4 Rand. 213 | Va. Ct. App. | 1826
This case turns wholly on the construction of Calvert’s will. The will was made in 1808, when he had a daughter about 15 months old, and theprospect of another child. That child, a son, was born in 1809. The testator died in 1812; his daughter in 1813 or 1814; his wife administered on his estate; intermarried with the appellee Otley, and in 1815, died. Administration de bonis non was committed to the appellant, as Sheriff. Otley delivered up to him all the estate; and afterwards filed this bill against him and the infant son of Calvert, claiming, that by the will, his wife had the use of all the property, both real and personal, till the arrival of the son at the age of 21; and that he, as her administrator, has the same right. The Chancellor has decided that such was the true construction of the will; aru! Land has appealed.
In the case before us, the testator-had real estate, slaves, money, &c. and his wife, it seems, had a plantation of her own. The first clause in the will gives all his estate, real and personal, to his daughter Polly; and if his wife should have another child by him, the whole property to be divided between them; and if they die before they come of age or marry, all the estate to go to the children of his sister Polly Jones. Having thus given to the primary objects of his bounty, the fqe simple of his whole estate, he proceeds to carve out of it lesser and temporary interests. To his wife, he gives the power to have the full use of all his negroes, lands, and all species of property, except his money, till his children or child come of age or marry; then, one half of his said estate, with all his money, to go to his child or children; and his wife, during her life, to hold the other half allotted to her as above, and at her death, that to go to the children. The rest of his will is almost entirely taken up, in assigning funds, and giving other directions for the support and education of his children; about which he discovers great solicitude. They are to be supported and educated, 1st, out of the estate, of which his wife has the use; 2d, out of the monies due to him; Sd, his money in Bank is to be put out to interest, and the inte-
The question for consideration is, what interest did the testator mean to give his wife Kezia, in the use of his estate, real and personal. Did he mean to give her a fixed and certain interest, a term for years, which would expire when the youngest of his children should, if living, reach twenty-one ? Or, was this use a mere personal trust and confidence, given to her for a special purpose, and ceasing, of course, with the person ? My idea of the will is this. The testator was chiefly solicitous about his children, one, a girl of very tender years, the other, unborn. He considered that the half of his estate, real and personal, was a sufficient provision for his wife, in addition to the plantation which she possessed, in her own right. The other half he wished applied to the support and education of his children, during infancy, and to go into their possession, at their marriage, or attainment of age. To the care of their mother, he must confide them while infants. No other could supply her place to them, or be so safely trusted with their care. As she must have the care and the expense of rearing, sustaining, clothing and educating them, he gives to her the use, during their non-age, of the whole of his estate, and also the interest of his money, and assigns this as the fund in her hands, for their education and support; but, so soon as they married or came of age, and this care and expense would cease, the use of one half of the estate, and the interest of the money, were to cease also; and she was to retain the other half for life.
It was also contended, that the .clause, giving his wife the half of his estate for life, contemplated a state of things which never happened, and therefore can have no influence on the construction of the will, but must be thrown out entirely. This would violate two settled rules. 1. That the construction now must be the same ás at the moment of the testator’s death, uninfluenced by subsequent events. 2. That in the construction of wills, you must take the whole together.
It was contended also, that there was no personal trust here, but a charge merely, for support and education of children, upon the fund in the wife’s hands, which would follow it into the hands of her representative, and could be discharged by him. That the testator intended to confide to his wife the bringing up of his children, is most evident. His very silence, if he had said not a word on the subject, would have been decisive of that; for, where the guardianship is not given- by the father to another, the con
But, I must first remark, that this case does not present at. all, the question, on which so many of these cited, turned: whether the estate given to the children was a vested interest, or contingent, and dependent on their marriage, or arrival at age. The first clause settles that point. It gives absolutely and immediately, the whole estate to his children; and subsequently, only excepts out of it, the use of the property, upon a particular trust, limited both as to time and object; and it is a rule laid down by the Court, in the case last cited, “ that wherever the whole property is devised, with a particular interest given out of it, it operates by way of exception out of the absolute property.-”
There were two cases cited from 2 and 3 Leon. Rep. A. devised that his land should descend to his son; but, that his wife should take the profits until his full age, for his education and bringing up. The widow died. It was resolved, that the second husband should not have the profits. “Nothing,” (say the Court,) “is devised, but a confidence. The wife is a guardian or bailiff to the infant.” These cases run on all-fours with that before the Court. It would be a waste of words, to point out the striking resemblance between them.
In Everts v. Chittenden, 2 Day’s Rep. 378, Joel Everts made his will, as follows: “ I likewise give to my wife the use and improvement of all my real estate, until my son Joel, (then five years old,) arrives at twenty-one years of age,” (then she to have and enjoy the use and improvement of one-third of the said real estate, during her natural life,) “she, my said wife, bringing up my said son, until he arrives at twenty-one years of age. Item, I give to my son J. E. the whole of my real estate, to be and remain an estate to him for ever, excepting the use to be disposed of, as above mentioned.” The widow entered upon the premises, married a second husband, and died, leaving her son a minor. The infant brought ejectmen
There are several other cases very strong for the appellant, such as Lomax v. Holmeden, 3 P. Wms. 175. Mansfield v. Dugard, 1 Equ. Cas. Abr. 195. Haywood v. Whitley, 1 Burr. 228.
The cases cited on the other side do not apply. They were either devises of property for a certain period, without any expression implying a limitation of the period, in any event; or, there was a trust raised by the devise, for payment of debts, or the performance of some other thing, which required that the trustee should hold till the term expired. In other words, the decision in those cases was founded on the settled doctrine of giving effect to the manifest intention of the testator. To follow those cases here, would be, not to give effect to, but to defeat, most palpably, the clear intention of the testator.
I am, therefore, of opinion that the wife’s interest ceased with her life.
Thomas Calvert having one child, Polly, born September 15th, 1806, made his will in April, 1808. He had afterwards another child, Thomas, born January 27th, 1809, and died in 1813, leaving his widow, Kezia, and his said two children surviving him. The daughter, Polly, died
In determining the question, as to the extent and nature of the interest given by the will to the widow, the intention of the testator is the sole criterion; and that intention is to be collected from the whole will; so that if the intention of the testator, in respect to the interest of the wife, plainly expressed, were found to be inconsistent with the intentions of the testator, in respect to the children, the express limitation to her would be restrained by construction, for the purpose of giving effect to the whole will, as in ex parte Davis, 6 Ves. 147. The testator gave to his wife his whole estate, during the minority of the son, his said wife, during that period, finding him with suitable education, maintenance and clothing; and if his said wife should die before his said son attained the said age, he appointed guardians and trustees for him, during his minority.” In this ease, it was clear that the testator contemplated the event of his wife’s dying during the minority of his son; and in that event, appointed guardians and trustees for the son. This shewed, that in the event of his wife’s death, during the minority of the son, the estate should immediately devolve upon the son, to be managed by the appointed guardians and trustees; otherwise, there would be nothing for them to manage; and this manifest intent in favor of the son, corrected the generality of the devise to the wife. So the estate given to the wife expressly, would be enlarged by construction, if that were necessary to effectuate the intention of the testator, in respect to his children or his creditors, so as to give effect to the whole will, as in Borraston’s case, 3 Co. 19. The devise was to the executors, until Hugh attained his age of 31 years, the profits to be employed towards the perfor.
In these cases, the estate or interest, expressly given, is limited or enlarged beyond the legal effect of the terifis in which it is expressly given, for the purpose of effectuating some other intention of the testator, plainly expressed or necessarily inferred from his will, which would be frustrated, if the express terms of the devise or bequest were allowed to have their strict legal effect. Examples of this rule may be found in the multitude of familiar cases, in which express devises for life or in fee simple, have been enlarged or limited to estates in fee tail, for the purpose of effectuating the manifest intention of the testator, as to the issue of the first taker. But, there is no example of the
What was the nature and extent of the interest, given to the wife of the testator, by his will? After devising his whole estate, real and personal, to his daughter Polly, and any other child he should have by his wife, and in case of their deaths under age and unmarried, to the children of his sister Jones, the testator proceeds: “Further say, I desire that it be in the power of wife Kezici, to have the full use of all my negroes, lands, and all species of property, except my money, until my children or child come' of age or be lawfully married; then, one half of said estate, with all my money, to go to my child or children; during my wife Ke.zia’s natural life, she shall be entitled to hold the half allotted for her as above, and at her death, to go to my children and their heirs, as above.”
There can be no serious doubt, that this clause of the will, standing alone, gave to the wife a beneficial and personal interest, either legal or equitable, to the profits of the whole estate, except the money, until the children attained their age or married, with remainder for her life, in one half of what had been given to her until that period. I incline to think that the interest given was a legal interest. “ The full use of property,” is an expression equivalent to the “profits” of the property; and a desire that theprofits of a lease shall be put out to the use and benefit of B. is a devise of the lease itself. Blamford v. Blamford, 3 Bulstrode, 101. This, however, is a question’of no moment in this case; for whether the interest be legal or equitable, it was transmissible to her representatives, unless it terminated in her life-time, or upon her death.
Some stress was laid in the argument of the cause, upon the expression, “ I desire it to be in thepower of my wife
It was also argued that the expression, “ during my wife’s natural life, she shall be entitled to hold the half allotted for her as above,” meant that as the half was allotted to her for life, so the whole allotted above was allotted to her for life. ' Such a construction would produce singular effects. It would be giving her, at the same time, a life estate in half and the whole; or rather, a life estate in the- whole for a limited, time, and a half afterwards. The obvious meaning of that expression is, to designate what property it was, to a moiety of which s.he was to be entitled, after the children attained their age or married; to wit: half of what was allotted to her above; and it was used for the purpose of excluding her from any participation in the money. “Allotted to her as above,” designated the thing, of which she was to have one half, and not the estate or interest, of which she was to have half. Half of a life estate would be quite unintelligible.
It is also urged, that the intent of the testator was, that if his wife died before, his children attained their age, or married, her interest should determine, because he has given her an estate for life, in half of the estate, after that period; anti he could not have intended that she should have the whole estate longer than the half. An estate for years in all, with remainder for life in half, does not seem to me to imply any such inconsistency. Before the estate for life in the half could take effect in possession, the first estate in the whole must have expired in the life-time of
This being the legal effect, and expressed intention of the testator, in respect to the interest of the wife, is there any other intention expressed in the will, or necessarily implied, which would be frustrated by carrying into effect this intention as to the wife, and which, therefore, renders it necessary, in order to effectuate the general intent of the
The will proceeds, “I desire that my child or children, as above, shall be supported and educated in a christian-like manner, out of the money arising from the estate I leave as above;” “ and monies due to me, and all my money I may leave in the banks, to be put out at interest, and the interest only to go into the hands of my wife for the benefit of education of my child or children, and to be used for their benefit only.” He then provides, that in case of the loss of his slaves, or misfortune to his estate, there should not be a sufficiency to support and educate his children, then after they were nine years old, “ to take a sufficiency of the money at interest, for that purpose, if it should require all.” He then proceeds. “Further say, nothing is to be charged to my child or children by wife Kezia, for board or clothes, and in short, no charge that might affect their estate, as I have provided for them in the foregoing of this instrument, as well as for my wife Kezia.” The will concludes, “Further wish my wife to live on this plantation of her own, and endeavor to make a living in a plain and frugal manner for own benefit.”
The effect of these clauses of the will, was, to charge upon the property devised to the wife,, so much as would be sufficient to maintain the children; and if the interest of the money was insufficient to educate them, then so much more as would be sufficient, with the interest, to effect that purpose. If the interest was more than sufficient to educate the children, the surplus belonged to them; but if the interest of the money, and the produce of the property, were not sufficient to maintain and educate them, then the principal of the money at interest, was to be resorted to, as far as might be necessary, for that purpose. These funds, appropriated for the support and education, were to
Upon these provisions in favor of the children, and the first clause of the will, giving in terms, the whole estate immediately to them, it is said, that they were the chief objects of the testator’s solicitude and bounty, and therefore, the will should be liberally interpreted in their favor. If the first clause of the will were expunged, the estate of the children would be as completely vested in them, immediately upon the testator’s death, as it is by force of that clause. A devise to A. for years, or until B. attain his age, with remainder to B. vests the estate immediately in B. Borraston’s case, 3 Co. 19. Stanley v Stanley, 16 Ves. 489. A devise to his wife, until his children attained the age of 21 or married, would have been precisely the same in effect, and would have shewn as bountiful an intention in the testator, towards his children, as the devise in the form in which it stands. But, the provisions of the will, in fact, were intended by the testator, to favor his wife, and not his children. He gave her more, and to the children less, than the law would have given them respectively, in case of intestacy; one half instead of one third. The testator, as I have before observed, never contemplated the event of her dying, before the children attained their age or married; or he would have made a provision for that event. Allowing that the children were the chief objects of the testator’s care and bounty, what then? We cannot therefore disregard the testator’s expressed will. He gave to his wife, his whole property, except his money, charged partially with their maintenance and education, until they came of age or married; and has indicated no intention, that they should enjoy any portion of the capital of his estate, until that period.
It is argued, that the testator’s wife was only intended to have the personal benefit of maintenance, out of the profits of the estate; a benefit which would, of course, cease at her death, and that the expressions that it should be in her power to have the full use, $?c. and the wish that she would live on her own plantation, and endeavor to make a living in a plain and frugal manner, for her own benefit, indicates such intention.
I have already observed upon the first of these expressions. The other, so far fiom indicating an intention to
Finally, it is said that the will gave to the wife no interest, but only created a personal trust and confidence for the benefit of the children, which expired on her death. What I have just said, shews that there was a beneficial interest vested in the wife, for her own benefit. Independently of the particular expressions, shewing an express intention on the part of the (estator, to give her such an interest, the terms of the bequest to her give, of themselves, such ait interest. Thus in 8 Vin. 292, pl. 15, it is said, “I give to my wife all my lease at F. and all my household goods, she maintaining my children; but if she should marry, then a moiety of it among my children. The children shall have no more than a maintenance, unless she marry.” This beneficial interest, however, was coupled with personal trust and confidence, for the maintenaneé, and in part, for the education of the children, out of the profits of the propprty devised to her; and the question is, whether, upon her death, as she could no longer perform the trust in person, her interest ceased. Powell, in his Treatise on Devises, p. 301, treating of such interests coupled with trusts, says, “ In all these cases of interests, the estate shall not determine, until the time limited, although
In the case of Balder v. Blackburn, Hob. 285, the testator devised the profits of his lands to his wife, to her own use and without account, till her daughter should arrive at the age of 18, provided the wife should pay the quit-rents and fines, and keep and bring up the daughter; remainder to the daughter in fee. The wife took a second husband, and died before the daughter attained the age of 18. The Court held, that this was “ a plain term given to the wife, to her own use, which accrues to the husband; and the keeping and education of the child is not such a particular privity, but it may be performed effectually by another.” This is precisely our case, exceptas to the wife being charged with the payment of fines and quit-rents. There the estate was given to the wife, until the daughter attained her age of 18, “ to her own use, without account;” here, “for her own benefit,” and consequently and neqessarily, without account. There, there was a direct personal trust upon the wife, to bring up the daughter at her own expense; here, there is a partial charge upon the property devised to the wife, for the maintenance and education of the children; and the personal trust to apply the funds to that purpose, is raised, not expressly, but by implication. There, the remainder was to the daughter; here, to the children. In that case, it was not necessary to enlarge the estate of the wife beyond the legal effect of the terms in which it was given to her, for the purpose of effecting the intention of the testator, to provide for the bringing up of his daughter; for, the remainder to the daughter would have taken effect immediately, on the termination of the mother’s es-
It was said at the bar, that the direction that the wife should pay the fines and quit-rents, had the effect of eontinuing the wife’s interest, after her death; and in Everts v. Chittenden, 2 Day’s Cases in Error, 357, the Supreme Court of Connecticut suggests the same opinion. The Court, which decided the case of Balder v. Blackburn, suggest no such argument; and that provision could not have had, upon any just principle, the effect to enlarge, in the slightest degree, the duration of the wife’s interest. If land be devised to one without words of perpetuity, charged with the payment of money, an estate in fee is implied; because, the devise being intended.to benefit the devisee, as he might die immediately after the testator, he might lose by paying the money, if he had only an estate for life. This goes upon the inferred intention of the testator. But, 1 have never before seen a suggestion, that an express estate for life or years, could be enlarged by a charge on the devisee to pay money. If you could enlarge it in such a case, by construction, it must be enlarged to a fee; for, there can be no criterion to determine upon any intermediate estate, between that expressly given and a fee simple. This case, therefore, and the case at bar, appear to be precisely the same.
In the case of Smith v. Havens, Cro. Eliz. 252, the testator devised, that if his wife think good to bring up his children, that then she shall have his lands, until his son attain to his age of 34 years. The wife died before the son attained to that age; and it was resolved, that that event did not determine her estate. The question was, “ whether this was a matter of confidence only, or of an interest also in the land.” Here, there was, most emphatically, a personal confidence in the wife, which her death made it impossible for her to comply with; yet, being coupled with an interest, the failure of the personal confidence did not destroy the interest. No matter what reasoning induced the Court
To the same effect, in this point, is the case of Cawthorpe v. Hayman, Cart. Rep. 25.
It is true, when it appears from other parts of the will, that a clear intent of the testator will be frustrated, by continuing the estate, in such a case, of the wife, beyond the period of her life, such construction will be given, as will effectuate the whole intentions of the testator, as in the case of ex parte Davis, already noticed; and so, if it appear that the wife, upon the whole of the will, was not intended to take any personal interest, but only to take the profits as guardian, and upon a personal confidence, for the use of the child, upon her death, her power expires. Thus, 2 Leon, 221, pl. 280, A. devised that his lands should descend to his son; but he willed, that his wife should take the profits thereof, until the full age of his son, for his education and bringing up. The wife married another husband, and died before the full age of the son;-and two Justices held, that nothing was devised to the wife, but a confidence, and she was a guardian or bailiff for the infant, which was determined by her death. . But contrary, if he had devised the profits of the land to his wife, until the age of his son, to bring him up and educate him; for, that is a devise of the land itself. It appears from this, that the real question in such cases is, whether an interest passes, or not ? If it does, then whatever personal confidence is connected with it, the death of the wife does not destroy her interest.
The case, before cited from Connecticut, was this: The testator bequeathed to his wife, the whole of his moveable estate; and gave her, likewise, the use of all his real estate, until his son came of age; “she, my said wife, bringing up my said son, until he arrive at 21 years of age. I give to my said son the whole of my real estate, excepting the use to be disposed of, as above mentioned.” The wife
It was admitted by the counsel for the appellee, that if a grant be made to Ji. until B. attains his age of 21, and B. dies before he attains his age, the term ceases from the moment of B’s death, because it is then ascertained, that he can never attain that age; and if the term did not cease at his death, it could never cease. An interest given by will in the same terms, would have the same effect, unless there were something in the will to shew, that the testator intended that the estate should continue, noiwithstanding the death of the infant, until he would have attained his age, if he had lived; which was Borraston’s case, 3 Co. 19, where the devise was for the payment of debts. In the absence of any evidence of intention to the contrary, the effect of a devise, is the same as of a deed. This was decided in Lomax v. Holmeden, 3 P. Wms. 176, and
When the testator wrote his will, he had one child living, and expected, though not confidently, another. He therefore gives his whole estate to his living child, Polly; and if he should have another, to both. In the after part of his will, he usually speaks Of his child or children, meaning his child Polly, if he had no other, and both his children, if he had another. He gives all his estate, except his money, to his wife, “until my children or child become of age, or be lawfully married.” He meant by “children,” both, if he had two; and by “child,” his child Polly, already born. His will was, in effect, to give to his wife, “ until his child Polly, if he should have no other, should come of age or marry,” or, “until his children, Polly and another, if he should have another, both became of age or married.” Upon the death of Polly, this became impossible; and upon the principles already stated, the wife’s interest in the whole terminated, and her i’ight to one moiety for her life, took effect in possession; that being a vested remainder depending on her former estate, and the other moiety vested in Thomas, in possession. Or, if the term for years of the wife, in the moiety of the estate of which the remainder was given to her for life, merged in this vested remainder, (Black v. Pagrave, Cro. Eliz. 532;) then she was entitled, upon the death of the testator, to a life-estate, immediately in that moiety, with remainder vested in the children in fee; and to an estate for years in the other moiety, until the children attained their age of 21, or married, determinable by the death of both or either of them, before those events occurred, with a vested remainder in fee to the children. It is immaterial to enquire, whether the term for years, in the moiety given to her in remainder for life, merged in the life-estate; since her interest, in the events which have happened, was precisely the same, whether the term was .merged in the life-estate or not.
As the testator lived until after a second child was born, and as the will speaks at his death, and may have been read over by him the day before, and have been intended as applying to the then situation of his family, it may, perhaps, be most proper to consider it as then made, and as speaking of his two children.
It may also be proper to consider the questions arising under this will, as at the time of the death of Polly the daughter, and as if a suit had then been brought by Thomas, the surviving child, against his mother, to ascertain their respective rights on that event; or rather, to ascertain the then rights of Kezia, the widow of the testator, in his real and personal estate; for, except so far as limited by those rights, the whole would belong to the surviving child.
It is contended, on the one side, that she took an estate for years in the whole property, real and personal, to continue until the children came of age, or married; and that nothing but the marriage of both under age, or the coming of age of both, or the marriage of one, and the coming of age of the other, could determine this term for years,- until the youngest child actually did, or might have come of age; and that after this, she was to have one half for life. On the other side, it is contended, that, taking the whole will together, it must be construed to mean, that the term for years was to cease at her death, if she died before they married or came of age: that so long as they all lived, or
But, if the will cannot admit of this construction, then it is contended, that the term for years ceased, nevertheless, at her death, and did not go to her personal representative; because she took a mere personal trust and confidence, uncoupled with such interest, either in herself or third persons, as would transmit the term to her personal representatives: that there was no interest of third persons to protect, after her death, (the children being better protected by receiving the whole estate, than a mere right to maintenance and education charged on it;) and her temporal comfort, the other object, ceasing with her life, then there was no future interest, as it regards her, to protect which would require the continuance of the term; and consequently, that on this ground, if not on the other, it must cease with her life, as aforesaid.
It was also said, though not much pressed in the argument, that on the death of Polly, the term for years was determined, unless there was something in the will which would prevent it and continue the term beyond that time; and that if it was determined by that event, either the whole estate then passed over to Thomas, or one half to him in fee, and the other half to his mother for life.
- According to these last pretensions, if the term for years ceased by the death of Polly, and the whole estate went
It is proper, therefore, to examine the question, as one between Thomas and his 'mother,"in order to ascertain her rights on the death of Polly; and also to examine it as one between him and her personal representative, in relation to the continuance of the term after her death.
If the will had given to the wife a term of this kind, uncoupled with any interest, charge, trust, or any thing to shew that a further duration of the term w,as intended, and without any express direction, that she was to hold, until they or the survivor actually had, or should have come of age, had they lived, it may be admitted that it would have determined on the death of one or both, under age. But, this operation of the rule of law on such an estate, may be done away, either by express words in the will, or by manifest intent, deducible from the whole will, as in Borraston’s case, 3 Oo. 19; where, from construction, it was determined it should continue, until the son would have come of age, had he lived. Whether the term, then, determined on the death of Polly, or- not, will depend on a sound construction of the will, taken all together. It seems to me, from its whole structure, not only that the wife was intended to have the nurture and education of the children; but that a provision for her, at least during her life, was intended to be made. ' She was to make a living in a plain and frugal manner, for her own benefit. For these purposes, she is to have the use of the whole, until they come of age or marry; and then, they are to take one half, and she the other half for life. She is no longer charged with support and education; and they must have the means of their own, and one half will be enough for her. But, if the term was to cease on the death of Polly, either the whole must go over to Thomas, or her life estate must then commence in a half, and the other half must
But again. If the term ceased by the death of Polly, and' the whole estate went over to the survivor, then, as before said, there would be nothing left for the maintenance of the wife, which, it seems to me, would so entirely defeat the will, that such construction could not be put on it. But, then it is said, the term only would cease, and her life estate in one half would begin, discharged from the support of Thomas, as much so, as if he had come of age; that the remainder in her for life, in one half, though limited on a term which has ended, not by marriage or coming of age, as specified in the will, but by another event, (and which, by that will, was to take effect, not on the death of one or both, but on their marriage or coming
If I have succeeded in shewing, that the whole estate would not have gone over to Thomas, on the death of Polly, but. that to do so, would manifestly violate the intention of the will; if a similar violation would take place in case one half went over; the argument is equally strong as to it. But if the term did not cease on the death of Polly, then the question, whether the remainder for life in one half was vested or contingent, does not arise. Borraston1 s case shews, that the term may continue beyond the time, when, in ordinary cases, it would cease by the rule of law, if such continuance appears by the-will, to have been intended. It seems to me, it .was intended that it should continue after
My impression is, that if there had been nothing else in the will, which, by construction or otherwise, would continue the term beyond the death of Polly, the mother could not, on that event, take one half for life, as a vested remainder in her; but whether she would or not, I shall not stop to enquire; being satisfied, as before stated, that there is enough in this will to continue the term, down to the time when the youngest child shall attain, or would have attained his age of 21 years; and had the mother survived that time, that she would then have taken one half for life.
This brings us to the enquiry, whether, notwithstanding the death of the mother, before Thomas arrived at his age of 21 years or marriage, the term is to continue and pass to her administrator, until it is determined by the marriage, or coming of age &c. of Thomas ? This also, is to be determined by the whole will.
A provision was intended for a two-fold object. First, for her personal comfort, and to enable her to make a plain and frugal living, for her own benefit; and secondly, to enable her to raise and educate the children, until marriagej or their coming of age. For this purpose, the estate is to be kept together, and used on her plantation, and his debts to be paid out of the money he leaves behind. She is to
On the whole, I.am for reversing the decree.