Strong, J.
There is sufficient in the will of Samuel Borland to authorize the call which the plaintiffs make upon this court to give it a judicial construction. There are doubtful clauses in reference to the disposition as well of the personal as of the real estate. There are also doubts as to the validity and extent of the power to sell the testator’s land, given to the executors.
The will is inartificially drawn, and some of the intentions of the testator are expressed in obscure, if not contradictory, terms. But I think there is sufficient in the will and codicil, together, to denote the main intentions of the testator, and to carry them into effect. At any rate, there is not so much uncertainty as to require this court to pronounce the two instruments, or either of them, null and void.
The testator’s widow, and his four children by her, were entitled to the use of the stock, farming utensils, provisions, grain and household furniture, not required for the payment of his debts, and excepting the cow, bed, bedstead and bedding bequeathed absolutely to the widow, until his farm should be sold, or the widow marry, or their third child should arrive to the age of ten years, whichever should first happen. The term was not extended by the codicil, but the fourth child was to be provided for in like manner with the other three. As it turned out, the term expired when the third child attained the age of ten years. Until then, the widow and her four children were entitled equally to the use of such personal property. That the absolute title to it was not bequeathed to them is evident from the authority given to the executors to sell the personal property at any time within that period, if they should deem it ex[78]*78pedient. The title remained in the executors, subject to the right to the use of it bequeathed to the widow and her four children. As it was to be used by them specifically, and not as a general fund, they are not chargeable with its value at the death of the testator, but for what it was worth, or would have been worth from prudent usage, at the time when their right to its enjoyment expired. There was not, however, any actual valuation of it at that time ; and as it remained in the possession of the widow and her children, and was doubtless subsequently much deteriorated, if not entirely consumed or worn out, it cannot now be restored in kind, to the estate. The only alternative left, is for the widow and her children to account for its then value. And the one-fifth part must be deducted from the legacies payable to each from the avails of the real and personal estate. It is difficult to establish a rule for the valuation of the effects left for the use of the widow and minor children, as they were, or should have been, when the third of those children arrived at the age of ten years. • I can conceive of none better than to assume what they were worth at the time of the testator’s decease, and deduct the probable diminution by wear and tear, and the death of stock, between that time and the end of the term. It must be referred to Ulysses Cole, Esq., to take and report an account upon those principles. The parties who have appeared have all a right to be heard, and must be summoned to attend the reference.
The widow and her four children were entitled to the use and enjoyment of the testator’s land until the youngest child should attain the age of twenty-one years ; the children absolutely, and the widow unless she should marry in the mean time. And if she did marry, then only to the time of her marriage. The codicil is very clear to that effect, and the duration of the estate of the children is in no manner dependent upon the marriage of their mother, except that upon the happening of that contingency they were entitled to the entire use of the property during the residue of the term. They are not bound to account to the other heirs for the rents or profits of the land. And the produce on hand at the expiration of the [79]*79term, and the stock, farming utensils, and furniture, were their property.
There is nothing in the gifts of the use of the real and personal estate to the widow and minor children, which could suspend the absolute power of alienation of the real estate, or the ownership of the personal property, for a longer period than during the lifetime of the widow and the minority of her youngest child. Neither the devise or bequest of such use, nor of the property over, was void as contravening any rule applicable to executory devises.
The widow was entitled to one cow, and a bed, bedstead and bedding for the same, immediately after the death of the testator. As the farm had not been sold during her widowhood, she has no right to another cow, or any additional household furniture.
The executors are fully empowered to sell and convey the real estate. They had the power to do so, at their discretion, before the youngest child arrived at the age of twenty-one years. They are bound to do so now. The first provision on the subject clearly gives them the power to sell, if they should deem it necessary, before the third of the minor children should attain the age of ten years. There is strong reason to infer, from the whole of that clause, that the authority to sell was intended to be unlimited as to time. The word “ sooner,” which precedes the words conferring the power, would seem to refer to the possible necessity for an early sale, and was not probably designed to qualify the power. The testator did not intend that the property should be sold while the wants or convenience of his family required that they should occupy it; unless the sale should become necessary. But he intended to give positive directions that it should be sold at some period. This inference is much strengthened by a subsequent provision in the will. In that provision the testator directs that when the farm is sold the money shall be divided; and then proceeds to give various portions of it absolutely to his widow and several of his children. This clause, if it stood alone, would, by necessary implication, give a general power to sell. The executors are [80]*80not named in that part of the will as the donees of the power :• hut the consequent gift of tire avails in the shape of legacies necessarily devolves it upon them. And such is the rule. (Sugd. on Powers, 167. 4 Hill’s Rep. 500.) The testator gives unequal sums to the distributees ; evincing a disposition to make an unequal division of his property. Should there be no sale, and the land should descend to the heirs, that intention, which he no doubt thought was founded upon sufficient reasons, would be entirely defeated. Indeed, should there be no sale, there would be no disposition at all of the principal part of the estate. It is evident,, however, that no such thing as intestacy, as to any part of the property, was designed. It is also apparent, from the provision in the codicil that the widow and minor children should have the privilege of remaining on the farm until the youngest child should be of age, unless the executors should find it necessary to sell the same sooner, as expressed in the will, that the testator did not intend to limit the power of sale, but that he supposed that such sale might take place at any time during the minority of the youngest child, although it might be after the third of his minor children should attain the age of ten years, as expressed in the will. If it extended beyond the latter period, there was assuredly no limitation as to time. It is well settled that no formal' set of words is requisite to create or reserve a power. It is sufc ficient if the intention be clearly declared.
Free access — add to your briefcase to read the full text and ask questions with AI
Strong, J.
There is sufficient in the will of Samuel Borland to authorize the call which the plaintiffs make upon this court to give it a judicial construction. There are doubtful clauses in reference to the disposition as well of the personal as of the real estate. There are also doubts as to the validity and extent of the power to sell the testator’s land, given to the executors.
The will is inartificially drawn, and some of the intentions of the testator are expressed in obscure, if not contradictory, terms. But I think there is sufficient in the will and codicil, together, to denote the main intentions of the testator, and to carry them into effect. At any rate, there is not so much uncertainty as to require this court to pronounce the two instruments, or either of them, null and void.
The testator’s widow, and his four children by her, were entitled to the use of the stock, farming utensils, provisions, grain and household furniture, not required for the payment of his debts, and excepting the cow, bed, bedstead and bedding bequeathed absolutely to the widow, until his farm should be sold, or the widow marry, or their third child should arrive to the age of ten years, whichever should first happen. The term was not extended by the codicil, but the fourth child was to be provided for in like manner with the other three. As it turned out, the term expired when the third child attained the age of ten years. Until then, the widow and her four children were entitled equally to the use of such personal property. That the absolute title to it was not bequeathed to them is evident from the authority given to the executors to sell the personal property at any time within that period, if they should deem it ex[78]*78pedient. The title remained in the executors, subject to the right to the use of it bequeathed to the widow and her four children. As it was to be used by them specifically, and not as a general fund, they are not chargeable with its value at the death of the testator, but for what it was worth, or would have been worth from prudent usage, at the time when their right to its enjoyment expired. There was not, however, any actual valuation of it at that time ; and as it remained in the possession of the widow and her children, and was doubtless subsequently much deteriorated, if not entirely consumed or worn out, it cannot now be restored in kind, to the estate. The only alternative left, is for the widow and her children to account for its then value. And the one-fifth part must be deducted from the legacies payable to each from the avails of the real and personal estate. It is difficult to establish a rule for the valuation of the effects left for the use of the widow and minor children, as they were, or should have been, when the third of those children arrived at the age of ten years. • I can conceive of none better than to assume what they were worth at the time of the testator’s decease, and deduct the probable diminution by wear and tear, and the death of stock, between that time and the end of the term. It must be referred to Ulysses Cole, Esq., to take and report an account upon those principles. The parties who have appeared have all a right to be heard, and must be summoned to attend the reference.
The widow and her four children were entitled to the use and enjoyment of the testator’s land until the youngest child should attain the age of twenty-one years ; the children absolutely, and the widow unless she should marry in the mean time. And if she did marry, then only to the time of her marriage. The codicil is very clear to that effect, and the duration of the estate of the children is in no manner dependent upon the marriage of their mother, except that upon the happening of that contingency they were entitled to the entire use of the property during the residue of the term. They are not bound to account to the other heirs for the rents or profits of the land. And the produce on hand at the expiration of the [79]*79term, and the stock, farming utensils, and furniture, were their property.
There is nothing in the gifts of the use of the real and personal estate to the widow and minor children, which could suspend the absolute power of alienation of the real estate, or the ownership of the personal property, for a longer period than during the lifetime of the widow and the minority of her youngest child. Neither the devise or bequest of such use, nor of the property over, was void as contravening any rule applicable to executory devises.
The widow was entitled to one cow, and a bed, bedstead and bedding for the same, immediately after the death of the testator. As the farm had not been sold during her widowhood, she has no right to another cow, or any additional household furniture.
The executors are fully empowered to sell and convey the real estate. They had the power to do so, at their discretion, before the youngest child arrived at the age of twenty-one years. They are bound to do so now. The first provision on the subject clearly gives them the power to sell, if they should deem it necessary, before the third of the minor children should attain the age of ten years. There is strong reason to infer, from the whole of that clause, that the authority to sell was intended to be unlimited as to time. The word “ sooner,” which precedes the words conferring the power, would seem to refer to the possible necessity for an early sale, and was not probably designed to qualify the power. The testator did not intend that the property should be sold while the wants or convenience of his family required that they should occupy it; unless the sale should become necessary. But he intended to give positive directions that it should be sold at some period. This inference is much strengthened by a subsequent provision in the will. In that provision the testator directs that when the farm is sold the money shall be divided; and then proceeds to give various portions of it absolutely to his widow and several of his children. This clause, if it stood alone, would, by necessary implication, give a general power to sell. The executors are [80]*80not named in that part of the will as the donees of the power :• hut the consequent gift of tire avails in the shape of legacies necessarily devolves it upon them. And such is the rule. (Sugd. on Powers, 167. 4 Hill’s Rep. 500.) The testator gives unequal sums to the distributees ; evincing a disposition to make an unequal division of his property. Should there be no sale, and the land should descend to the heirs, that intention, which he no doubt thought was founded upon sufficient reasons, would be entirely defeated. Indeed, should there be no sale, there would be no disposition at all of the principal part of the estate. It is evident,, however, that no such thing as intestacy, as to any part of the property, was designed. It is also apparent, from the provision in the codicil that the widow and minor children should have the privilege of remaining on the farm until the youngest child should be of age, unless the executors should find it necessary to sell the same sooner, as expressed in the will, that the testator did not intend to limit the power of sale, but that he supposed that such sale might take place at any time during the minority of the youngest child, although it might be after the third of his minor children should attain the age of ten years, as expressed in the will. If it extended beyond the latter period, there was assuredly no limitation as to time. It is well settled that no formal' set of words is requisite to create or reserve a power. It is sufc ficient if the intention be clearly declared. The language of the testator is to be construed equitably and liberally in furtherance of the intention. (4 Kent’s Com. 319. Doug. 293. 3 East, 441. Jackson v. Veeder, 11 John. 169.)
As the youngest child has now attained the age of twenty-one years, it is clearly the duty of the executors to proceed immediately to execute the power conferred upon them. They must be directed to sell the lands, and the sale may be public or private, as they may deem either the most conducive to the interests of those who are entitled to the proceeds. The avails must be distributed agreeably to the directions contained in the will.
The defendants Hoag and wife, are entitled to the five hum [81]*81dred dollars bequeathed to Mrs. Hoag, as the testator’s widow, and the executors must pay that amount to them; first deducting, however, the one-fifth part of the amount reported to be due from her and her children on account of the personal estate used by them. And those defendants must execute a written declaration, in such form as shall be approved by Mr. Cole, that the same is received in lieu of her dower, and in full satisfaction of the claims which she had against the testator’s real estate. The gift of that sum is absolute. The direction to the executors to put the money at interest, for her support, does not in any manner revoke or qualify the donation. It merely relates to the investment, and, as it is inconsistent with the absolute title before given to her, it is null and void. There can be no valid qualification subsequently attached to a fee simple absolute in lands, or a full title to personal property.
The four younger children are entitled to two hundred and fifty dollars each; the first three under the will, and the youngest under the codicil. The executors must pay that sum to each, deducting from their respective shares the one-fifth part of the amount reported due from them on account of the personal estate.
The testator’s son, Andrew Borland, is entitled to four hundred and thirty dollars out of the avails of the real estate, should that sum be left after payment of the legacies to the widow and her children. There is, in terms, a qualification to his legacy, which would seem to make it dependent upon there being any money on hand after the testator’s affairs should be settled. That undoubtedly refers to the payment of the several legacies previously given. His is to be postponed to those given to the widow and her children. As there will be sufficient to pay all those preferred legacies, the qualification will not apply. As to the direction that the executors shall pay him such part as may appear proper to them, that is inconsistent with the absolute gift, and is therefore void. The executors must pay him the full amount, if there should be sufficient for that purpose.
The residue of the testator’s estate, after deducting therefrom [82]*82the costs of the several parties in this suit, must be divided in equal portions between the testator’s children who are living, and the next of kin of those who have died, per stirpes, and not per capita. Each surviving child is entitled to the thirteenth part, and the next of kin of each deceased child is also entitled to the same part, of such residue. The question whether the children of the testator took an immediate vested interest in the legacies which they were entitled to receive on the final distribution of the estate, was waived by all the parties on the argument ; but I conceive that a decision of that question is necessary for the protection of the executors. As the postponement of the sale and of the payment of the avails was for the benefit of the widow and minor children, and not from any considerations personal to the legatees generally, they took a vested interest immediately after the decease of the testator, and consequently the estates of those who are dead were transmissible to their representatives.
The debts due from the testator’s sons, John, Isaac and Sea-burn, including the interest up to the time of the distribution, not exceeding the amount of their respective shares, must constitute a part of the estate to be divided. If the debt of either falls short of his share, the difference must be paid to him if living, or, if dead, to his next of kin. If the indebtedness should exceed the share of either, it becomes extinguished by the terms of the will, but in that case, or if it should be equal to his share, he or the next of kin will not be entitled to any part of the fund.
It is manifestly proper, and I shall direct, that the costs of all the parties shall be paid out of the residue of the testator’s estate, after the payment of the legacies particularly specified, and before any final division shall be made.