Cook, J.,
delivered the opinion of the court.
Appellant filed a bill in the chancery court of Lowndes county asking a construction of her father’s will. The appellee, Mrs. Fannie M. Humphries, was made executrix of the will, and by the terms of the will she was devised a life interest in the entire estate of the testator, her husband, “subject to the limitations hereinafter fixed.” Appellant was the daughter of the testator by a former marriage, was married, and residing in the state of Maryland at the time of testator’s death. Appellant, who was complainant below, charged in ber bill that item fourth of her father’s will was mandatory, and should be construed to mean that she was entitled to a legacy of three hundred dollars per annum, dependent alone upon her becoming “dependent and in need.” The bill charges that “her condition in life for years has been one of want, poverty, and dependence, coupled with an incurable disease and intense physical suffering; that since the death of her father she has been continuously in need of money, and that she is now financially embarrassed;” and further, that she has never received one dollar from her father’s estate. She further says that her husband had some years ago suffered an almost fatal injury, and in consequence he is unable to support her. From the allegations of the bill it appears that the estate was very valuable, consisting of fertile and valuable plantations, money, and handsome city property. To this bill a demurrer was interposed, assigning one ground why the executrix should not be required to answer, viz.: “There is no equity on the face of the bill.' Said bill does not charge any facts entitling complainant-to relief.”
[839]*839Item fourth of the will reads as follows: ‘ ‘ Should my -daughter, Mrs. Mary Patterson, become dependent and in need, I charge my wife out of the body of my estate to -extend her such aid as the income, in justice to herself and the other dependent members of my family, enables her to do, but not to exceed three hundred dollars ($300.00) per annum, payable in such sums and at such times as may be most convenient, but said payments to «ease when the necessity no longer exists.” Of course, the allegations of the bill must be taken and considered as literally true, and, when so considered, do the facts stated and admitted entitle complainant to any relief?
The complainant was not a member of the father’s household at the time of his death, or at the time the will was written. She, having married, was residing in Maryland with her husband, and, so far as the allegations of the bill disclose the facts,- she was in good health and living in comfort when the will was written. As she sues by next friend, we are permitted to infer that she was a minor at the time the bill was filed, although the hill does not so state. The executrix of the will, and -owner for life of the entire estate, was not the mother -of complainant, but had a family of her own. The family mansion — for mansion it was, according to the bill— is occupied by the executrix and her family, and they are -enjoying the income and usufruct of a valuable and pro-ductive estate. On the other'hand, the only and beloved daughter of her father, the pledge of another and earlier love, is far away in Maryland, incumbered with the care .and sorrow of a crippled husband, herself suffering from an incurable disease, and her body racked by the pangs -of physical pain. The gaunt wolf of poverty stands at -the door of this young woman, the daughter of a distinguished lawyer, who, in his last will and testament ■“charged” his executrix “out of the body of my estate” to extend to her a helping hand whenever misfortune, poverty, and dependence should overtake her. Has the [840]*840time arrived when aid is needed, when even the grudging hand of stinted charity would recognize a deserving case?
Certainly it was not, and is not, contended that the conditions provided for by the will are not present. Then why should not a court of conscience require an answer to this bill? The reasons are given by the brief and argument of counsel for appellee, and may be reduced to one theory, i. e., the will leaves to the executrix the sole discretion of determining when the income of the-estate runs beyond the needs of herself and the younger members of the family. Upon her judgment of the needs-of herself and family the needy and afflicted daughter-must depend, and when the executrix decides that question adversely to the appellant, it was the intention of the testator that no court should have the power to review her decision, no matter how unjust and how unwise it might be. In a nutshell, although it is admitted that, this afflicted daughter is in dire need and suffering all the ills which follow grinding poverty, coupled with physical suffering, and although it is admitted that the estate is large and valuable, the door is closed, and the courts cannot enter, because, by the will, the executrix is clothed with the power to render a decree from which there is no appeal this side of Heaven.
If the position of counsel is correct, if their construction is the proper construction of the will, their conclusions cannot be shaken. The intention of the testator is the law which must govern the courts, and this intention must be gathered from the words employed by the testator in writing his will. The courts cannot make a. will. That power rests with the testator to direct and control his estate, so long as he does not undertake to accomplish sometliing forbidden by the laws and public-policy of the state. There can be no difference about the canons of construction. The intent of the testator as-expressed in the will must be the sole guide of the courts.
[841]*841We have quoted item fourth (and now direct the reporter to print the entire will in his report of the case), •and we will now refer to the last clause of item 2, reading as follows, viz.: “Should the income of my’estate permit, of which I constitute my executrix the judge, I -desire aid extended any member of my family who may be overtaken by adversity.” Here the testator expressed a desire that any member of his family overtaken by adversity should be aided out of the income; but he also expressly confers upon his wife the power to decide when the income will permit this desire to be carried into effect. In this item he was providing for any member' of his family overtaken by adversity, and he uses the words “I desire,” and goes still further and says to his executrix, You shall be the judge of whether the income will permit this be done.
He had just provided for the younger members, and this, of course, referred to the others. But did it refer to complainant in this bill?. We think, not. The will clearly recognizes as the family those members who were at home in Mississippi, and, when testator speaks of “ my family,” it is evident that he had.in mind the children at home; and if adversity should overtake any of that group, he expresses a desire that aid be extended to them out of the income of the estate, leaving to his executrix to decide whether or not the income would permit this to be done.
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Cook, J.,
delivered the opinion of the court.
Appellant filed a bill in the chancery court of Lowndes county asking a construction of her father’s will. The appellee, Mrs. Fannie M. Humphries, was made executrix of the will, and by the terms of the will she was devised a life interest in the entire estate of the testator, her husband, “subject to the limitations hereinafter fixed.” Appellant was the daughter of the testator by a former marriage, was married, and residing in the state of Maryland at the time of testator’s death. Appellant, who was complainant below, charged in ber bill that item fourth of her father’s will was mandatory, and should be construed to mean that she was entitled to a legacy of three hundred dollars per annum, dependent alone upon her becoming “dependent and in need.” The bill charges that “her condition in life for years has been one of want, poverty, and dependence, coupled with an incurable disease and intense physical suffering; that since the death of her father she has been continuously in need of money, and that she is now financially embarrassed;” and further, that she has never received one dollar from her father’s estate. She further says that her husband had some years ago suffered an almost fatal injury, and in consequence he is unable to support her. From the allegations of the bill it appears that the estate was very valuable, consisting of fertile and valuable plantations, money, and handsome city property. To this bill a demurrer was interposed, assigning one ground why the executrix should not be required to answer, viz.: “There is no equity on the face of the bill.' Said bill does not charge any facts entitling complainant-to relief.”
[839]*839Item fourth of the will reads as follows: ‘ ‘ Should my -daughter, Mrs. Mary Patterson, become dependent and in need, I charge my wife out of the body of my estate to -extend her such aid as the income, in justice to herself and the other dependent members of my family, enables her to do, but not to exceed three hundred dollars ($300.00) per annum, payable in such sums and at such times as may be most convenient, but said payments to «ease when the necessity no longer exists.” Of course, the allegations of the bill must be taken and considered as literally true, and, when so considered, do the facts stated and admitted entitle complainant to any relief?
The complainant was not a member of the father’s household at the time of his death, or at the time the will was written. She, having married, was residing in Maryland with her husband, and, so far as the allegations of the bill disclose the facts,- she was in good health and living in comfort when the will was written. As she sues by next friend, we are permitted to infer that she was a minor at the time the bill was filed, although the hill does not so state. The executrix of the will, and -owner for life of the entire estate, was not the mother -of complainant, but had a family of her own. The family mansion — for mansion it was, according to the bill— is occupied by the executrix and her family, and they are -enjoying the income and usufruct of a valuable and pro-ductive estate. On the other'hand, the only and beloved daughter of her father, the pledge of another and earlier love, is far away in Maryland, incumbered with the care .and sorrow of a crippled husband, herself suffering from an incurable disease, and her body racked by the pangs -of physical pain. The gaunt wolf of poverty stands at -the door of this young woman, the daughter of a distinguished lawyer, who, in his last will and testament ■“charged” his executrix “out of the body of my estate” to extend to her a helping hand whenever misfortune, poverty, and dependence should overtake her. Has the [840]*840time arrived when aid is needed, when even the grudging hand of stinted charity would recognize a deserving case?
Certainly it was not, and is not, contended that the conditions provided for by the will are not present. Then why should not a court of conscience require an answer to this bill? The reasons are given by the brief and argument of counsel for appellee, and may be reduced to one theory, i. e., the will leaves to the executrix the sole discretion of determining when the income of the-estate runs beyond the needs of herself and the younger members of the family. Upon her judgment of the needs-of herself and family the needy and afflicted daughter-must depend, and when the executrix decides that question adversely to the appellant, it was the intention of the testator that no court should have the power to review her decision, no matter how unjust and how unwise it might be. In a nutshell, although it is admitted that, this afflicted daughter is in dire need and suffering all the ills which follow grinding poverty, coupled with physical suffering, and although it is admitted that the estate is large and valuable, the door is closed, and the courts cannot enter, because, by the will, the executrix is clothed with the power to render a decree from which there is no appeal this side of Heaven.
If the position of counsel is correct, if their construction is the proper construction of the will, their conclusions cannot be shaken. The intention of the testator is the law which must govern the courts, and this intention must be gathered from the words employed by the testator in writing his will. The courts cannot make a. will. That power rests with the testator to direct and control his estate, so long as he does not undertake to accomplish sometliing forbidden by the laws and public-policy of the state. There can be no difference about the canons of construction. The intent of the testator as-expressed in the will must be the sole guide of the courts.
[841]*841We have quoted item fourth (and now direct the reporter to print the entire will in his report of the case), •and we will now refer to the last clause of item 2, reading as follows, viz.: “Should the income of my’estate permit, of which I constitute my executrix the judge, I -desire aid extended any member of my family who may be overtaken by adversity.” Here the testator expressed a desire that any member of his family overtaken by adversity should be aided out of the income; but he also expressly confers upon his wife the power to decide when the income will permit this desire to be carried into effect. In this item he was providing for any member' of his family overtaken by adversity, and he uses the words “I desire,” and goes still further and says to his executrix, You shall be the judge of whether the income will permit this be done.
He had just provided for the younger members, and this, of course, referred to the others. But did it refer to complainant in this bill?. We think, not. The will clearly recognizes as the family those members who were at home in Mississippi, and, when testator speaks of “ my family,” it is evident that he had.in mind the children at home; and if adversity should overtake any of that group, he expresses a desire that aid be extended to them out of the income of the estate, leaving to his executrix to decide whether or not the income would permit this to be done. Adversity is opposed to well-being or prosperity, and it has been said, “Adversity is not without comforts and hopes.” So this lawyer, when he wrote his last will and testament, choosing his words with full knowledge of their shades of meaning, and thinking some one of his family might not prosper, but might lag behind in the race ’ of life,, he expressed a desire that his wife would give a lift to any member, of the family so overtaken by adversity; • but she was to be the judge when the income would permit her to do so. He was then anticipating that some one [842]*842of the family might be unlucky and -fail to keep his head above the water. Undoubtedly the words employed in item 2 were precatory, and the discretion was given to-the executrix to extend aid tó the class mentioned, if she deemed it wise to do so.
Plis daughter, Mrs. Patterson, was put in a separate class, and item 4 refers to her alone. She was married, and, besides, while it was only necessary to merely suggest to a mother his wish that her children should be given a lift whenever they should meet with adversity, he no doubt advisedly used a stronger word when, he penned item 4, providing for the possible need and dependence of his daughter by another marriage. He-had the deepest affection and the most abiding confidence in his wife, but he also knew that he whs then providing for one who could not claim the same affection from his executrix that nature implanted in her heart, for her own offspring, or for the members of the family who still hovered about the roof-tree. It will be noted that he fixed the conditions when aid should be extended to Mrs. Patterson, and he did not confer upon the executrix the authority to decide when the income would permit a sale of a part of- the estate to realize money to meet this charge. This is the significant and controlling 'feature of this charge upon his estate, and is easily differentiated from the precatory words employed in item 2. This item clearly fixes a charge upon the body of the estate for the purpose of relieving Mrs. Patterson in her present need and distress. The limit of the money to be appropriated to that purpose is fixed at three hundred dollars per annum, and the amount to be given, limited as it is by this maximum, is not left to the judgment of the executrix; but the chancellor must be guided by the amount of the income and the reasonable needs of the other dependent members of the family in fixing the amount to be paid appellant.
[843]*843The executrix should be required to pay to Mrs. Patterson such amount as will, in the judgment of the chancellor, fairly ameliorate her troubles, even though the money will have to be raised out of the body of the estate. Such was the mandate of the testator, and his will is the law of the case. We. have gathered from the will and the allegations of the bill that Mrs. Patterson is the sole living issue of testator’s first marriage; but this makes no real difference, as the language of item 1 must be construed as mandatory.
Reversed and remanded with leave to answer within sixty days after the filing of the mandate in the chancery court of Lowndes county.
Reversed and remanded.