife, Elizabeth, and her heirs. Fifthly. I give and bequeath to my son, Thomas Garrett, one other seventh part, as aforesaid, in trust, for the use and benefit of the wife and children of my grandson, John C. Garrett. Sixthly. I give and bequeath one seventh part of the remaining half of my estate, as aforesaid, to Henry Key, and his wife, Mary. The remaining four sevenths of the one half of my estate, as aforesaid, I give and bequeath to my four following named grand children, to wit: Sarah Ann Garrett, Caroline T. Garrett, Susannah Garrett, and Martha Garrett, each one seventh part, to them and their heirs.”
    The question submitted is, whether the object, purport and effect of this will is to dispose of the property therein specified, or will pass any other property, real or personal, to which the testatrix was entitled. The subject was very fully considered in Peay 8f Pickett v. Barber, Hill E. R. 95. The English cases, as is there said by the court, go very far to favor the residuary legatee, because any thing, not disposed of went to the executor, but that no such reason here exists for any strained construction, as the law makes distribution of the residue. Whatever may be the generality or comprehensiveness of the term used, if it be manifest, from the context of the will, that the residuary bequest was of a particular fund, or description of property, or other certain residuum, nothing else will pass. This is the result of the cases. On this principle, Lord Kenyon, in Doe v. Buckner, 6 T. R. 610, held that although the testator used the terms, residuum of my estate and effects, yet on the context of the will, a house, the only freehold of the testator, did not pass. Looking at the other parts of the will, he thought the intention might well be inferred to dispose only of the personalty. The question, says the Chancellor, in. Peay v. Barker, is whether by the terms all the rest of my property, the testator meant the general residuum of his estate, or the residuum of a particular description of property; and it was in that case ruled, that although these terms, when unaffected by the context, were sufficient to cover all that the testator was. worth, yet when construed with reference to other provisions of the will, they must be restricted to the particular property described, and did not include the negroes of the testator, but that they were distributable among the next of kin. The will of Mrs. Garrett is drawn with unusual minuteness,, and particularly in reference to the description of the property of which she intended to dispose. She first directs her tangible property, (which she specifies,) to be sold by her executors. She then describes her notes of hand, and seems to have been so particular as to calculate the amount due on them, at the time of making the will, her judgment at the •court house, the amount of cash on hand, are specified, as it would seem, with an abstract before her. If she was at that time the owner, in addition to this property, of one-third of her husband’s real and personal estate, it is impossible to characterize the omission as a defective enumeration, like the case of Cambridge v. Roues;. She could not have tor-gotten it. Leaving nothing to conjecture as to what she had in her contemplation, are there any terms used which can only be satisfied by including more than was in her contemplation, and more than she described? After directing the sale of the tract of land which she had purchased, and of her three negroes, and enumerating her choses in action and cash then on hand, all of which property, continues the testatrix, I give and bequeath, in the manner following, to wit: she then gives five dollars a piece to John W. Garrett and his sister, and proceeds, I give and bequeath to my son, Thomas Garrett, one-half of the residue or remainder of my estate. Of the remaining half, she gives three-sevenths as stated, and concludes, the remaining four-sevenths of the one-half of my estate as aforesaid, I give and bequeath to the other four grand children.
    The former part of the will seems to the court to be intended as a description of the property on which the will was to act, all of which property, she proceeds to dispose of. But she has only bequeathed ten dollars of it until the residuary clause presents itself. It might be thus transposed without any violation to the sense or manifest intention, all of which property, with the exception of ten dollars to John Garrett and his sister, I give and bequeath to my son, Thomas Garrett, and the children of my son Henry, in the proportions specified. This language would be entirely unambiguous, and the residuary clause would necessarily be restricted to the property specified. The court is of opinion, that this is the true construction of the will; that the one-half of the remainder of my estate, given to Thomas Garrett, and the remaining four-sevenths of the one-half of my estate as aforesaid, given to the four grand children, refer to all of which property she had expressed her purpose, and include nothing more. See Woolman v. Kenworthy, 9 Yes. 142. As to the tract of land purchased by Elizabeth Garrett from John Griffith, in 1835, the court has no other evidence or information than that the conveyance was made to John O. Garrett’s estate. Prima facie, this would be a declaration of trust by the executrix, and the land would be subject to partition among the heirs.
    The court has reflected much on the argument submitted in relation to the partial partition of negroes made in November, 1839. It is very difficult to impeach this transaction in any way. It was the action principally, perhaps, of the executrix. But it purported to be quoad an execution and discharge of her trust. It was for the benefit of the remaindermen, so purported to be, and was so understood. Robert Garrett, Thomas Garrett, and the administratrix of Henry Garrett, were all present. Highly respectable gentlemen had been selected to make the arrangement and division. Capt. William Garrett, the testator’s half brother, was one of these appraisers. He proved very fully and satisfactorily, the presence and consent of all the parties. He proved also the ■written statement of the negroes, (certified by the appraisers) allotted to Thomas Garrett, by which he was to pay to the other shares thirty-three dollars and thirty-three cents for equality, and he testified that a similar paper had been given to each of the other parties. Robert Garrett carried home the negroes allotted to him, and held them until his death, in January, 1843. Those allotted to the administratrix of Henry W. Garrett, were sold soon after the partition, as part of his estate, and Thomas Garrett has held those allotted to him, in quiet and undisturbed possession, from the time of the partition in November, 1839. The object and effect of this arrangement cannot be mistaken. Robert and Henry Garrett had received some negroes from the testator, and they had also received two from the executrix, lent to them, as directed by the will. Thomas had received none. The primary object was to place Thomas on a footing with his brothers, as to these negroes, and Mrs. Garrett, advanced in years, desired to surrender her life interest in the negroes, to be thus allotted to the several parties. For this purpose, Robert and the administratrix of Henry carried their negroes to the house of Mrs. Garrett, and the proceedings took place, which have been described. Robert was perfectly satisfied, made no complaint, and when the negroes allotted to the administratrix of Henry W. Garrett, deceased, were afterwards appraised and sold as part of his estate, he interposed no objection.
    It seems to the court, that the complainants in the cross bill have no interest whatever in the question, but as the legal representatives of Robert Garrett deceased, and in that character they are precluded, by the acts of their intestate, from objecting to the validity of this arrangement. It is argued that it was a devastavit on the part of the executrix. But, if the testator had bequeathed all his negroes to his wife for life, with remainder to his children, and the children being all of age, the mother had surrendered her life interest, and the negroes were divided, could this be termed a devastavit? If so, was it a devastavit of which those should complain, who were parties to it? The court is not satisfied, that either the executrix or the other parties mistook the will of the testator, or violated its provisions. Perhaps the most doubtful proceeding on the part of the appraisers, was in increasing the share of Robert, in consequence of his trouble in raising the young negroes. But the persons making the allotment, were selected or approved by the parties themselves. Their act was the act of the parties, and if more doubt existed, it may well be placed on the footing of a family arrangement, which ought not to be lightly disturbed.
    Then it was said the life tenant must keep up the estate, and leave it in the condition in which it came to her possession. There was no proof that this had not been done, nor would the question seem very material, if the court has given a proper construction to the residuary clause of Mrs. Garrett’s will. But it was agreed at the hearing, that an inquiry would be taken on the fact, if it should be deemed expedient to urge this question. On the subject of the tract of one hundred and twenty-two and a half acres, the title to which was taken in the name of the defendant, Thomas Garrett, no evidence was offered to impugn his answer, and he must be held as a trustee for the children of Henry Garrett, deceased, and himself in equal moities. An issue has already been directed to determine the validity of the claim on the part of the heirs of Robert Garrett, deceased, to the tract of land now held by them, and no further order as to this tract can be made until the title is ascertained.
    It is ordered and decreed, that Thomas Garrett account for the estates of John C. Garrett, deceased, and Elizabeth Garrett, deceased,, on the principles of this decree. It is further ordered and decreed, that a writ of partition issue to divide the real and personal estates of the said John C. Garrett, deceased, and Elizabeth Garrett, deceased, among the parties thereto respectively entitled.
    It is finalty ordered, that the parties have leave, from time to time, to apply for such further orders as may be necessary to carry this decree into effect.
    Costs to be paid out of the funds of the estate of John C. Garrett, deceased.
    The plaintiff, Thomas Garrett, appealed, and moved the Court of Appeals, in Equity, to. reverse so much of the circuit, decree, as decides that the will of Elizabeth Garrett disposes of only such portion of her estate as is enumerated therein, upon the ground:
    That, according to the correct construction of the residuary clauses of-the said will, the testatrix has disposed of her entire estate.
    The defendants, John W. Garrett and John A. Houston, appealed, and moved the Court of Appeals to modify the Chancellor’s decree, on the grounds,
    1. That the partition of 1839, having been made by mistake, without any design to compromise rights, and in violation of the will of John C. Garrett, should be held invalid..
    
      
      2. That the will of John C. Garrett disposes of his whole estate, (except the small bequests to Thomas Garrett,) in equal shares, amongst his three sons, after the death of the widow, Elizabeth, including even her accumulations during life.
    3. That the King tract of land, having been bought by the executrix, Elizabeth, with the funds of the estate, for the benefit of all of the legatees, and conveyed by mistake to Thomas Garrett, the resulting trust in favor of said legatees, as to said lands, could not be rebutted by the naked oath of Thomas Garrett.
    4. That the estate of Elizabeth Garrett, the tenant for life, should be held to account for the estate of John C. Garrett, in the condition in which she received it.
    Carroll, for the complainants.
    Wardlaw, for defendants.
   Per Curiam.

We concur in the judgment of the Circuit Court. It is therefore affirmed and this appeal is dismissed.  