Mr. Justice Shope
delivered the opinion of the Court:
Defendants in error, in argument, question the jurisdiction of this court, and contend that the amount in controversy here is less than $1000; that although the fund in the hands of the trustee was $2214.50, plaintiff in error only questions the application, at most, of $951.67 of such fund. The decree of the circuit court disposed of the whole of the fund in the trustee’s hands, and the appeal to the Appellate Court brought before that court for review such decree, and when the Appellate Court affirmed the decree, and the judgment of affirmance is brought here by writ of error, the amount involved here in •controversy is the amount in the trustee’s hands subject to disposition under the decree. The amount disposed of by the decree exceeding $1000, the jurisdiction of this court is ample.
The question here presented involves, first, the jurisdiction •of a court of chancery, in case of trust, to construe the will •creating the trust; and second, the power of such court, in case of express trust, to break in upon the principal of the fund for the maintenance of the cestui que trust.
And first—The equitable jurisdiction to construe wills is an incident of the general jurisdiction over trusts. (Pomeroy’s Eq. sec. 1156.) It is by reason of the jurisdiction of courts of chancery over trusts, that courts having equitable powers, ■as an incident to that jurisdiction, take cognizance and pass upon the interpretation of wills. (Chipman v. Montgomery, 63 N. Y. 221.) It is when the court is moved on behalf of an executor, trustee or cestui que trust, and to insure a correct administration of the power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts. Bailey v. Briggs, 56 N. Y. 407. See Strubher v. Belsey, 79 Ill. 307; Whitman v. Fisher, 74 id. 147; Pomeroy’s Eq. secs. 351, 352.
But aside from this general doctrine, within which the case ■at bar clearly falls, the equitable jurisdiction of the court was •expressly invoked by the terms of the will itself, so that, upon the filing of the bill, with the will exhibited, the appointment, by the court, of a trustee, the giving of the bond, and reducing of the trust fund to possession, under the direction of the court, by the trustee, and his subsequent reports to the court, the court acquired ample jurisdiction of the persons and the subject matter,—the cestui que trust becoming the ward of the court,—and, incidentally, jurisdiction to construe the will creating the trust.
Secondly—The principles of law governing this case, hyanalogy, are those applicable to infants. Although the beneficiary was, no doubt, above the age of eighteen years, she was,, by reason of her feeble-minded condition, to all intents an infant. The father, during his lifetime,- was liable for her support, and if, by his will, he gave this share of his estate to her absolutely, although under the protection of a trust, there-can be no question but that the fund itself might be used,, under the direction of the court, for her maintenance and support ; and -this would be so, although the will contained no-direction for maintenance, and although there was a direction to accumulate income. (Perry on Trusts, sec. 615.) The-general rule undoubtedly is, that the trustee, on his own authority, can not break in upon the capital of the trust fund for maintenance,—and this rule is for the benefit of the infant» But that the court, in a proper ease, possesses such power, is clearly shown by the authorities. Perry on Trusts, secs. 616-618, and cases cited. See, also, Ex parte Hayes, 3 DeG. & S. 485; Walsh v. Walsh, 1 Drewry’s Ch. 64.
The same principle has been applied by this court in the case-of a married woman. In Curtiss v. Brown, 29 Ill. 201, it was said: “Exigencies often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of the court of chancery must be invoked to grant relief imperatively required ; and in such cases the court must, as far as may be,, occupy the place of the party creating the trust, and do with-the fund what he would have dictated had he anticipated the emergency. In Harvey v. Harvey, 2 P. Wms. 21, the court said it ‘would do what, in common presumption,-the father, if living, would,—nay, ought,—to have done, which was, to provide necessaries for his children.’ Trust estates are particularly under the charge and within the jurisdiction of the court of chancery. The most familiar instances in which the court interferes and sets aside some of the express terms of the deed creating the trust, is in the removal of the trustee for misconduct, and the appointment of another in his stead. But this is as much a violation of the terms of the settlement as is a decree to sell the estate and re-invest it, or to apply the proceeds to the preservation of the estate, or in the relief of the cestui que trust from pinching want. From very necessity a power must, exist somewhere in the community to grant relief in such cases of absolute necessity, and under our system of jurisprudence that power is vested in the court of chancery.” So, too, iu the case of infants, by way of anticipation of the time of payment, it was said, in Rhoads v. Rhoads, 43 Ill. 239: “We have, however, no doubt of the power of a court of chancery, on a proper case being made out, to order the trustee to anticipate the time of payment, under the will, so far as it may be shown to be necessary for the maintenance of the devisees, but its power should extend ho further.” And in Voris v. Sloan, 68 Ill. 588, where, unless the court interposed, the trust property would be lost, and after citing Curtiss v. Brown, the general principle was announced, that in cases of urgent necessity, the trust might be broken in upon, to the perversion and change of the conditions imposed by the trust.
But counsel for plaintiff in error urge, that, here, there is a. limitation over, on the termination of a life estate. But if this be conceded, and also that the general rule is, in such case, that no part of the principal of the fund can be expended for maintenance, still the authorities are, that if there is a clear intention, to be gathered from the whole will, that the child is to have a maintenance, the court will order it, although there is a gift over. Perry on Trusts, sec. 619; Lambert v. Parker, Cooper, (Temp. Eldon,) 143. And this brings us to a consideration of the will.
The manifest intention of the testator, gathered from the will itself, was, to bestow the residue of his estate upon his four children, “share and share alike,” and it can not be doubted, that had Lavina been capable of managing her share of the estate, as were the other three children, the trust in her favor would not have been declared. The trust was not declared for the benefit of the children of sound mind, but for the protection of a helpless, idiotic child. Lavina’s mental incapacity was known to the testator; and while he may have supposed the interest arising from one-sixth of his estate would provide her a support, we can not doubt but that the idea uppermost in the testator’s mind was, through the instrumentality of a trust, to secure to his unfortunate and feeble-minded daughter, to the extent of an equal share in his estate with her brother and sisters, that maintenance and support which she was incapable of affording herself.
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Mr. Justice Shope
delivered the opinion of the Court:
Defendants in error, in argument, question the jurisdiction of this court, and contend that the amount in controversy here is less than $1000; that although the fund in the hands of the trustee was $2214.50, plaintiff in error only questions the application, at most, of $951.67 of such fund. The decree of the circuit court disposed of the whole of the fund in the trustee’s hands, and the appeal to the Appellate Court brought before that court for review such decree, and when the Appellate Court affirmed the decree, and the judgment of affirmance is brought here by writ of error, the amount involved here in •controversy is the amount in the trustee’s hands subject to disposition under the decree. The amount disposed of by the decree exceeding $1000, the jurisdiction of this court is ample.
The question here presented involves, first, the jurisdiction •of a court of chancery, in case of trust, to construe the will •creating the trust; and second, the power of such court, in case of express trust, to break in upon the principal of the fund for the maintenance of the cestui que trust.
And first—The equitable jurisdiction to construe wills is an incident of the general jurisdiction over trusts. (Pomeroy’s Eq. sec. 1156.) It is by reason of the jurisdiction of courts of chancery over trusts, that courts having equitable powers, ■as an incident to that jurisdiction, take cognizance and pass upon the interpretation of wills. (Chipman v. Montgomery, 63 N. Y. 221.) It is when the court is moved on behalf of an executor, trustee or cestui que trust, and to insure a correct administration of the power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts. Bailey v. Briggs, 56 N. Y. 407. See Strubher v. Belsey, 79 Ill. 307; Whitman v. Fisher, 74 id. 147; Pomeroy’s Eq. secs. 351, 352.
But aside from this general doctrine, within which the case ■at bar clearly falls, the equitable jurisdiction of the court was •expressly invoked by the terms of the will itself, so that, upon the filing of the bill, with the will exhibited, the appointment, by the court, of a trustee, the giving of the bond, and reducing of the trust fund to possession, under the direction of the court, by the trustee, and his subsequent reports to the court, the court acquired ample jurisdiction of the persons and the subject matter,—the cestui que trust becoming the ward of the court,—and, incidentally, jurisdiction to construe the will creating the trust.
Secondly—The principles of law governing this case, hyanalogy, are those applicable to infants. Although the beneficiary was, no doubt, above the age of eighteen years, she was,, by reason of her feeble-minded condition, to all intents an infant. The father, during his lifetime,- was liable for her support, and if, by his will, he gave this share of his estate to her absolutely, although under the protection of a trust, there-can be no question but that the fund itself might be used,, under the direction of the court, for her maintenance and support ; and -this would be so, although the will contained no-direction for maintenance, and although there was a direction to accumulate income. (Perry on Trusts, sec. 615.) The-general rule undoubtedly is, that the trustee, on his own authority, can not break in upon the capital of the trust fund for maintenance,—and this rule is for the benefit of the infant» But that the court, in a proper ease, possesses such power, is clearly shown by the authorities. Perry on Trusts, secs. 616-618, and cases cited. See, also, Ex parte Hayes, 3 DeG. & S. 485; Walsh v. Walsh, 1 Drewry’s Ch. 64.
The same principle has been applied by this court in the case-of a married woman. In Curtiss v. Brown, 29 Ill. 201, it was said: “Exigencies often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, where the aid of the court of chancery must be invoked to grant relief imperatively required ; and in such cases the court must, as far as may be,, occupy the place of the party creating the trust, and do with-the fund what he would have dictated had he anticipated the emergency. In Harvey v. Harvey, 2 P. Wms. 21, the court said it ‘would do what, in common presumption,-the father, if living, would,—nay, ought,—to have done, which was, to provide necessaries for his children.’ Trust estates are particularly under the charge and within the jurisdiction of the court of chancery. The most familiar instances in which the court interferes and sets aside some of the express terms of the deed creating the trust, is in the removal of the trustee for misconduct, and the appointment of another in his stead. But this is as much a violation of the terms of the settlement as is a decree to sell the estate and re-invest it, or to apply the proceeds to the preservation of the estate, or in the relief of the cestui que trust from pinching want. From very necessity a power must, exist somewhere in the community to grant relief in such cases of absolute necessity, and under our system of jurisprudence that power is vested in the court of chancery.” So, too, iu the case of infants, by way of anticipation of the time of payment, it was said, in Rhoads v. Rhoads, 43 Ill. 239: “We have, however, no doubt of the power of a court of chancery, on a proper case being made out, to order the trustee to anticipate the time of payment, under the will, so far as it may be shown to be necessary for the maintenance of the devisees, but its power should extend ho further.” And in Voris v. Sloan, 68 Ill. 588, where, unless the court interposed, the trust property would be lost, and after citing Curtiss v. Brown, the general principle was announced, that in cases of urgent necessity, the trust might be broken in upon, to the perversion and change of the conditions imposed by the trust.
But counsel for plaintiff in error urge, that, here, there is a. limitation over, on the termination of a life estate. But if this be conceded, and also that the general rule is, in such case, that no part of the principal of the fund can be expended for maintenance, still the authorities are, that if there is a clear intention, to be gathered from the whole will, that the child is to have a maintenance, the court will order it, although there is a gift over. Perry on Trusts, sec. 619; Lambert v. Parker, Cooper, (Temp. Eldon,) 143. And this brings us to a consideration of the will.
The manifest intention of the testator, gathered from the will itself, was, to bestow the residue of his estate upon his four children, “share and share alike,” and it can not be doubted, that had Lavina been capable of managing her share of the estate, as were the other three children, the trust in her favor would not have been declared. The trust was not declared for the benefit of the children of sound mind, but for the protection of a helpless, idiotic child. Lavina’s mental incapacity was known to the testator; and while he may have supposed the interest arising from one-sixth of his estate would provide her a support, we can not doubt but that the idea uppermost in the testator’s mind was, through the instrumentality of a trust, to secure to his unfortunate and feeble-minded daughter, to the extent of an equal share in his estate with her brother and sisters, that maintenance and support which she was incapable of affording herself. Nothing is observed in the will tending in the slightest degree to show an intent to discriminate against Lavina—to cut her share of the estate down below that taken and enjoyed by her'brother and sisters. The one central idea appears to have been to place her share in secure hands, to be managed under the direction of an enlightened court, and thereby guard her against her own weakness, and the avarice and cupidity of others, and to insure her a support as long as she might live. The direction, that upon her death the estate bequeathed to her should go in equal parts to her brother and sisters, we do not regard as controlling, but as subordinate to her right of maintenance, so that at her death they would take what might remain. Had this direction been wholly omitted, Lavina being incapable of making a testamentary devise, whatever of her estate remained at her death would, under the statute, have passed to her heirs; and but for the share the mother, if living, would have taken, Lavina’s brother and sisters were her heirs.
If wé have rightly discerned the testator’s intention, the facts of this case bring it clearly within the principles of the authorities cited. The claims allowed and ordered paid, were for the necessary support and maintenance of the cestui que trust. The funeral expenses were necessary expenses.
But if the law had been otherwise than as above announced, the plaintiff in error and his two sisters were, under the statute, (Starr & Curtis’ Stat. 1732,) liable for the support of their sister Lavina, if she was a poor person, and unable to earn a livelihood in consequence of bodily or mental infirmity. If we accept the view of plaintiff in error in this case, his sister was such poor person; and as the court had all the parties before it, and also control of the fund, we see no serious objection in the court acting upon the report of the trustee, to avoid a circuity of action, and passing upon and allowing such claims as were for the necessary maintenance of Lavina, and of ordering them paid out of the fund under the control of the court.
Perceiving no error in the record, the judgment of the Appellate Court is affirmed.
Judgment affirmed.