HaNdy, O. J.,
delivered tbe opinion of tbe court.
Tbe appellee, tbe widow of Thomas Brandon, deceased, filed ber petition in tbe Court of Probates against tbe appellants, as executors of ber husband, praying that they might be decreed to pay ber a sum of money for ber support, which she claimed to be entitled to under tbe provisions of ber husband’s will. Tbe executors answered, denying ber right to tbe allowance [741]*741claimed, under the^ will; and on tbe hearing, upon the pleadings and proofs, the court decreed her an annual allowance of $2,000, and from that decree the executors took this appeal.
The first and most important question in the case is, whether, by a proper construction of the will, the widow was entitled to the allowance for support claimed in her petition.
The parts of the will necessary to be taken into view, in determining this question, are in substance as follows:
In the first place, he leaves all his property, real, personal, and mixed, to be equally divided between his widow and eight children named, share and share alike, leaving it to the discretma of the widow and children, and his executors, to divide all his property immediately after his death, and each legatee to become responsible separately for an equal proportion of his debts; or to keep it together until all the debts should be paid. After some other provisions and special legacies, not material to the present case to be stated, it expresses the wish that his widow should occupy the house and lot, his place of residence, with the furniture, free of charge as long as she might choose, and as long as she remained a widow; but when she should cease to be so, that the property should be sold, and the proceeds equally divided between her and his children; that she should have ag her own the carriage and horses on hand at the time of his death. Then follow, these clauses, which are the provisions on which her claim in this petition are founded : “It is also my will and wish, that my wife, Mary W. Brandon, shall home an ample support out of my estate, until sueh time as ma/y le required to enable her to home control of her own property. It is my will that my wife shall have, as her own property, the following five slaves” (naming them), “ and such other property and money as my children have heretofore received. I have heretofore given each of my children five negroes, and have also given them other property and money; and it is my desire that my -wife, shall be placed on an equal footing in the division of my property, with my children. Jfy children all know what they have received from me, and I wish my wife to receive a like amount; and this last bequest must take effect before a division of my prop[742]*742erty is made, and wbenthis is done I think none will have cause to complain.”
It is insisted on the part of the appellants, that having provided, in the first part of the will, that his estate should be equally divided between his widow and children, either immediately after his death, or after his debts should be paid, the clause in relation to his wife having an ample support out of his estate had not reference to the time when the final division and distribution of the shares of the parties should be made, as the period until which support should be furnished her, but to the time when she should receive the five slaves, and money to the amount of what he had given his children. In support of this view, it is contended that the words employed in this clause, and that which immediately follows it, show that he had reference to the time when she should receive the property specially bequeathed to her, and not to the time when she should receive her share of the estate on the final distribution ; that the ques • tion, what property was referred to in the first clause, which provides for her support “ until such time as may be required to enable her to have control of her own property” is solved by the clause- which immediately follows, that she “ shall have, as her own property,” the five slaves, etc.; and that it is thus shown that the former was the antecedent and the latter the relative, and that when the five slaves and money were received by her, her right to the support was at an end.
This view, though plausible, is not consistent with other provisions of the will, and with the intention of the testator as manifested by its general context. A literal construction is not to be indulged, which would defeat an intention appearing from the whole will; but we must consider all its parts and the circumstances under which it was made, as shown on its face, and thereby ascertain the intention of the testator.
It is very manifest, from the instrument, that it was a cherished object of the testator to make suitable provisions for the support of his wife after his death. The dispositions of his property were such that, if accepted by her, she would be deprived of the means of support which our laws allowed her; and it [743]*743appears from his declarations in the will, that he was greatly desirous that she should not renounce it. Indeed he inserted provisions in the will expressly to prevent that course on her part. He appears to have been a man of intelligence and of strong practical judgment, and to have regarded his wife, as well as his children, with very great affection, and with much consideration for their future welfare. It is highly probable, from his intelligence shown in the will, that he was aware of the provision which the law made for her support after his death, and that she would lose the benefit of that by accepting the will, and would have no means of support except such as were provided by the will.
It is likewise apparent, from the face of the will, that the testator contemplated the contingency that his property might be kept together for a considerable length of time, for the purpose of raising the means to pay his debts, the necessary result of which would be to defer the final distribution, by which his widow would be without the benefit of bur ultimate share of his estate, in all probability, for several years. And it w'lld bo inconsistent with the solicitude for the welfare of Id: w he, which he fully manifests, to suppose that he did not intend‘to make adequate provision for her support in the meantime.
It is also highly improbable that a man of his intelligence, who had given such careful considoratioti, as is shown by the will, to the condition and circumstances of those to whom he left his property, and ^specially to his widow, that he was not aware that the property specially bequeathed to her would be delivered to her very soon after his death ; for there was nothing in the circumstances of the estate, or in the feelings of his children towards her, to show that such delivery was not anticipated by him. Indeed, it is plain that he expected and desired it; for, after saying that she should occupy the house and lot in which he might reside at the time of his death, with the furniture, and giving her his carriage and horses that might be on hand at his death, he says it is his will “ that she shall home as her own property ” the five slaves named, and such other property and money as his children had theretofore received ; and then ho [744]*744states “ tbat tbis last bequest must take effect before a division of Ms property is made.”
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HaNdy, O. J.,
delivered tbe opinion of tbe court.
Tbe appellee, tbe widow of Thomas Brandon, deceased, filed ber petition in tbe Court of Probates against tbe appellants, as executors of ber husband, praying that they might be decreed to pay ber a sum of money for ber support, which she claimed to be entitled to under tbe provisions of ber husband’s will. Tbe executors answered, denying ber right to tbe allowance [741]*741claimed, under the^ will; and on tbe hearing, upon the pleadings and proofs, the court decreed her an annual allowance of $2,000, and from that decree the executors took this appeal.
The first and most important question in the case is, whether, by a proper construction of the will, the widow was entitled to the allowance for support claimed in her petition.
The parts of the will necessary to be taken into view, in determining this question, are in substance as follows:
In the first place, he leaves all his property, real, personal, and mixed, to be equally divided between his widow and eight children named, share and share alike, leaving it to the discretma of the widow and children, and his executors, to divide all his property immediately after his death, and each legatee to become responsible separately for an equal proportion of his debts; or to keep it together until all the debts should be paid. After some other provisions and special legacies, not material to the present case to be stated, it expresses the wish that his widow should occupy the house and lot, his place of residence, with the furniture, free of charge as long as she might choose, and as long as she remained a widow; but when she should cease to be so, that the property should be sold, and the proceeds equally divided between her and his children; that she should have ag her own the carriage and horses on hand at the time of his death. Then follow, these clauses, which are the provisions on which her claim in this petition are founded : “It is also my will and wish, that my wife, Mary W. Brandon, shall home an ample support out of my estate, until sueh time as ma/y le required to enable her to home control of her own property. It is my will that my wife shall have, as her own property, the following five slaves” (naming them), “ and such other property and money as my children have heretofore received. I have heretofore given each of my children five negroes, and have also given them other property and money; and it is my desire that my -wife, shall be placed on an equal footing in the division of my property, with my children. Jfy children all know what they have received from me, and I wish my wife to receive a like amount; and this last bequest must take effect before a division of my prop[742]*742erty is made, and wbenthis is done I think none will have cause to complain.”
It is insisted on the part of the appellants, that having provided, in the first part of the will, that his estate should be equally divided between his widow and children, either immediately after his death, or after his debts should be paid, the clause in relation to his wife having an ample support out of his estate had not reference to the time when the final division and distribution of the shares of the parties should be made, as the period until which support should be furnished her, but to the time when she should receive the five slaves, and money to the amount of what he had given his children. In support of this view, it is contended that the words employed in this clause, and that which immediately follows it, show that he had reference to the time when she should receive the property specially bequeathed to her, and not to the time when she should receive her share of the estate on the final distribution ; that the ques • tion, what property was referred to in the first clause, which provides for her support “ until such time as may be required to enable her to have control of her own property” is solved by the clause- which immediately follows, that she “ shall have, as her own property,” the five slaves, etc.; and that it is thus shown that the former was the antecedent and the latter the relative, and that when the five slaves and money were received by her, her right to the support was at an end.
This view, though plausible, is not consistent with other provisions of the will, and with the intention of the testator as manifested by its general context. A literal construction is not to be indulged, which would defeat an intention appearing from the whole will; but we must consider all its parts and the circumstances under which it was made, as shown on its face, and thereby ascertain the intention of the testator.
It is very manifest, from the instrument, that it was a cherished object of the testator to make suitable provisions for the support of his wife after his death. The dispositions of his property were such that, if accepted by her, she would be deprived of the means of support which our laws allowed her; and it [743]*743appears from his declarations in the will, that he was greatly desirous that she should not renounce it. Indeed he inserted provisions in the will expressly to prevent that course on her part. He appears to have been a man of intelligence and of strong practical judgment, and to have regarded his wife, as well as his children, with very great affection, and with much consideration for their future welfare. It is highly probable, from his intelligence shown in the will, that he was aware of the provision which the law made for her support after his death, and that she would lose the benefit of that by accepting the will, and would have no means of support except such as were provided by the will.
It is likewise apparent, from the face of the will, that the testator contemplated the contingency that his property might be kept together for a considerable length of time, for the purpose of raising the means to pay his debts, the necessary result of which would be to defer the final distribution, by which his widow would be without the benefit of bur ultimate share of his estate, in all probability, for several years. And it w'lld bo inconsistent with the solicitude for the welfare of Id: w he, which he fully manifests, to suppose that he did not intend‘to make adequate provision for her support in the meantime.
It is also highly improbable that a man of his intelligence, who had given such careful considoratioti, as is shown by the will, to the condition and circumstances of those to whom he left his property, and ^specially to his widow, that he was not aware that the property specially bequeathed to her would be delivered to her very soon after his death ; for there was nothing in the circumstances of the estate, or in the feelings of his children towards her, to show that such delivery was not anticipated by him. Indeed, it is plain that he expected and desired it; for, after saying that she should occupy the house and lot in which he might reside at the time of his death, with the furniture, and giving her his carriage and horses that might be on hand at his death, he says it is his will “ that she shall home as her own property ” the five slaves named, and such other property and money as his children had theretofore received ; and then ho [744]*744states “ tbat tbis last bequest must take effect before a division of Ms property is made.”
He was a man of large estate, worth some $250,000 or more; his family occupied a high position in society in Aberdeen, where he resided, and he lived in the enjoyment of all the comforts and conveniences of life, bountifully, and even sumptuously, up to the time of his death.
These circumstances enable us correctly to interpret his true intention in the provision of his will, for the “ ample support ” of his wife until “ she should have control of her own property; ” and from them it appears to us quite clear that “ her own propertycontemplated, was not the property specially bequeathed to her.
In the first place, that property was entirely inadequate to her support. It consisted of the use and occupancy of the family mansion and furniture, a carriage and horses, four female slaves, and one male slave, which were, doubtless, household servants; and such other property and money as he had given his children severally — which is shown to be only $300. The carriage and horses, and the slaves, could not be productive of income, but must be a source of expense/as the horses had to be fed, and the slaves fed and clothed, with medical bills and other necessary expenses to be incurred on their account. To meet all the expenses necessary for her own food and clothing, and family establishment, in the style in which the testator must have intended she should live, and to bear the expenses above-mentioned to be incurred on account of the other property left her, she would have had only the sum of three hundred dollars, if the construction of the will contended for by the aj>pellants be correct. It is very clear that that sum must have been quite insufficient for her necessary support, even with the strictest economy that she could have used, and that a person of her position in society could have been expected to adopt. This sum would have been entirely inadequate to her reasonable expenses for one year; and to liavé restricted her to the state of living which that sum would have driven her to for one year’s expenses, is most clearly what the testator never [745]*745contemplated; and sucb a result a man of bis practical sense could not bare failed to notice, and therefore could not have intended.
But when we consider that, under the construction contended for on the part of the appellants, this sum might — in the contingency contemplated in the will, of keeping the property together probably for years for the payment of the testator’s debts — ■ be postponed for that length of time; it is wholly out of the question that he could have intended that this sum should be her only means of support for that time.
Again, it is evident from the face of the will, that she should have the property specially left her, immediately after his death. She was to continue to use and occupy the dwelling-house and fnrniture after his death, and the other property specially bequeathed to her was given for the same purpose, and was indeed necessary to her keeping and occupying the house as her place of residence; for without the servants and money she could not have kept house. It is therefore clear, that he intended this property and money to be delivered to her soon after his death; and, hence, there would have been no necessity that he should make provision for her support until that property should come to her possession ; and it is in the highest degree unreasonable that, with reference to her obtaining possession of that property, he would have directed that she should “ have ample support out of his estate, until suoh time as may T>e required to enable her to have control of her own property.” Bor no time was contemplated as necessary to enable her to have such control, and which could require that provision should be made for her support in the interim.
But it is clear that the property specially bequeathed her was not the property referred to in this clause, since, by an express clause in the will, she was to have that property “ before division ” of his general estate; and the reason of that disposition is stated to be to make her equal, before the general distribution, with his children, who had already received the same amount of property from him, so that she and they, when the general distribution should be made, should come in on the same footing.
[746]*746From all this it is manifest, that the “ ample support ” intended by tbe testator, had reference to the time when she should receive her share of the estate upon the general distribution, and that provision for that purpose should be made until that time.
The next question presented is, whether the widow waived her right to this support until final distribution, by giving her consent, as she did in December, 1859, to the sale of the property, which was proposed by the executors.
We are unable to perceive on what ground her consent to this sale could operate as a release of her claim. It appears that the sale was made by order of the Court of Probates, and for the purpose of distribution among the legatees. For aught that appears, the sale might have been ordered by the court, without the consent of the widow; and it must have been made on the application of the executors. The order of sale must have been made by the court, on the ground that the property was not susceptible of equal division between all the parties entitled. It was, then, a step necessary toward the distribution of the estate, which was the result contemplated by the testator; for the provision of the will is, that she should have the support until the estate should be distributed. It was not distributed by the sale; and the same necessity existed for her support after the sale and until such distribution as before. The sale was a mere legal mode of effecting a distribution, and her consent to it certainly could not prejudice any right that she would have had if she had not given her consent.
But it was a step taken by the executors in order to effect a distribution; and they cannot be heard to say that she has lost her right of supjjort because she consented to their act, done for the purpose of effecting a distribution.
It is said that she waived her right of support because the sale was made for a price enhanced over the appraised or estimated value of the property, and that it bore interest which would increase her distributive share when finally realized; and that her consent, and the benefit arising to her in consequence of the sale, amounted in effect to a distribution, and therefore put an end [747]*747to ber right of support. But the sale seems to have been, by consent of all parties interested, and the other distributees were equally benefited by it with herself. And the same reason and necessity for her support continued after, as before it was made, and must have continued, for aught that appears, until her share of the estate was distributed to her.
There is, therefore, no force in this objection.
The last objection urged is, that the allowance was excessive.
It appears, by the evidence, that the family were of the first class of society during the testator’s life; that they lived in the abundant enjoyment of all the comforts of life customary in the place among persons of standing and wealth, liberally and even sumptuously. The direction of the will is, that she should have an ample support out of his general estate, and his bequest to her of five slaves, which appear to be domestic and family servants, and his carriage and horses, shows that he expected her to live in the same liberal manner to which she had been accustomed. The testimony on which the court fixed the amount of allowance for her support, goes to show that from $2,000 to $3,000 would have been necessary for her support in the manner in which she had previously lived; and the court took the lowest sum stated by the witnesses, which was $2,000.
"We think that this allowance was reasonable, just, and proper, in her circumstances, and that it is fully justified by the expectations of the testator, as shown by his will.
Let the decree be affirmed.