
    *Carrington’s Executors v. Belt and Wife.
    Decided, April 12th, 1819.
    1. Wills — Construction—Powers of Executors. — A testator vested in his Executors his whole estate “to he by them divided, among1 his heirs from time to time, as they might think most conducive to the interest of his estate and family.” — By another clause he empowered them to sell his landed interests in a certain undivided estate, and in the State of Kentucky. According to the true construction of this will, his Executors were empowered to divide his other lands, and his slaves, among his heirs; but not to sell them; nortomake an unequal division; nor to give certain classes of the property to some of the devisees, and others to others.
    
    2. Same — Same—Rule of. — In a doubtful case, the Court should lean against a construction, which, in effect, would leave the daughters destitute of a permanent provision, by giving them personal, instead of real property.
    3. Same — Same—Rowers of Executors. — In the case stated, altho’ the words giving power to divide the estate, “from time to time, &c.” are very extensive, the Court should rather consider them as authorising the Executors, under circumstances, to deliver the property to the devisees, before attaining legal age or marriage, than to hold it up, indefinitely, thereafter. If, thereafter, they could, under any circumstances, suspend an allotment, the circumstances must be such as to render the division more ini urious to the interests of the estate and family, then, than at a future period.
    
      4. Same-Chancery Practice. — If, undersuch Will, the Executors refuse to make an equal allotment to a devisee of full age or married, it may be made by Commissioners appointed by, and acting under the control of, a Court of Equity.
    Codrington Carrington of the County qf Cumberland by his Will, dated August 6th, 1811, appointed Doctor Samuel Wilson, and Alexander Carrington, (one of his Sons,) his Executors, and vested in them the whole “of his estate, to be by them divided, among his heirs, from time to time, as they might think most conducive to the interest of his estate and family. He also empowered them to dispose of all his landed or real interest in the undivided estate of Edward Carrington deceased, and to sell all his interest in the lands heired from his father’s Estate in the State of Kentucky; and to use the assets arising from such sales, as, in their opinions, might seem most conducive to the interest of his family.” He left six children; one of whom (Elizabeth Anne,) having married Addison Belt, a Bill was filed by the said Belt and wife-, in the Superior Court of Chancery for the Richmond District, against the Executors, and othe*- children of the Testator, all of whom were infants, praying a settlement of the administration accounts, and allotment to the Complainants of one sixth part of the estate real and personal.
    A guardian ad litem being appointed, an answer was filed for the Infants, referring to and relying upon the “'Answer of the Executors, which sjated, that, “by the terms of the ‘Will, (as they were advised,) “a discretionary power was vested in them, as to the time and manner of allotment, or allotments, and division, to be made among the children: that the testator died seised of two tracts of land in the County of Cumberland, on Willis’s River; one containing about 1470 acres, and the other about 260 acres;' that he also left from 70 to 80 slaves, or thereabout:— his share of the estate of Edward Carring-ton deceased',' had not been disposed of; and, as it was subject t'o division among a number of persons, it was uncertain when it might be: — the Kentucky. lands were believed to be of very little, if any, value. Tbe Respondents were' of Opinion, that the lands in Cumberland could not be equally divided into six different tracts, without greatly impairing the value of each; that, if real estate could be assigned ’to some of the children, and personal to others, all would probably be benefited thereby. They were ready to submit to the Court a plan for a division, or to make such division, if the Court should think they or either of them had authority to do so. They thought that the whole property- ought not now to be divided, but were willing, under the power given them by the Will, to allot to the plaintiffs a. portion of the said prop-érty. Monies and other supplies would be wanting for the education and maintenance of the'younger children-, and for the support and care of the aged mother of the testator, who was a member of his family, and in a state of great infirmity of mind as well as body.” Sundry depositions were filed, on both,sides, containing various and conflicting opinions of Witnesses, concerning the management of the . estate by the Executors, and the expediency of a division of the lands in Cumberland into six equal jiarts. Chancellor Taylor, at January Term 1819, appointed Commissioners' to allot to the plaintiffs one equal sixth of the lands and slaves, of which the testator died seised and possessed, upon their giving to the Executors bond and security for refunding *their due proportions of any debts or demands which might thereafter appear against the estate, and the costs attending the recovery thereof; and also directed the Executors to render an account of their administration, before a Commissioner of the Court, to be by him reported, &c.
    From this interlocutory decree, an appeal (being refused’ by the Chancellor,) was gran ted by this Court, upon petition, 
    
    
      
      See monographic note on "Wills” appended to Hughes v. Hughes, 2 Munf. 209.
    
    
      
       Note. See Kemp v. Kemp, 5 Vesey, .ir. 849 — 826.
    
    
      
       See Acts of 1815, C-. '8, § 8; ft. Code of 18Í9, c. 6'6, § 5?.
    
   JUDGE ROANE

pronounced the Court’s opinion as follows:—

The Court is of opinion, that, according to the true construction of the Will of Cod-rington Carrington, among the proceedings, his Executors were empowered to divide his estate among his heirs, and not to sell it. This result arises, not only from these precise expressions being used therein, in relation to all his Estate except his interest in the estate of Edward Car-rington deceased, and in the lands heired from his father in Kentucky, but also from his empowering his executors to sell these last mentioned interests. That circumstance, added to the other, excludes the power to sell the interests in question. In effectuating this object, it was the intention of the testator to select his executors, in preference to others, for the purpose of a judicious division and allotment; but not to give them a discretion to sell the property, instead of dividing it', or to make an unequal division of it.

The Court is also of opinion, that the Will does not enable them to give certain classes of the property to some of the dev-isees, and others to others. In a doubtful case, the Court would lean ágainst a construction which, in effect,' would leave the daughters destitute of a permanent provision, by giving them personal property, instead of real, and which on marriage would become the property of their husbands. Alt'no’ the words of the Will giving power to the Executors to divide the Estate, “from time to time,” &c., are very expensive, the Court rather inclines to consider them as authorising the Executors, under circumstances, to deliver the property to the devisees, before they have at-tainedi their legal age or ^marriage, than to hold up the property indefinitely, thereafter, and when the children of the testator, and their families, might be suffering therefor. If, under any circumstances, this power would authorise the Executors to suspend an allotment after the devisees’ had come of age or were married, these circumstances must be of a character to render the division more injurious to the “interests of the estate and family,” then, than ata future period. No such circumstances are pretended to exist in the case before us; and those relied on would always equally apply agaiu'st the division of the lands in question.

The Executors having declined an allotment in favor of the appellees, for the reasons they have assigned, no alternative was left them but to apply to a Court of Equity to have the division made by others; and, on the report of the Commissioners, the particulars of the division will be open to objection and reform. The Court of Chancery will, also take care that no injury ensues to the estate by making the division at an unseasonable period.

For these reasons, we approve of the Decree ; which is to be consequently affirmed.  