The Assistant Vice-Chancellor.
The first question presented, arises upon the power of sale conferred upon the executors in regard to the real estate,
The testator reposed upon their judgment, as to the t.imn manner, and terms of the sale ; but it was only to take place “if an equal, valid and satisfactory division thereof, in part or in whole, cannot otherwise be made.”
I am" satisfied that he intended to make the executors the judges of the necessity for a sale. If they became convinced that a partition, equal and satisfactory, would not be made among the devisees, either because of their legal disabilities or their indisposition to make the requisite concessions; or that such a partition was not practicable on account of the situation of the estate itself; then the will clothed them with the power to sell. A valid partition could only be made by the agreement of competent parties, or by a court having jurisdiction.
The testator declares in his will that he has not, in making it, consulted any professional bharacter, and he provides for an arbitration if any difficulties should arise in its construction. It is evident therefore, that a resort to this court to determine [360]*360whether the contingency had occurred on which the executors were empowered to sell, did not enter into the contemplation of the testator.
The testimony shows that a partition cannot be made with due regard to the rights and interests of the parties entitled. But no declaration to that effect can control the exercise of the discretion of the executors, as to the execution of the power of sale. Their judgment upon the question is conclusive, if made in good faith.
The opinion of the court was asked upon the execution of the power of sale by the two executors who have qualified, the others having renounced, or neglected, or refused to act.
The Revised Statutes expressly declare that in such a case all sales made by the executors who take upon themselves the execution of the will, shall be equally valid as if the other executors had joined in such sale. This extends to the execution of the conveyance, as well as to the making of the sale, in its restricted sense. See Sharp v. Pratt, (15 Wend. 610;) Ogden v. Smith, (2 Paige’s R. 197, 198.)
2. The most litigated question arising in the case, is upon the following clause in the will, viz.:
“And as it bath also pleased Almighty God to remove my daughter Ann by death, and as my said daughter Ann, had she survived me, would have been entitled to one seventh part of my estate equal with my other children and heirs, it is my will that the said seventh part last named, after the deductions agreeable to this my will shall have been made, that the remainder of the said seventh part shall be equally divided among my three daughters, Elizabeth, Mary, and Catherine, and the heirs of my deceased daughter Hester, viz: Thomas S. Bunner and Charles F. Bunner Jr.; and also that after the decease of my beloved wife, all the household and kitchen furniture, together with the linen and clothing which had been in the use ¡and occupancy of my beloved wife at and immediately previous to her decease, shall also be equally divided among my last named three daughters, and the heirs of my said daughter deceased.”
[361]*361The two Banners claim that they are equally entitled with the three daughters living, each to one-fifth part of these bequests ; while the daughters contend that they each take one-fourth part, and that the Banners are entitled jointly to the remaining fourth part, which their mother would have received if living.
To sustain the claim of the three daughters, parol evidence was given. I call the extrinsic evidence in this case, parol, as distinguished from the statutory evidence of intention contained in the will; although that chiefly relied on is in the hand-writing of the testator, and made only a few days before the date of the will.
If the court were at liberty to receive such testimony, it would be very strong, perhaps conclusive, to show that the testator intended to give to the two Bunners no more than their mother’s share of the portion of his deceased daughter, Ann. And it is quite probable that in his marked jealousy of professional characters, he has framed his will so as to defeat his intention in this particular.
I feel entirely clear, however, that the extrinsic evidence is not admissible. The language of the will is plain and not ambiguous. No doubtful terms are used, and no designation of objects requiring explanation to make them intelligible. The court, by applying well settled principles of construction, can have no difficulty in declaring the intention, from what is expressed in the will.
Mr. Jarman, in his recent valuable treatise on wills, says, “ It is clear that parol evidence of the actual intention of a testator is inadmissible for the purpose of controlling or influencing the construction of the written will, the language of which must be interpreted according to its proper acceptation, or with as near an approach to that acceptation, as the context of the instrument, and the state of the circumstances existing at the time of its execution, (which as we shall .presently see forms a proper subject of inquiry,) will admit of.” (1 Jarm. on Wills, 358. And see 1 Powell on Devises, 465, Jarman’s edition.) There are many pointed cases on this subject in the reports. Without citing them at large, I will refer to the will of the Earl [362]*362of Oxford, Lord Walpole v. Earl of Cholmondeley, (7 T. R. 138, and 2 Ves. 402;) Earl of Newburgh v. Countess of Newburgh, (5 Madd. 364;) Doe d. Oxenden v. Chichester, (4 Dow P. C. 65;) Mann v. Mann’s Executors, (1 J. C. R. 231.)
In Peacock v. Falkner, (1 Bro. C. C. 296,) Lord Thurlow said that evidence could not be read to prove what the testator meant by the words used in his will, but it might as to facts upon which he made his will.
Rejecting the extrinsic evidence, and looking to the plain language of the will, there is no doubt but that each of the Bunners took the same interest in the bequest in question, as their three aunts who are named.
In 2 Powell on Devises, by Jarman, 331, it is said that where a gift is made to a person, described as standing in a certain relation to the testator, and to the children of another person standing in the same relation, as to “ my brother A. and the children of my brother B.;” A. only takes a share equal to one of the children of B,, though it may be conjectured that the testator has a distribution according to the statute in his view.
The authorities abundantly support this position.
Thus in Blackler v. Webb, (2 P. Will. 383,) the testator bequeathed the surplus of his personal estate equally to his son James, and to his son Peter’s children, to his daughter Traverse and to his daughter W ebb’s children, and his daughter Man. It was decided that each of the children of Peter and of Mrs. Webb, took the same share that was taken by James and the other children of the testator named as legatees.
In Dowding v. Smith,
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The Assistant Vice-Chancellor.
The first question presented, arises upon the power of sale conferred upon the executors in regard to the real estate,
The testator reposed upon their judgment, as to the t.imn manner, and terms of the sale ; but it was only to take place “if an equal, valid and satisfactory division thereof, in part or in whole, cannot otherwise be made.”
I am" satisfied that he intended to make the executors the judges of the necessity for a sale. If they became convinced that a partition, equal and satisfactory, would not be made among the devisees, either because of their legal disabilities or their indisposition to make the requisite concessions; or that such a partition was not practicable on account of the situation of the estate itself; then the will clothed them with the power to sell. A valid partition could only be made by the agreement of competent parties, or by a court having jurisdiction.
The testator declares in his will that he has not, in making it, consulted any professional bharacter, and he provides for an arbitration if any difficulties should arise in its construction. It is evident therefore, that a resort to this court to determine [360]*360whether the contingency had occurred on which the executors were empowered to sell, did not enter into the contemplation of the testator.
The testimony shows that a partition cannot be made with due regard to the rights and interests of the parties entitled. But no declaration to that effect can control the exercise of the discretion of the executors, as to the execution of the power of sale. Their judgment upon the question is conclusive, if made in good faith.
The opinion of the court was asked upon the execution of the power of sale by the two executors who have qualified, the others having renounced, or neglected, or refused to act.
The Revised Statutes expressly declare that in such a case all sales made by the executors who take upon themselves the execution of the will, shall be equally valid as if the other executors had joined in such sale. This extends to the execution of the conveyance, as well as to the making of the sale, in its restricted sense. See Sharp v. Pratt, (15 Wend. 610;) Ogden v. Smith, (2 Paige’s R. 197, 198.)
2. The most litigated question arising in the case, is upon the following clause in the will, viz.:
“And as it bath also pleased Almighty God to remove my daughter Ann by death, and as my said daughter Ann, had she survived me, would have been entitled to one seventh part of my estate equal with my other children and heirs, it is my will that the said seventh part last named, after the deductions agreeable to this my will shall have been made, that the remainder of the said seventh part shall be equally divided among my three daughters, Elizabeth, Mary, and Catherine, and the heirs of my deceased daughter Hester, viz: Thomas S. Bunner and Charles F. Bunner Jr.; and also that after the decease of my beloved wife, all the household and kitchen furniture, together with the linen and clothing which had been in the use ¡and occupancy of my beloved wife at and immediately previous to her decease, shall also be equally divided among my last named three daughters, and the heirs of my said daughter deceased.”
[361]*361The two Banners claim that they are equally entitled with the three daughters living, each to one-fifth part of these bequests ; while the daughters contend that they each take one-fourth part, and that the Banners are entitled jointly to the remaining fourth part, which their mother would have received if living.
To sustain the claim of the three daughters, parol evidence was given. I call the extrinsic evidence in this case, parol, as distinguished from the statutory evidence of intention contained in the will; although that chiefly relied on is in the hand-writing of the testator, and made only a few days before the date of the will.
If the court were at liberty to receive such testimony, it would be very strong, perhaps conclusive, to show that the testator intended to give to the two Bunners no more than their mother’s share of the portion of his deceased daughter, Ann. And it is quite probable that in his marked jealousy of professional characters, he has framed his will so as to defeat his intention in this particular.
I feel entirely clear, however, that the extrinsic evidence is not admissible. The language of the will is plain and not ambiguous. No doubtful terms are used, and no designation of objects requiring explanation to make them intelligible. The court, by applying well settled principles of construction, can have no difficulty in declaring the intention, from what is expressed in the will.
Mr. Jarman, in his recent valuable treatise on wills, says, “ It is clear that parol evidence of the actual intention of a testator is inadmissible for the purpose of controlling or influencing the construction of the written will, the language of which must be interpreted according to its proper acceptation, or with as near an approach to that acceptation, as the context of the instrument, and the state of the circumstances existing at the time of its execution, (which as we shall .presently see forms a proper subject of inquiry,) will admit of.” (1 Jarm. on Wills, 358. And see 1 Powell on Devises, 465, Jarman’s edition.) There are many pointed cases on this subject in the reports. Without citing them at large, I will refer to the will of the Earl [362]*362of Oxford, Lord Walpole v. Earl of Cholmondeley, (7 T. R. 138, and 2 Ves. 402;) Earl of Newburgh v. Countess of Newburgh, (5 Madd. 364;) Doe d. Oxenden v. Chichester, (4 Dow P. C. 65;) Mann v. Mann’s Executors, (1 J. C. R. 231.)
In Peacock v. Falkner, (1 Bro. C. C. 296,) Lord Thurlow said that evidence could not be read to prove what the testator meant by the words used in his will, but it might as to facts upon which he made his will.
Rejecting the extrinsic evidence, and looking to the plain language of the will, there is no doubt but that each of the Bunners took the same interest in the bequest in question, as their three aunts who are named.
In 2 Powell on Devises, by Jarman, 331, it is said that where a gift is made to a person, described as standing in a certain relation to the testator, and to the children of another person standing in the same relation, as to “ my brother A. and the children of my brother B.;” A. only takes a share equal to one of the children of B,, though it may be conjectured that the testator has a distribution according to the statute in his view.
The authorities abundantly support this position.
Thus in Blackler v. Webb, (2 P. Will. 383,) the testator bequeathed the surplus of his personal estate equally to his son James, and to his son Peter’s children, to his daughter Traverse and to his daughter W ebb’s children, and his daughter Man. It was decided that each of the children of Peter and of Mrs. Webb, took the same share that was taken by James and the other children of the testator named as legatees.
In Dowding v. Smith, (3 Beavan, 541,) the words of the will were these: “then the residue of the property do devolve to my niece Miss Mary Stockdale, of Piccadilly, and to the children of Mr. John Stockdale, to be equally divided.” There were five children of John S., one of whom was born after the testator’s death, but before the period for distribution arrived. The argument that the division was intended to be made in classes, was pressed upon the Master of the Rolls, but he decided that the residue must be divided per capita.
In Lenden v. Blackmore, (10 Simons’ R. 626,) the will [363]*363directed that after a certain event, the residue was “to be equally divided between Sybilla Lenden and Mary Seyer, daughters of my sister Elizabeth Seyer, and Elizabeth Black-more, daughter of my sister Susannah May, and her children.” At the death of the testator, Elizabeth Blackmore had eight children, and one more was born after that time but before the period of distribution. The Vice-Chancellor of England dedided that the residue must be divided into twelve shares, Mrs. Blackmore and her nine children each taking one.
In Warrington v. Warrington, (2 Hare’s R. 54,) the testatrix gave “ all other his real and personal estate and property in the joint stock bank called,” &c. “with all the rest, residue and remainder of my trust estate and property, whatever and wherever not herein disposed of; I leave equally between my brother Thornhill Warrington, my sister Ann Van Corlandt, widow, my nephew William Henry Warrington and Emma his wife, their heirs and assigns,” <fcc. In a previous clause of the will, the testatrix had spoken of Emma as her “ dear niece.” She was a niece, and her husband was a nephew of the testatrix. Sir James Wigram, V. C., decided that William Henry Warrington and Emma his wife, each took an equal share with the other two legatees and devisees. He says, “the number of shares into which the residue is divided, must be determined by counting the legatees among whom it is equally given.” “Here was a gift in severalty to several persons. There is nothing in the disposition of the names which can import any intention to treat either of them differently from the other legatees.” “ The husband and wife were equally of kin to the testatrix.”
In the case before me, all the considerations mentioned in the judgment in Warrington v. Warrington apply; and with the more force, because in that case the argument was strong against giving two shares to the husband and wife because they were in law, but one person.
Here the share of Ann was to be equally divided among five persons named. Three of the five were children, and two were grandchildren. They are described accordingly. And the argument upon the language of the bequest, (leaving out of [364]*364view what we may conjecture as to motives and intention,) id' as strong in favor of restricting the three daughters to one-half, as a class, as it is for restricting the two grandsons in the same manner to one-fourth.
By counting the persons amongst whom it is to be equally divided, we find there are five designated by name. It is impossible to say that of those five, two are to take only one-eighth part each, when the will says that it shall be equally divided.
The two Bunners are each entitled to one-fifth part of the property described- in the will as the share to which the testator’s daughter Ann would have been entitled, if living.
3. The guardian ad litem of Mrs. Cooper’s children, insists that her proportion of Ann’s share last mentioned, (which will be one-fifth,) is to be held by the trustees named in the will/ and not paid over to her. The executors are made trustees for her, and are directed to take and receive from the estate “ the full net amount” which should be coming to her “ as directed.” The clause immediately preceding, is a direction to the execu-* tors to take from her seventh part, sufficient to provide for the support of two of her children by a former husband during their minority; and the next succeeding paragraph gives to each of them on attaining their full age, two thousand dollars out of the same seventh part. It is urged that the words, “net amount,” limit this trust to the net amount of this seventh part.
It is to be observed that the gift of the seventh of the estate to Mrs. Cooper is made in a previous part of the will, before any allusion is made to Ann’s share, and without any reference to the trust. The gift of the one-fifth of Ann’s share is also directly to her. Then we find as to Ann’s seventh part or share, the executors, before dividing, it, are to make the same deductions from it for charges and advances to her, as are directed in reference to the other shares of the estate, and then to divide “ the remainder.” The words “ net amount,” are therefore [365]*365applicable to this residuum, as well as to that obtained from the seventh part of the estate first given to Mrs, Cooper.
And there is no other expression which can be laid hold of to distinguish the one-seventh from the fifth of Ann’s share, in the direction to the executors to take in trust the amount which shall be coming to Mrs. Cooper. The words “remaining amofint,” are referrible to the same feSiduum of the whole devise and bequest to her.
I think that no distinction was intended by the testator, and that it all goes to the trustees alike.
4. In regard to interest on the various amounts charged by the testator to his children, and which he directs them to account for in the division of his estate, but without interest; it is equitable that such amounts should be brought into the first dividend made of the estate, and if any balance remains due from either child, such balance to be deducted from the next dividend. And according to the express injunctions of the testator, no interest is to be charged on such amounts, or any part of them, although it may require more than their share in the first division or dividend to absorb the same.
There will be a decree accordingly, with costs of the respective parties td be paid out of the estate;
To the same effect, see De Witte v. De Witte, (11 Simons, 41;) Tomlin V. Hatfield, (12 Ibid. 167;) Bustard v. Saunders, (7 Beav. 92.)