Ghambers, J.,
delivered the opinion of this court.
The argument in this case has proceeded chiefly on the ground, that the decree heretofore made by this court was of a conclusive character, not only in regard to the general question of complainant’s right to recover, but as to the details and amount to be allowed him, and the particular rules by which the auditor was to be controled. In short, that the defendants [388] in the bill were thereby precluded from making any defence Upon the merits. It is obvious, that if such a construction be given to our former decree, as to deprive the defendants of the privilege of showing, that the requisitions of the will have been in whole or in part complied'with, and to enforce a contribution for the complainant’s support, when they have in fact previously made' that contribution, injustice must be done.
As this court would most unwillingly occasion such injustice, so will it exert every legitimate authority to prevent its infliction. We are quite willing to admit, that the, language Of our former decree might and should have been more carefully considered, but we think a fair interpretation of it will not preclude the just claims of the defendants to make a full defence upon the merits. The bill Was filed upon the hypothesis, that by the legal effect of the will, John Tolson and John Tolson's family, were entitled to a maintenance out of the estate of the testator. The defendants assumed the theory, that the bequest was altogether void, so that it conveyed no interest to John Tolson or to his family. To avoid the labor, time and expense of ascertaining whether the devisees of the testator bad complied with the terms of the bequest, as construed by the complainant, an agreement-was filed to the effect, that for this purpose—that is to try the rights of complainant in the most summary way—a demurrer to the bill should be filed. This brought the general question of the effect of the bequest before the late chancellor, who decreed, that the bequest was void for uncertainty. Upon an appeal to this court, that decree was reversed, this court being of opinion, that so far as a maintenance to John was directed by the will, it was sufficiently certain, but that as to the family, it was void. The object of the agreement was then gratified, and the parties became informed of their rights under the will. It was not competent in this court to allow the defendants to withdraw their demurrer and answer over, although provision for doing so in the court below might have been made in the decree. The decree given by this court was, in its terms, calculated to afford the relief to which the allegations of the bill entitled the com[389] plainant, those allegations heing in the posture of the case as it then stood admitted by the demurrer, and although it would have been more regular to have ordered the ease to be returned to the chancery court, with the privilege to the defendants to answer to the merits, if they chose to avail themselves of their privilege to do so, yet it does not follow, that such right was taken awaj? by any thing in our decree. Upon the question, whether that right might be exercised after the case was again in the possession of the chancellor, the decree is silent, and for that reason, is within the case of Duvall and The Farmers Bank, 9 G. & J., 32, in which it was held, “that upon a second appeal in the same case, this court may look into and decide questions involved in the record previously brought up, when a decision of those questions was not made upon the former appeal.” We think, therefore, that the chancellor was in error by the order of 1st May, 1839, rejecting the petition which the defendants preferred, asking leave to answer fully upon the merits; and also by the order of 9th July, 1842, ruling tiie exceptions to the answer good, on the ground that the defendants were not at liberty to answer to the merits of the case stated in the original bill.
The decree of this court was express on the point, that a maintenance to John Tolson, as an individual, was secured by the will, and the reference to the “condition and habits of life” of John Tolson and bis late father, was intended to have allusion to the extent of the estate and to their mode of living, so far as its expensiveness or economy were concerned, and the practice and habits, in this respect, of the persons with whom they associated. It will readily occur, that where a man of very large fortune, whose habits of life have been luxurious, and who has indulged his children in the most expensive style of dress, and other items of habitual gratification, provides for the maintenance of a child, whose misfortunes or infirmities of character make him unfit to be trusted with the possession of a distributive portion of his estate, a larger annual expenditure would be proper and, indeed, necessary to his comfort, than in a case differing in all respects, so far as wealth, [390] and luxurious or expensive habits of living were concerned. A man may be comfortable, with plain fare and plain dress, who has always been accustomed to them, while to another, who has always indulged in a contrary practice, and whose associations are with those of similar habits of indulgence, it would be anything but comfort to be reduced to the same kind of economy. The terms were employed in the decree in the sense here expressed, and not as denoting his condition relatively to his wife and children, and servants; and the extent or value of the estate of the testator, was considered a proper element in the estimate of a reasonable allowance, as it cannot be inferred, that with a family of seven other sons and two daughters, it was his design to give the whole, or a very large proportion, of the profits of his entire estate to the maintenance of one son, to whom he did not deem it prudent to devise any portion of his estate.
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Ghambers, J.,
delivered the opinion of this court.
The argument in this case has proceeded chiefly on the ground, that the decree heretofore made by this court was of a conclusive character, not only in regard to the general question of complainant’s right to recover, but as to the details and amount to be allowed him, and the particular rules by which the auditor was to be controled. In short, that the defendants [388] in the bill were thereby precluded from making any defence Upon the merits. It is obvious, that if such a construction be given to our former decree, as to deprive the defendants of the privilege of showing, that the requisitions of the will have been in whole or in part complied'with, and to enforce a contribution for the complainant’s support, when they have in fact previously made' that contribution, injustice must be done.
As this court would most unwillingly occasion such injustice, so will it exert every legitimate authority to prevent its infliction. We are quite willing to admit, that the, language Of our former decree might and should have been more carefully considered, but we think a fair interpretation of it will not preclude the just claims of the defendants to make a full defence upon the merits. The bill Was filed upon the hypothesis, that by the legal effect of the will, John Tolson and John Tolson's family, were entitled to a maintenance out of the estate of the testator. The defendants assumed the theory, that the bequest was altogether void, so that it conveyed no interest to John Tolson or to his family. To avoid the labor, time and expense of ascertaining whether the devisees of the testator bad complied with the terms of the bequest, as construed by the complainant, an agreement-was filed to the effect, that for this purpose—that is to try the rights of complainant in the most summary way—a demurrer to the bill should be filed. This brought the general question of the effect of the bequest before the late chancellor, who decreed, that the bequest was void for uncertainty. Upon an appeal to this court, that decree was reversed, this court being of opinion, that so far as a maintenance to John was directed by the will, it was sufficiently certain, but that as to the family, it was void. The object of the agreement was then gratified, and the parties became informed of their rights under the will. It was not competent in this court to allow the defendants to withdraw their demurrer and answer over, although provision for doing so in the court below might have been made in the decree. The decree given by this court was, in its terms, calculated to afford the relief to which the allegations of the bill entitled the com[389] plainant, those allegations heing in the posture of the case as it then stood admitted by the demurrer, and although it would have been more regular to have ordered the ease to be returned to the chancery court, with the privilege to the defendants to answer to the merits, if they chose to avail themselves of their privilege to do so, yet it does not follow, that such right was taken awaj? by any thing in our decree. Upon the question, whether that right might be exercised after the case was again in the possession of the chancellor, the decree is silent, and for that reason, is within the case of Duvall and The Farmers Bank, 9 G. & J., 32, in which it was held, “that upon a second appeal in the same case, this court may look into and decide questions involved in the record previously brought up, when a decision of those questions was not made upon the former appeal.” We think, therefore, that the chancellor was in error by the order of 1st May, 1839, rejecting the petition which the defendants preferred, asking leave to answer fully upon the merits; and also by the order of 9th July, 1842, ruling tiie exceptions to the answer good, on the ground that the defendants were not at liberty to answer to the merits of the case stated in the original bill.
The decree of this court was express on the point, that a maintenance to John Tolson, as an individual, was secured by the will, and the reference to the “condition and habits of life” of John Tolson and bis late father, was intended to have allusion to the extent of the estate and to their mode of living, so far as its expensiveness or economy were concerned, and the practice and habits, in this respect, of the persons with whom they associated. It will readily occur, that where a man of very large fortune, whose habits of life have been luxurious, and who has indulged his children in the most expensive style of dress, and other items of habitual gratification, provides for the maintenance of a child, whose misfortunes or infirmities of character make him unfit to be trusted with the possession of a distributive portion of his estate, a larger annual expenditure would be proper and, indeed, necessary to his comfort, than in a case differing in all respects, so far as wealth, [390] and luxurious or expensive habits of living were concerned. A man may be comfortable, with plain fare and plain dress, who has always been accustomed to them, while to another, who has always indulged in a contrary practice, and whose associations are with those of similar habits of indulgence, it would be anything but comfort to be reduced to the same kind of economy. The terms were employed in the decree in the sense here expressed, and not as denoting his condition relatively to his wife and children, and servants; and the extent or value of the estate of the testator, was considered a proper element in the estimate of a reasonable allowance, as it cannot be inferred, that with a family of seven other sons and two daughters, it was his design to give the whole, or a very large proportion, of the profits of his entire estate to the maintenance of one son, to whom he did not deem it prudent to devise any portion of his estate.
The opinion of the present chancellor, as expressed in his order of the 14th June, 1847, gives a very proper interpretation to t.he decree of this court, except in the particulars about to be mentioned. The first is, that he allows the testimony which had been given, as to the sum necessary for the maintenance of the complainant, regarded as “the head of a family,” to enter into the average with the estimates of what was necessary for his individual support; and, again, he seems to consider the decree of this court as requiring the charge to be made m solido, and not distribulively amongst the several defendants. The court did not design, by saying the entire real estate was chargeable, to confine the chancellor to any particular mode of securing to the complainant the benefit of the lien, but only to announce the opinion that a lien was created. Being of opinion with the chancellor, that there are manifest advantages in adjusting the rights of all the parties definitely, there appears to us great propriety in arranging the account accordingly. By the terms of the act of Assembly, we are bound, while the case is before us, to correct any errors throughout the progress of the cause which are complained of on the appeal, and we must, therefore, reverse the several orders before mentioned, [391] and allow the caso to be returned to the chancery court, to permit the defendants, if they find it necessary to do so, to answer fully to the bill, on such terms as the chancellor, pursuant to the practice of the court, may prescribe, and for such further proceedings as the nature of the case and j ustice to the respective parties may require.
As some points of detail have been argued, it may avoid future litigation on them to say, that we are of opinion, that the complainant’s portion of the land derived to him by inheritance from Wihelmdna Tolson, is chargeable, as every part of the real estate is, with its proportionate share of the allowance, and we think the most effectual mode of imposing the charge, would be by crediting this aliquot part against his claim, and thus reducing the amount chargeable to the owners of the other portions.
Martha E. Tolson, the widow of Alfred, can only be chargeable in respect of her dower, and her child only as heir to the father, Alfred Tolson.
Interest is properly chargeable at the expiration of the year, if any balance then remains due, according to the principle, in that respect, adopted by the account, which was confirmed by the chancellor.
CAUSE REMANDED
UNDER ACT OF 1832.