The Vice-Chancellor.
From the importance of the questions which I am called upon to consider in this case, I have been induced to examine it with great care. The settle[248] ment of a large estate depends upon the construction to be given to the will; and the result involves the interests not only of the parties before the court but of those who may come after them.
By the codicil, or, as it may with propriety be called, the last clause of the will, (since it is an express confirmation and republication of the will and the whole is made to speak from that time as one instrument,) it is declared, that this after-born child shall have an equal share of the property with the other children, notwithstanding it may have been thereinbefore appropriated.
If in the previous part of the will the testator had simply given to his five children the whole of his estate, equally to be divided between them, or, to each an equal fifth part thereof, there would have been no difficulty under the latter clause or codicil: because, then their shares being equal and the complainant coming in for an equal share with the rest, the estate would have to be divided into six instead of five parts. The difficulty arises from the circumstance of the testator’s other children not taking equal shares or parts in the whole estate, but only in the residue, after the particular bequests and devises are satisfied. On this account, it is said, the complainant cannot have an equal share with the others, because they are all unequal among themselves.
This argument is endeavoured to be surmounted by recurring to what is given to Catharine, as being the common measure or standard of equalization; and it is urged, that the testator has there pointed out what is to be deemed an equal share of his “ property,” in the sense in which he has subsequently used this expression; and such equal share is said to consist of the sum of four thousand dollars for .a marriage portion, a house and lot of the value of the house and lot devised to Catharine, and an equal proportion of the residue" according to the number of the children. If the language of the will sufficiently indicates such to be the intention, it is proper to adopt it as the criterion for an equalization. The words relied upon are these: “ to the intent that she may re- “ ceive as much as my other children, to all of whom I have [249]*24956 made large gifts upon their respective marriages.” The testator is here speaking of the four'-thousand dollars to his • daughter Catharine for a marriage portion; and it is evident, from the expressions which are used, that he had given similar portions’ or outfits to his son and married daughters, and, as Catharine was the only one then unmarried, he intended to be as liberal to her. So far, the manifest object of the bequest was to make her equal in this particular with his other children. But the testator had further objects in view, besides the mere equalization of his children’s marriage portions. He was about, to provide a dwelling-house for each of them. And it may fairly be inferred, that he considered the relative value of the same, and arranged the gifts in such a way (taking into account what each had received and would receive in the specific bequests under the will) as to cause them to fare alike as nearly as possible! Therefore, in fixing upon the sum in cash to Catharine, in addition to a house and lot, he contemplated the two bequests as forming together a portion of his estate and equal in amount with the benefits which his other children had or would receive. If this be so, the value of her house and lot and the.legacy form the standard by which we are to ascertain" the extent of “ an equal share.”
The houses, and lots devised to" the daughters were probably of different values; and if the one given to Catharine should prove to be -the greatest in worth, it would still afford no reason why it should not, in conjunction with the four thousand dollars, be considered the standard: because it might only show that she had previously received less from her father than the other children. No house, it is true, is devised to the son; but this again does not form an objection-.to the present mode of considering the subject: because it is tobe inferred from the will, indeed, the paroi evidence shows, how a house" and lot were conveyed by the father to the son. I see no insuperable objection to the admissibility of this fact from extrinsic evidence.
Having thus arranged the bequests of specific parts or portions of his property to his then children, by putting them upon an equal footing, he proceeded to dispose of the residue of his estate in equal parte among them, giving to each a fifth thereof,
[250] Thus it stood by the will as originally made.
When he came to republish the will and make á codicil, he undertook to provide for an after-born child or children and so as to put such latter child or children upon an equal footing with the rest. This is not left to conjecture. It is clearly expressed.
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The Vice-Chancellor.
From the importance of the questions which I am called upon to consider in this case, I have been induced to examine it with great care. The settle[248] ment of a large estate depends upon the construction to be given to the will; and the result involves the interests not only of the parties before the court but of those who may come after them.
By the codicil, or, as it may with propriety be called, the last clause of the will, (since it is an express confirmation and republication of the will and the whole is made to speak from that time as one instrument,) it is declared, that this after-born child shall have an equal share of the property with the other children, notwithstanding it may have been thereinbefore appropriated.
If in the previous part of the will the testator had simply given to his five children the whole of his estate, equally to be divided between them, or, to each an equal fifth part thereof, there would have been no difficulty under the latter clause or codicil: because, then their shares being equal and the complainant coming in for an equal share with the rest, the estate would have to be divided into six instead of five parts. The difficulty arises from the circumstance of the testator’s other children not taking equal shares or parts in the whole estate, but only in the residue, after the particular bequests and devises are satisfied. On this account, it is said, the complainant cannot have an equal share with the others, because they are all unequal among themselves.
This argument is endeavoured to be surmounted by recurring to what is given to Catharine, as being the common measure or standard of equalization; and it is urged, that the testator has there pointed out what is to be deemed an equal share of his “ property,” in the sense in which he has subsequently used this expression; and such equal share is said to consist of the sum of four thousand dollars for .a marriage portion, a house and lot of the value of the house and lot devised to Catharine, and an equal proportion of the residue" according to the number of the children. If the language of the will sufficiently indicates such to be the intention, it is proper to adopt it as the criterion for an equalization. The words relied upon are these: “ to the intent that she may re- “ ceive as much as my other children, to all of whom I have [249]*24956 made large gifts upon their respective marriages.” The testator is here speaking of the four'-thousand dollars to his • daughter Catharine for a marriage portion; and it is evident, from the expressions which are used, that he had given similar portions’ or outfits to his son and married daughters, and, as Catharine was the only one then unmarried, he intended to be as liberal to her. So far, the manifest object of the bequest was to make her equal in this particular with his other children. But the testator had further objects in view, besides the mere equalization of his children’s marriage portions. He was about, to provide a dwelling-house for each of them. And it may fairly be inferred, that he considered the relative value of the same, and arranged the gifts in such a way (taking into account what each had received and would receive in the specific bequests under the will) as to cause them to fare alike as nearly as possible! Therefore, in fixing upon the sum in cash to Catharine, in addition to a house and lot, he contemplated the two bequests as forming together a portion of his estate and equal in amount with the benefits which his other children had or would receive. If this be so, the value of her house and lot and the.legacy form the standard by which we are to ascertain" the extent of “ an equal share.”
The houses, and lots devised to" the daughters were probably of different values; and if the one given to Catharine should prove to be -the greatest in worth, it would still afford no reason why it should not, in conjunction with the four thousand dollars, be considered the standard: because it might only show that she had previously received less from her father than the other children. No house, it is true, is devised to the son; but this again does not form an objection-.to the present mode of considering the subject: because it is tobe inferred from the will, indeed, the paroi evidence shows, how a house" and lot were conveyed by the father to the son. I see no insuperable objection to the admissibility of this fact from extrinsic evidence.
Having thus arranged the bequests of specific parts or portions of his property to his then children, by putting them upon an equal footing, he proceeded to dispose of the residue of his estate in equal parte among them, giving to each a fifth thereof,
[250] Thus it stood by the will as originally made.
When he came to republish the will and make á codicil, he undertook to provide for an after-born child or children and so as to put such latter child or children upon an equal footing with the rest. This is not left to conjecture. It is clearly expressed.
The codicil, as it has been before remarked, forms a part of the will; by attraction, the latter is brought down to the former; and the whole is made to speak as one instrument from the time the codicil is made. What, then, is the language of the whole combined 1 I have shown what must have been deemed by the testator as an equal share among his children under the will; and I see nothing in the codicil to change this view. The after-born child is to have an equal share with the other children. This is plain and intelligible: but, an equal share of whatl The testator says, “ of my property.” Here .lies all the difficulty. The testator’s “ property,” it is insisted, was-only such as belonged to him at the time and -did not embrace the estate which he had actually parted with to his children before making the will; and hence it is urged in argument, that, in determining the question upon the words “ an equal share of “ my property,” regard can only be had to the property passing by the will, and also, since there is no equality in the shares of the other children, (except under the residuary clause) the complainant can only come in with them for an equal, share of this part of the estate. If, however, I am correct in the view before taken, as indicative of the testator’s intention, the first part of this proposition must fail. The testator -holds out in his will the idea of an equal share among his children; and founds it upon the previous advances made to some of them coupled with the future gifts. The phrase “of my property,” as used in the codicil, must be made to yield in order to effectuate the intention thus expressed. In Vauchamp v. Bell, Q.Mad. 346, Vice-Chancellor Leach says, “ If by giving to the words, which a “ testator has used, their literal and technical effect, inconsistent “ and absurd conclusions must necessarily follow, and if by “ understanding such words more largely, the whole will would “ be rendered rational and consistent, the court which departs [251]*25141 from the literal and technical sense of the words does not “ adopt conjecture as opposed to express intention, but has “ recourse to a sound rule for collecting what is the intention u which is really meant to be expressed.” Upon this principle, I see no difficulty in extending the meaning of .the words “ my “ property” so as to embrace the property which he had given as well as what he was about to bequeath and devise. And here I may remark, that, although the property in which the posthumous child is permitted to participate with the other children is only such as passes to them by the will, yet it was competent for the testator, in pointing out the mode by which her share or any other shares should be ascertained, to refer to the advances made to any of his children, and to direct such advances to be taken into view in ascertaining the shares of each individual,upon the same principle which governs in cases of intestacy under the statute of distributions.
If the foregoing be not the true construction to be given to the will and codicil, there is only one other which can, by any possibility, be resorted to, without doing violence to the language: namely, to consider a tenancy in common created between the complainant and the other children in all the property specifically devised to each of them. Should this construction be adopted and the literal import of the words of the codicil be adhered to, it would seem to follow that the complainant would take nothing less than a moiety of each specific bequest, which certainly could not have been intended by the testator; nor do I believe the will necessarily requires a construction which shall, create a tenancy in common as to one-sixth and thereby subject the other daughters to embarrassment. Yet, if there be not a residuum sufficient to make up the cdinplainant’s share,-I do not see how this consequence can be avoided.
As respects the other branch of the argument: that the complainant’s share is limited to the residue, and it is only in this she is entitled to an equal share, I cannot admit it to be well founded. Such does not appear to be the meaning or fair construction of the will. The clause which gives her the share in question has an express reference to all the testator’s pro[252] perty, notwithstanding it may have been before appropriated by the will, and of course comprises the parts devised in specie as well as the residue. If she is only to take a sixth part ef the residue, it is plain she will not have an equal share of the whole, which seems to have been a favorite object with the testator, however difficult he may have rendered its accomplishment by the manner in which he has expressed his intention.
Upon the whole, I am'of opinion this posthumous child is entitled to more than an equal share in the residuary estate ; and, I must decree, that the sum of four thousand dollars, and a further amount equal to the value of the house and lot devised-to his daughter Catharine, are to bo set apart and -appropriated, out of the moneys or assets in the hands of the executors, to the benefit of and as belonging to the complainant and to go towards equalizing her share. She is also to'come in for a sixth part of the residue with the other children.
The next question, no less important than the preceding, is, whether the 'complainant’s share is subject to the same trusts and limitations as are declared by the will in respect to the shares of the other daughters 1 It is obviously necessary "to settle this point now. The executors Will then know how to act in regard to the investment or payment over of "the funds belonging to the complainant. -If she takes upon the same terms as the other daughters, the four thousand dollars must remain in the hands of the executors until the day of her marriage, arid, in the mean time, only the interest can be applied to her use. Adopting the same mode of argument with respect to the sum to be appropriated in the place of a dwelling-house, she can only have" a life estate in this, subject to the special limitations over; while her. share of. the residue must be taken and held by the executors upon the trusts prescribed in relation to the other daughters’ shares. If, on the other-hand, the devise to her is absolute and without any special limitations or trusts, then the executors have only to pay or deliver over her share under the directions of the court; and be discharged from all' further responsibility concerning this part of the estate. In examining the question, I have met with [253] tip case having an immediate bearing upon it. A few cases have been cited to show, how, where the words of a bequest ... , „ . . . . : . are positive, they are not to be coníroliedjjy micrences arising from other parts of the will; and it is insisted, that where the testator has imposed no restrictions or special limitations, none can be raised by implication." As a general rule, an"express estate is not to bo varied by implication: 2 Preston on Estates, 529. But the question still is, whether the testator has not imposed restrictions upon and attached special limitations to the bequest in favor of after-born children by the manner of the gift itself and by a necessary construction of the codicil. After making provision for the elder children, as is mentioned in the will, giving his son a share, in fee, and each daughter a life estate merely, accompanied by a trust as to a part, he provides for after-born children, by saying: “such child or children “ shall have an equal share of my property with my other “ children’"—evidently intending to put them upon the same footing. To what then do the words, “ an equal share of my “ property” apply, as regards the question now under consideration 1 It appears to me they apply to the estate or interest which the party is to take in the subject of the devise, as well as to the thing devised, whether it be money, chattels or lands. There cannot be an equal share in- the property to be divided among several persons, unless reference is had to the "duration or time for which the right of .enjoyment is to continue, which forms the quantity of the estate, as "well as to the manner in which the right to such enjoyment is to be exercised, wherein consists its quality: 1 Prest, on Est. 21, 22. For it is certain, if one child takes an estate for life in a parcel of land or merely the interest or income out of personal -property, without-the right to control or dispose of the capital, and another child takes a similar parcel of land in fee and, instead of being limited "to the income of personal property, has the whole of the capital or principal sum at command, there is no equality between them in respect "to such property. When it is looked at in this point of view, it does not seem to admit of a doubt that the complainant is to be put upon the same basis, as well in regard to the quantity jfid. quality of estate in the property [254] devised, to her, as id regard to the thing devised. Hence it follows, shé is to take upon the like terms and under the same limitations and restrictions as the other children. But the other children do not all take alike: the son is entitled to his share in fee and the daughters have a very different interest or estate in their shares; and it is therefore said, the codicil may as well refer to the limitations connected with the gift of the son’s share as of the daughters. I think, however, considering the words of the codicil, that the after-born children were to come in with his other children and take a share of the property, notwithstanding it was; in the will, before appropriated; for the intention is sufficiently manifest, that if a daughter, she should take as the other daughters, and if a son, in like manner as the son named in the will. The uncertainty, 'at the- time, of the sex of such after-born child can make no difference. It affords to my mind no reason why the testator may not be considered as intending to keep up the same distinction which he had already made in this respect between his son’s and his daughters’ shares; and that by the codicil, as well as by the will, he meant to give merely life estates to daughters, to preserve those estates for their separate use; and also give them and their children the benefit of survivorship as between themselves. I see no-way, consistently with the whole scope and object of the will, by which the complainant can take, except upon those .terms.. If it be not so, there is a want of reciprocity under the special provisions of the will. In case of the death of the other daughters without issue living at the time of their decease, the complainant would clearly be entitled to a share of the property devised to them:' and both reason and common sense dictate the propriety of giving them a chance of getting an equal portion of her share. I do not think this part of the case depends so much upon the doctrine of. implication of cross-remainders or of cross-executory limitations as laid down in some of the books (see Jarman’s ed. of Powell on Devises, vol. 2, chap. 31, 32j p. 604 and 624,) as upon the force of the words used in the codicil, when taken in connection with the context of the will.
The present question is not upon the executory trusts and limitations contained in the will. It i¬, as to what may be [255] their legal effect or the rights hereafter to grow out' of them inter se: but whether the complainant is to take subject to , ..... , , , . . those trusts and limitations, whatever may be their operation. It is, therefore, a question of construction and not one of implication.
I am of opinion she must take upon the same terms and subject to the same trusts and limitations as the other daughters ; and that the executors are trustees for her as well as for them.
The court then went into an enquiry in order to ascertain whether the son of the testator was to b'e considered as a partner with the father in matters of business, but as this part of the case did not involve any points of general interest, the remainder of the opinion is not given.