The Chancellor.
As the complainants have not given the defendants an opportunity to substantiate their answers by proof, every matter of fact stated or insisted upon therein is to be taken as true. The defendant W. L. Shuler, disclaims'jall interest in the subject matter of this suit. He says he sold and conveyed all his interest in the estate tó his mother long before the filing of the bill; and that he believes that fact was known to the complainants. They had- therefor® [129]*129tío excuse for making him a party; and the bill as against him must be dismissed with costs. Herrick was also unnecessarily and improperly made a party to the suit. He was' a bona fide lessee, for a term of years which would expire before the youngest child became of age. Even upon the complainants’ construction of the will, the widow was entitled to the rents and profits of the farm until that time. And if they were entitled to a receiver of the rents and profits, to secure and apply them in aid of any deficiency of the personal estate, the tenant of the estate need not be a party to the suit. If he refused to attorn to the receiver, the latter might be directed to proceed against him in the name of the lessor to recover the rent as it became due. But there was no pretence for appointing a receiver of the income of the farm in this case during the minority of any of the .children. The bill as against Herrick, must therefore be dismissed with costs.
The defendants Betsey, Sally and Abraham Shuler, were necessary parties, if the complainants are entitled to an account or to any other relief in this case. They had a common interest with the complainants in the estate, and in the establishment and construction of the will. If the bill can be sustained even for the purpose of obtaining security, the complainants would be permitted to retain it for the purpose of having the trusts of the will carried into effect under the direction of the court. This could not be done if all the parties interested in the estate were not before the court. Whether these defendants must bear their own costs,, or whether they must be paid by the complainants, or out of the estate of the testator, are different questions.
The next question which arises in this case is, what interest in the property did the widow of the testator take under-the will? The rule contended for by the complainants’ counsel is undoubtedly correct, as stated by the master of the rolls in Sims v. Doughty, (5 Ves. 247. ) If two parts of a will are totally irreconciliable, the subsequent part is to be taken as evidence of a subsequent "intention. But this rule is only adopted from necessity, to prevent the avoiding of both pro» [130]*130visions for uncertainty-. ■ It is only applied in' those- cases where the intention of the testator cannot be discovered, and where the two provisions are so totally, inconsistent that it is. impossible for them- to coincide with each other, or with the general intention of the" testator. The great and leading, principle in the construction of wills is, that the intention - of the. testator, - if not inconsistent 'with' the-rules of, law, shall govern; and that intent must be ascertained from the whole will .taken together; and no part thereof to -which meaning and operation can be given, consistent with the general intention of the testator, shall be rejected. Where the words of one part of a will áre' capable of a two fold construction that should be adopted which is most consistent with the intention of the testator, as ascertained by other provisions in- • the will. And wheré the intention of the testator is incor-' rectly expressed, the court will effectuate it "by supplying the proper words. The strict grammatical sense is not always regarded ; but the words of the will may be transposed to make a limitation sensible, or to carry into effect thé general intent of the "testator. (11 Ves. 148, 1 Paige’s R. 343.) In Jesson v. Wright, (2 Bligh’s R. 56,) Lord Redesdále, says, “It cannot at this day be argued, that" because the testator uses in one part of his will words, having a clear meaning in law, and in another' part other words inconsistent with the ' former, that the first words are to. be cancelled or overthrown.” Testing the will in this cáse by these principles, I think" the widow of the testator is entitled to the use of the whole estate during her life or widowhood. The general intent of the testator appears to have been to give one third of ’ his personal estate to his wife absolutely, and the use of one , third of his real estate for life in lieu of dower if she married ,a second time.; and to give her the use of the whole estate . for life if she remained his widow. He undoubtedly supposed if she remained single that she would support and educate her children out of the income and profits of the estate,) until they were able to provide for "themselves. There was little probability she would .do injustice to any while there were no other claims on her bounty; and at her death, he intended they should share the property" equally. It was, [131]*131however, necessary to provide for, the contingency of a second marriage, when the property ‘ would be no longer under her control, but under that of her husband. The devise-to her of the use of all the residue of the personal estate and the occupation of the farm so long as she remained his widow, is clear and explicit, and is expressed in language which can bear only one construction. The subsequent clause of the will, which was intended to provide for the contingency, of a second marriage, is not so clear. The testator does not seem to have contemplated the possibility of her surviving him, , and remaining unmarried until the youngest child, then' an infant, became of age. He therefore directs tha.t after her marriage, she shall only have the use of one third of the estate ; from which time the income of the other two thirds was to be applied to the maintenance and education of the children; and that share of the estate was also in that case to be divided among the children equally, when the youngest became of age. If the last provision in the will can be considered as evidence of the final intention of the testator, a principle which I consider more fanciful than sound, it is in favor of the widow in this case; because, the last decla- ■ ration of the testator Recognizes the devise and bequest before made to his wife, and declares that the same is intended to be in lieu of, and in extinguishment of her dower. As the contingency has not yet happened which was to deprive her of the use of any part of the estate, the complainants cannot, claim a division of the property until her death or marriage. There can be no doubt of the right of the children of the testator by his wife Lena to the whole of the property, on the death of their mother, except the one third of the personals given to her absolutely. They take it by necessary impli. cation, though not by the express words of the will. Where there is a bequest for life, or other limited period with a limitation over, of specific articles, such as books, plate, &c. which are not necessarily consumed in the using, the first taker was formerly required to give security that the articles should be forth coming on the happening of the contemplated event. And the remainderman must take them in the situation in which they will'be left by the ordinary prudent use thereof by; [132]*132the first'taker. (Hale v. Burrodale. 1 Eq. Ca. Abr. 361. Bracken v. Bently, 1 Rep. in Ch.
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The Chancellor.
As the complainants have not given the defendants an opportunity to substantiate their answers by proof, every matter of fact stated or insisted upon therein is to be taken as true. The defendant W. L. Shuler, disclaims'jall interest in the subject matter of this suit. He says he sold and conveyed all his interest in the estate tó his mother long before the filing of the bill; and that he believes that fact was known to the complainants. They had- therefor® [129]*129tío excuse for making him a party; and the bill as against him must be dismissed with costs. Herrick was also unnecessarily and improperly made a party to the suit. He was' a bona fide lessee, for a term of years which would expire before the youngest child became of age. Even upon the complainants’ construction of the will, the widow was entitled to the rents and profits of the farm until that time. And if they were entitled to a receiver of the rents and profits, to secure and apply them in aid of any deficiency of the personal estate, the tenant of the estate need not be a party to the suit. If he refused to attorn to the receiver, the latter might be directed to proceed against him in the name of the lessor to recover the rent as it became due. But there was no pretence for appointing a receiver of the income of the farm in this case during the minority of any of the .children. The bill as against Herrick, must therefore be dismissed with costs.
The defendants Betsey, Sally and Abraham Shuler, were necessary parties, if the complainants are entitled to an account or to any other relief in this case. They had a common interest with the complainants in the estate, and in the establishment and construction of the will. If the bill can be sustained even for the purpose of obtaining security, the complainants would be permitted to retain it for the purpose of having the trusts of the will carried into effect under the direction of the court. This could not be done if all the parties interested in the estate were not before the court. Whether these defendants must bear their own costs,, or whether they must be paid by the complainants, or out of the estate of the testator, are different questions.
The next question which arises in this case is, what interest in the property did the widow of the testator take under-the will? The rule contended for by the complainants’ counsel is undoubtedly correct, as stated by the master of the rolls in Sims v. Doughty, (5 Ves. 247. ) If two parts of a will are totally irreconciliable, the subsequent part is to be taken as evidence of a subsequent "intention. But this rule is only adopted from necessity, to prevent the avoiding of both pro» [130]*130visions for uncertainty-. ■ It is only applied in' those- cases where the intention of the testator cannot be discovered, and where the two provisions are so totally, inconsistent that it is. impossible for them- to coincide with each other, or with the general intention of the" testator. The great and leading, principle in the construction of wills is, that the intention - of the. testator, - if not inconsistent 'with' the-rules of, law, shall govern; and that intent must be ascertained from the whole will .taken together; and no part thereof to -which meaning and operation can be given, consistent with the general intention of the testator, shall be rejected. Where the words of one part of a will áre' capable of a two fold construction that should be adopted which is most consistent with the intention of the testator, as ascertained by other provisions in- • the will. And wheré the intention of the testator is incor-' rectly expressed, the court will effectuate it "by supplying the proper words. The strict grammatical sense is not always regarded ; but the words of the will may be transposed to make a limitation sensible, or to carry into effect thé general intent of the "testator. (11 Ves. 148, 1 Paige’s R. 343.) In Jesson v. Wright, (2 Bligh’s R. 56,) Lord Redesdále, says, “It cannot at this day be argued, that" because the testator uses in one part of his will words, having a clear meaning in law, and in another' part other words inconsistent with the ' former, that the first words are to. be cancelled or overthrown.” Testing the will in this cáse by these principles, I think" the widow of the testator is entitled to the use of the whole estate during her life or widowhood. The general intent of the testator appears to have been to give one third of ’ his personal estate to his wife absolutely, and the use of one , third of his real estate for life in lieu of dower if she married ,a second time.; and to give her the use of the whole estate . for life if she remained his widow. He undoubtedly supposed if she remained single that she would support and educate her children out of the income and profits of the estate,) until they were able to provide for "themselves. There was little probability she would .do injustice to any while there were no other claims on her bounty; and at her death, he intended they should share the property" equally. It was, [131]*131however, necessary to provide for, the contingency of a second marriage, when the property ‘ would be no longer under her control, but under that of her husband. The devise-to her of the use of all the residue of the personal estate and the occupation of the farm so long as she remained his widow, is clear and explicit, and is expressed in language which can bear only one construction. The subsequent clause of the will, which was intended to provide for the contingency, of a second marriage, is not so clear. The testator does not seem to have contemplated the possibility of her surviving him, , and remaining unmarried until the youngest child, then' an infant, became of age. He therefore directs tha.t after her marriage, she shall only have the use of one third of the estate ; from which time the income of the other two thirds was to be applied to the maintenance and education of the children; and that share of the estate was also in that case to be divided among the children equally, when the youngest became of age. If the last provision in the will can be considered as evidence of the final intention of the testator, a principle which I consider more fanciful than sound, it is in favor of the widow in this case; because, the last decla- ■ ration of the testator Recognizes the devise and bequest before made to his wife, and declares that the same is intended to be in lieu of, and in extinguishment of her dower. As the contingency has not yet happened which was to deprive her of the use of any part of the estate, the complainants cannot, claim a division of the property until her death or marriage. There can be no doubt of the right of the children of the testator by his wife Lena to the whole of the property, on the death of their mother, except the one third of the personals given to her absolutely. They take it by necessary impli. cation, though not by the express words of the will. Where there is a bequest for life, or other limited period with a limitation over, of specific articles, such as books, plate, &c. which are not necessarily consumed in the using, the first taker was formerly required to give security that the articles should be forth coming on the happening of the contemplated event. And the remainderman must take them in the situation in which they will'be left by the ordinary prudent use thereof by; [132]*132the first'taker. (Hale v. Burrodale. 1 Eq. Ca. Abr. 361. Bracken v. Bently, 1 Rep. in Ch. 110.) The modern prac-tice in such cases is only'to require an inventory of the artic]eg) specifying that they belong the first taker for the particular period only and afterwards, to the person in remainder and security is riot .required, unless there is danger that. the articles may be wasted or otherwise lost to the remain- ■ derman. (Foley v. Burnell, 1 Bro. Ch. Ca. 279. Slanney v. Style, 3 Peere Wms, 336.) / Whether a gift for life of specific articles, as of hay, grain, &c. which must necessarily be consumed in the using, is to be considered an absolute gift of the property, or whether they must be sold and the interest or income only of the money applied to the use of the tenant for life, appears to be a question still unsettled in England. (3 Ves. 314. 3 Mer. 194.) But none of these principles, in relation to specific bequests "of' particular articles, whether capable of a separate use- for life or otherwise, are applicable to this case. .Where -there is a general bequest. of a- residue, for life with a remainder over, although it includes articles of both descriptions as well as other property, .the whole must be sold and coverted into money by the executor, and the proceeds must be invested in permanent securities, and the interest or income only is to be paid to the legatee for life. This distinction is recognized by the master of the rolls, in Randall v. Russell, (3 Her. R. 193.) He says, if such articles are included in a residuary bequest for life, then they are to be sold and the interest enjoyed by the tenant for life. This is also recognized by Roper &t Preston as a settled principle of law in England. (Prest, on Leg. 96. Roper, on Leg. 209. See also How v. Earl of Portsmouth, 7 Ves. 137, and cases in notes-Tf The case of De Witt v. Schoonmaker, (2 John. R. 243,)7seems to be in collision with this principle. But Mr.' Justice Tompkins, who delivered the opinion of the .court there, does not appear to have noticed the - distinction between the bequest of a general residue, and the bequest of specified articles. He says, however, it -was the duty of the'executors on the death of the widow,, to have paid and delivered the personal estate to the residua- '' ry legatee. If such was their duty,, they were not bound ■ [133]*133to deliver the principal of the estate into her hands without requiring security that it should be preserved and paid over to the residuary legatee after her death. That case was correctly decided; for it was manifestly the intention of the testator that the property should be delivered over to the son, after the death of the widow, and that he should pay the legacy to his sister. The court presumed he had received the property agreeably to the directions of the will, and the executor’s were held not to be liable to the legatee in a court of law.
In the case before me, the widow was not entitled to the use or possession of any specific article of the personal estate ; but only to one third of the principal, and the interest or income of two thirds of the remainder, of the general residue, after the debts of the testator and the legacy to Mrs. Cady were paid or satisfied. The complainants are therefore entitled to an account of all the personal estate of the testator, in value as it existed at the death of their father ; and after deducting the legacy to Mrs. Cady and the funeral charges and the expenses of administration, their share of the balance must be invested in permanent securities, and the income thereof paid to Lena Shuler during her life or widowhood ; and the principal, after her death or marriage, must go to the complainants.
I have stated the rights of these parties in the hope that some arrangement may be made for the settlement of these family difficulties, without the necessity of any further litigation ; and I have formed no definite opinion as to the question of costs on either side. But no decree for an account can now be made, as all the proper parties are not before the court. It appears by the pleadings that the testator left other children, besides those by Lena Shuler who were the residuary devisees and legatees in remainder. Jeremiah, one of the children of Lena Shuler, died after his father; and under the pi'ovisions of the will he took a vested interest in remainder in the personal as well as the real estate. (Sturges v. Pearson, 4 Mad. Rep. 411. Benyon v. Maddison, 2 Bro. C. C. 75. Preston on Leg. 70. 1 Roper on Leg. 376. 2 Bessaus. Rep. 295.) In that share of the estate John Shuler [134]*1349.nd Mrs. -Cady, and the other, brothers arid sisters of the half blood, if there are any, are equally entitled with those of the whole blood. The cause must therefore.stand over, with leave to the complainants, or such of them as have not released their interest to their mother, to file a supplemental bill for..the purpose of bringing the personal representative of 'Jeremiah .Shuler before the court,'or such other persons entitled to a 'distributive share of his estate as are not now •’ parties. . Those who have conveyed all their interest in the real and personal estate to their mother,, since the death of Jeremiah; have no interest in the ■ account to be taken, and need not be parties.