
    Armsted B. Hill, executor, plaintiff in error, vs. Elizabeth M. Clark et al., defendants in error.
    .(Atlanta,
    January Term, 1873.)
    Wills — Agreement to Relinquish Dower — Equity Jurisdiction. — A testator directs his executor “to pay an annual sum of $500 00 to his wife, out of the net income of his estate, in semi-annual installments.” In another item of his will he refers to this bequest as an “annuity devised to his wife.” Nothing else in the will defines or limits the term of years during which it is to be paid.
    In four several items of his will he further gives, after deducting the foregoing annuity, one-fourth of the annual income arising from his estate to four several sets of legatees. For three of said shares in the income trustees are appointed. The fourth share is to be paid on certain conditions, with a remainder created therein. No time is appointed for the distribution of the estate, or the payment of any share thereof, except as to the income.
    The widow applied for dovrer in the land and the same was assigned to her. Subsequently she executed an agreement with the legatees whereby she relinquished Her dower “to the estate and legatees,” on ^condition that the legatees paid her during estate might be distributed, but the relinquishment to be void if the Courts would not decree a distribution. This the legatees and the trustees appointed in the will agreed in writing to do. The executor was one of the trustees. The beneficiaries of the trusts are femes covert, and their children born and to be born.
    The executor filed a bill in chancery alleging the foregoing facts, further stating that the conditions on which the fourth share in the annual income was to be paid had happened, and asked the direction of the Chancellor as to the execution of the will, that the property might be divided and turned over to the legatees and trustees “on the same basis, terms, conditions and limitations as the annual income had been given,” etc., and that the right of the widow to the annuity might be secured by a proper decree. To this bill the widow, the trustees, etc., were parties, and their answers admitted the facts as stated and joined with the executor in asking the decree prayed for.
    On the hearing, the Court, after the reading of the bill and answers, dismissed the bill for want of equity.
    Held, That the rights of the annuitant, under the agreement, and the liabilities of the respective shares for its payment, the condition attached to the relinquishment of dower, and the beneficiaries of said relinquishment and of the- estate being mostly femes covert and children born and to be born, and who take the estate through trustees, make this a proper case for invoking the aid and direction of a Court of equity, in order that the rights of all parties may be finally adjudicated, and all doubt as to the proper construction of. the will, and as to the time when the distribution of the estate can be made, may be removed, this Court holding that the gift or bequest of the income carries with it the corpus, under the limitations provided in the will.
    Will. Equity. Before Judge Buchanan. Coweta Superior Court. September Term, 1872.
    Armsted B. Hill, as executor of the last will of Major B. Clark, deceased, filed his bill against the legatees under said will, making the following case: Testator bequeathed to his wife, Elizabeth M. Clark, a special legacy of a horse and rock-away, and an annuity of $500 00, to be paid annually by complainant as executor, out of the net annual income of- said estate. The widow applied for and had her dower in said estate set apart. Testator bequeathed one-fourth of the net annual income of said estate to complainant, as trustee, for the sole and separate use of his (complainant’s) wife, Mary C. Hill, and her children, *and one-fourth of the net annual income to his son, Joseph W". Clark, as trustee for the sole and separate use of his wife, Elizabeth Clark, and his children, and one-fourth of the net annual income to Nathaniel Glover, as trustee for the sole and separate use of his wife and her children, complainant’s wife, and Frances C. Glover, Nathaniel Glover’s wife, being the daughters of testator. Testator further bequeathed one-fourth of the net annual income to his son, Benjamin M. Clark, “subject to the following conditions, to-wit: My executor will retain (from year to year, as he may think proper,) with the corpus of my estate, so much of the annual share of said Benjamin M. Clark as will make the sum of $500 00, (this sum is the same I have heretofore advanced the said Benjamin.) After the said sum of $500 00 has been settled in the manner aforesaid against the said Benjamin, my executor is hereby directed to pay annually to him the sum of $150 00, retaining in his hands, without interest, the remainder of the annual income bequeathed to the said Benjamin M., until he, the said, Benjamin M., marries, or abandons an idle life and becomes settled in an useful and lawful occupation, or reaches the age of thirty years; in either event, my executor is directed and required to pay to him at once the amount retained from his one-fourth share in the net annual income of my estate, and afterwards he is to- receive equally of this item. Now, should the said Benjamin M. marry, and leave a wife and no heirs of his own body begotten, it is my will that two-thirds of his interest in my estate revert to the corpus of my estate, and in that event such widow as he may leave must draw only one-third of the interest bequeathed to the said Benjamin M.” Two of the aforesaid contingencies have transpired, to-wit: the said Benjamin has reformed and become steady in habits, and has intermarried with a wife, and is and has been receiving the full amount of the said one-fourth net annual income of said estate in strict .compliance with the provisions of said will. Complainant has paid to the trustees the full amounts of the one-fourth of the net annual income of said estate regularly and annually. To keep *together and to manage the property of said estate, which is mostly in lands, is very laborious and troublesome to complainant and of great expense to the estate. All the trustees and the said Benjamin M. Clark are prudent and discreet men, well calculated to manage and control the property bequeathed to them as trustees. It would be greatly to the interest of the legatees under said will to divide the corpus ‘equally between them on the same terms and conditions as the net annual income was directed by the testator to be divided and distributed. Complainant expressly charges that the true meaning and intention of testator was, that upon the happening of either one of the contingencies set forth in the bequest to said Benjamin M. Clark, the corpus was to be distributed among the legatees on the same terms and conditions, and the same restrictions and limitations as he imposed upon and directed to be observed in reference to the net annual income. Testator’s widow has recently signed a relinquishment of dower in the lands of said estate, “in consideration of the obligation or promise in writing, this day made by the legatees of said estate, to pay to said Elizabeth M. Clark the annuity of $500 00 mentioned and devised to her by said 'will periodically, to-wit; annually the remainder of her natural life, and for the further consideration that said estate may be distributed amongst the legatees thereof; provided, nevertheless, that if the Courts of said State refuse to decree a distribution of the property of said estate, then, in that event, the aforesaid relinquishment of said dower is hereby revoked.”
    Complainant prays that defendants may be compelled to discover as to the charges contained in his bill; that he may be relieved from the further management of the estate; that the Court will pass such order and decree as will direct him in executing the trust reposed in him by testator, in carrying out the true intent and meaning of said will; that the writ ,of subpoena may issue.
    The defendants filed a joint answer, admitting the allegations of the bill, joining in the prayer for a division therein contained, and further praying that the annuity of $500 00' *to testator’s widow for her natural life, be secured to her by the decree of the Court.
    When counsel for complainant had concluded the reading of the bill and answer to tíre jury, the Court, on its own motion, dismissed the bill for want of equity, to which judgment the complainant excepted, and now assigns the same as error.
    Lucius H. Featherston, for plaintiff in error.
    Samuee FgEEMAN, for defendants.
   Trippe, Judge.

The will of the testator, Clark, directed his executor “to pay an annual sum of $500 00 to his wife, out of the net income of his estate, in semi-annual installments.” The balance of the income is to be paid to four several sets of legatees, with trustees for three of those shares. The fourth share is payable on conditions, which have now happened, with a remainder created therein. The widow had applied for dower, which has been assigned. She afterwards executed an agreement with the legatees, relinquishing her dower to the estate and to the legatees, on condition that the legatees paid her, during life, the annuity, the relinquishment to be void if the Courts would not decree a distribution, which she consented might be done. The legatees, trustees and executor (he being one of the trustees,) agreed to this in writing, and the bill is filed to carry out this, and for a distribution. The beneficiaries of the trusts are femes covert, and their children — born and to be born.

We think the gift of the income carried with it the corpus, under the limitations provided in the will: Code, section 2419. We are also of opinion that the rights of the annuitant, under the agreement, as well as the will, and the liabilities of the respective shares for its payment, the conditions attached to the relinquishment of dower, and the beneficiaries of said relinquishment and of the estate being mostly femes covert and children, represented by trustees, make this a proper case for ^invoking the aid of a Court of equity, in order that the rights of all parties may be finally adjudicated, and all doubt as to the proper construction of the will, and as to the time when a distribution can be made may be removed, and, at the same time, decreeing such a distribution of the estate as the parties are entitled to, under the will and the agreement.

It may be added that all the parties in interest join the executor in asking for such a decree and such a distribution. There being minors and femes covert as cestui que tru'sts, adds to the reasons why such an application may be sustained.

Judgment reversed.  