delivered the opinion -of the court.
This bill is filеd by the complainant, as executor of Page P. Parker, against all who are interested under his will, or in his estate, for the construction of the will, and declaration of the rights of all the partiеs. The will is remarkable for its brevity and obscurity, and is as follows:
“I, Page P. Parker, being.of sound mind, and weak of body, do make this my last will and testament. It is my will that my wife, Mary H. Parker, and James E. Walsh, is to live on my farm, and also, Margаret Gourley to remain in the family free from any charge for board. It is my will, that if my wife should marry, that she is then to take one half of my estate, and the remainder to go to my lawful heirs; and in case my wife dies, then I want Miss Margaret Gourley to have five hundred dollars of my wife’s portion. It is my will that James E. Walsh shall receive $3000 of my estate, when he becomes twenty-one years old. It*390 is my wish, that Dr. James W-. Gourley serve as. аdministrator, and my beloved wife.
his
Page P. x Paekee. mark.
(Test.) Jas. W. Eobb,
E. Allen.”
This will was made a few hours before the death of the testator, and admitted to probate at the Hovember term, 1852, of Sumner county court. The different constructions, thаt it might well be supposed would be placed upon it, and the conflicting claims set up by those interested, made it necessary for his own protection, that the executor should come into a court of chancery for instructions.
The estate consisted of about 170 acres of land within three miles of Gallatin, worth about $80 per acre, a tract of thirty acres, called the Shepherd place, worth about $12 per acre, eight slaves, stock, farming utensils, &c. He had no children, but left two brothers, two. sisters, and the children of another sister, namely, Isaac, Agnes, and the said James E. Walsh. They are all made defendants,, as well as the widow, and answer, insisting upon the construction of the will most favorable to their- respective interests.
This will certainly approaches very clearly that degree of uncertainty and unintelligibility, which would authorise the courts to set it aside entirely. It affords another instance of the great impropriety of trusting to unskilful men, and waiting until the last moments of life, when disease has enfeebled both the body and mind, to perform this very important duty.
His wife was the first object of his regard — he intended to provide liberally for her. His nephew, James R. Walsh, then about three years of age, had the next place in ■ his affections and care; after him Miss Margaret Gourley, the kinswoman of his wife, who had, perhaps, been living with them, was to be provided with a home, tree of charge, and in a certain event, to receive a legacy of $500.
1. We think it clear, that his purpose was to continue his wife in the use and possession of his land and other property, his home, and every thing upon fit necessary to keep it up, as long as she might live to enjoy it, except she should see fit to marry again, and then she should havе one half, and his relations the other. The difficulty is in the development of these purposes, in the face of the will. What estate does he give her in the land? and what in the personalty, if any, until, or if shе does not marry? She is to live on the farm, and James R. and Margaret are to live
But the argument, that he did not intend to include his slaves in his provision for her, leads to this result. He has made no other disposition of them, and this is another strong circumstance to show, that he understood them to go with the land, and so designed. And in further corroboration of this idea, the law рresumes that a man who undertakes to make a will, does not intend to die intestate as to any of his property. The courts have always, in conformity to this principle, construed' wills so as to embrace all the testator’s property, if the words used, by any fair interpretation, or allowable implication, will embrace it. Words^ will also be supplied, where the sense requires it, or where it is manifestly necessary to carry out the plain developed objects shown by the will, to have been had in view and arrived at by the testator.
Secondly. If the widow should marry, then it is very plainly declared, that one half of his “ estate ” is to go to her, and the other half to his relations. The words are, “it is my will, that if my wife should marry, that she is then to take one half of my estate, and the remainder to go to my lawful heirs.” The word, estate, unqualified or restricted, is always construed to embrace every dеscription of property, real, personal and mixed. Upon the happening then of that event, whether in one or twenty years after his death, the whole of the property is to be divided, and an absolute title passes upon the division. Here is to be found another argument against the construction insisted upon, that he intended to die intestate, as to his personal propеrty. If it is not included in the will, there is an intestacy as to that, and the title must go absolutely under the statutes of distribution, and could not be forthcoming for division on the happening of the contingency contemplated. This goes to show, also, that the estate of
3. Thе legacy of $50.0 to Margaret Gourley, is to be paid at the death of the widow, “out of her portion.” This legacy must depend upon the contingency of the widow’s marriage. In no other event is shе to have any separate portion. Without that, as we have seen, she has only a life-estate in the property, and of course, at her death, the time provided for this legacy to take effect, there is nothing upon which it can operate.
4. The legacy of $3000 to James E. Walsh, is unconditional, and vested, and to be paid out of the estate upon his arrival at Ml agе. , It is not given upon the contingency of his living until he is of lawful age, but the payment only is postponed till that time. The vesting of the legacy could only be prevented by the use of the word, “if” or some other words fairly indicating an intention to affix a condition, or make it contingent. It must appear that the time is annexed to the gift and not to the payment. 2 Williams’ Ex’rs, 1051. There can be no interest till the time arrives upon this legacy, for that is the day of payment, it is not due before. But if he should die before that time, the right would pass to his personal representative. The question, however, in all such casеs, must depend upon the intention of the testator, as it may be collected from the whole will, more than the use of any particular words. In this case, the words are, he “shall receive $3000, of my estate, when he becomes twenty-one years old.” In this connexion, the time can only
In tbe event of tbe widow’s marriage, tbis legacy must be taken out of tbe aggregate estate before tbe division. Both tbe real and personal estate are equally bound for it.
5. We see no authority in tbе will for taxing tbe body of tbe estate, with tbe education and support of James B. Walsb, tbe legatee. Tbis must be done out of tbe products of the farm, as would be tbe case if be were a membеr of tbe family, as a son.
At all events, there is no authority to sell tbe property for that purpose.
It is rendered unnecessary from tbe view taken above, to enter into tbe consideration of some other questions, which have been presented in the argument.
There is an intestacy as to tbe Shepherd land.
Let tbe decree be entered, modifying tbe decree of tbe chancellor, so as to conform to tbis opinion, and tbe executor instructed accordingly.