
    SAMUEL CAMPBELL, EX’R., v. WATKINS AND WIFE ET AL.
    (S. C., Thomp. Cas., 184-186.)
    Nashville,
    December Term, 1859.
    WILLS. Intention, to prevail over literalism. Advancements to be collated.
    A direction in a will that the estate should be reduced to money, and the same divided as follows: To testator’s daughter one-half the money, less the present value of the slaves heretofore given her; to his three grandchildren, the children of a deceased daughter, the balance of the money, etc., must not be literally interpreted, but the letter must yield to the spirit of the instrument so as to carry out the evident intention of equality. The value of the slaves must be regarded as an advancement, and collated as such — • that is, after paying the grandchildren, out of the money, a sum equal to the value of the slaves, give half of what remains to the daughter, and the other half to the grandchildren. [For advancements, see Code, secs. 4174-4178, and notes. Intention of testator to prevail. Williams v. AYilliams, 10 Yer., 26, 27; Fulkerson v. Bullard, 3 Sneed, 263; Lynch v. Burts, 1 I-Ieis, 604; AYilliams v. Jones, 2 Swan, 622, 623; Thompson v. MeKisick, 3 Hum., 631-636; Henry v. Hogan, 4 Hum., 210; Covenhoven v. Shuler, 2 Paige, 122, 130; Crosby v. Wendell, 6 Pa.ige, 548, 553; Pond v. Berg'h, 10 Paige, 140, 152; Parks v. Parks, 9 Paige, 107; VanNostrand v. Moore, 52 N. Y., 12, 21; Stover & Barr’s Appeal, 45 Am. Dee., 608; Baskin’s Appeal, 45 Am. Dec., 641; Adié v. Cornwell, 3 T. B. Monroe (Ky.), 276, 279; Stallsworth v. Stallsworth, 5 Ala. Rep., 143; Smith v. Bell, 31 U. S., 6 Peter’s, 68, 79 (8 L. ed., 322, 326, 327); Stewart v. Brady, 3 Bush (Ky.), 623, 624, 625.]
   Caruti-ieks, J.,

delivered tbe opinion of tlie court:

This bill is filed for the construction- of the will of Mary Linster, and directions as to the execution of the trusts-. After providing for the payment of her debts, and the sale of all her property, real and personal, she continues, in item third:

“After my debts are paid, and all money collected

. . . . from all sources whatever, I direct the same to be divided as follows: To Mrs. Margaret Watkins, my daughter, I will one-half the money, less the present value of the slaves I have heretofore given, to her sole and separate use and benefit for and during her natural life, and after her death the same to be equally diidded between her children. The balance of the money I will to my three grandchildren, Elizabeth Slater, Thomas Slater, Mary M. Slater, to be equally divided between them. But the shares of my granddaughters I give to them for their separate use and benefit, for and during their natural lives, respectively, and after their deaths, or the death of either of them, to be equally divided between their children.”

~ The first part of the clause produces the difficulty, and the disputed question is, whether the daughter, Mrs. Watkins, is only to receive the amount which Avould remain after deducting the Aralue of the slaves previously given to her by the testatrix, from one-half of the fund^ or is she only to account for the slaves as an advancement, so as to make her equal in the aggregate, made up of the money to be distributed, and the slaves added. The former might seem to be the literal interpretation of the language employed, but surely it could not have been the intention. By that construction her living daughter would get less by the value of the slaves, than the children of the deceased daughter. This discrimination against the living child could not have been intended. At first glance, the consequences and results of the different constructions may not be seen, but they will be manifest upon a little reflection. A supposed case, which might well be the real one, will illustrate the effect of the two interpretations. If the money to be divided under the will should be $10,000, and the value of the slaves $2,000, the literal construction would leave for the daughter $3,000 of the fund, for that is the half, less the value of the slaves, which would make for her in all $5,000, and leave for the children of the dead daughter $7,000 in money. That would be $5,000 to one, $7,000 to the other. Such could never have been the intention. If the mother had intended to discriminate at all, it would be, reasonable to suppose that it would have been in favor of the living daughter. Tier object was manifestly to produce equality, but the language used is ambiguous. This is one of the cases where the letter must yield to the spirit of the instrument, so as to carry out the evident intention. The rule of dividing the fund must be to regard the value of the slaves in the nature of an advancement, and add it to the fund, and divide the total equally, or as the chancellor directs to pay over to the grandchildren, out of the fund an amount equal to the value of the slaves, and then give each one half of what may remain.

The decree will be affirmed and the cause remanded for further proceedings under it.

Decree affirmed.  