#### *Calloway and Others v. Langhorne and Wife.

May, 1826.

Wills — Construction—Intention*—Case at Bar. — 1me intention Is to govern in the construction of a will. Therefore, where a testator, who devised his real estate to his children, and also a sum of money to one of them, so that his estate, both real and personal, not specifically given, shall he brought .into estimate, and divided in such manner as to make their portions equal; the sum of money bequeathed as aforesaid, shall be taken into the general estimate, although the terms specifically given and estimate, do not strictly apply to money, •it being the plain intention, inferred from the whole will, to make all his children' equal.

Legacies — Interest upon Interest.†— Interest upon interest on a legacy, will not be allowed, unless the testator plainly requires it.

Appeal from the Chancery Court of Lynchburg.

The question arose under the will of James Calloway, deceased. The testator, after devising portions of his real and personal estate to his wife and children, makes the following provision for the female appellant, one of his children. “Item, I give and bequeath unto my daughter, Catharine Calloway, the mansion house of land, with the mill on Lick run, and all the personal estate, except the slaves that I have given to my wife, after the termination of her estate thereto, unto my said daughter and her heirs forever. 1 also give her one negro named Peggy, and the sum of 10001. to be paid to her by my executors, as herein after to be directed, and until this is fully done and completed, they are to pay her annually the interest thereon.” He then devises all the residue of his estate, both real and personal, to his executors, for the purpose of paying all his debts, his daughter Lucy’s legacy, and the legacy to his daughter Catharine, at her intermarriage, or arrival at the age of twenty-one years; and for these purposes, he gives his executors unlimited power to sell, dispose of, rent, hire out, &c. the above mentioned property. After these objects are satisfied, he empowers his executors to divide the residue of his estate among his children and grand-children, with an express injunction to make his children equal in point of propert3r. *The will then proceeds, “It is my will and desire, that in the distribution of this residuary estate by my executors, it shall be so done, that the estate, whether real or personal, or both, heretofore and not specifically given to my children, or either of them, shall be brought into estimate, and each charged with what they may have so received, and this residuum to be so divided, as to make each equal to the other. ”

The testator added a codicil to his will, declaring, that instead of the former distribution of the residue of his estate, (which he apprehended might be too uncertain,) his children should receive their respective portions, according to “the estimate, or true value of all the estate they have received, or may specifically receive under the will, and for which they are bound to account, in order to produce the equality contemplated by the will. He proceeds to affix a valuation on the several portions, and estimates the value of Cathariue’s part at 23001. He then concludes, “These sums are to be considered by my executors as the standard value of the respective estates, and no further estimate is to be made.”

The bill was filed by Langhorne, and his wife Catharine, against the executors, alleging that the estate devised to her had not been received until the day of in the year , at which time the legacy of 10001. with simple interest from the time of the testator’s death to the time of payment, was paid: that the executors insisted, that the said legacy was not comprehended in the said sflm of 23001. the estimate made by the testator; and consequently, that in the distribution of the residuum, so as to equalize the childrens’ portions, the complainants should be charged with tne 10001, over and above the 2300i. whereas they conceive, that the said sum of 23001. comprehends all the property, real and personal, specifically devised to the female plaintiff: that by the will, the executors were expressly directed to pay to the female plaintiff, annually, the interest on the said 10001. that is 601. which *was the only provision made for her maintenance, until the payment of the principal: that this annuity was withheld for many years; they therefore insist that they are entitled to receive interest on the said 601. until the principal was paid. They pray, that the executors may be made to account for the plaintiff Catharine’s proportion of the residuum, after estimating the property devised to her, including the said money legacy, at the sum of 23001. and that they be required to pay interest on the annuity of 601. so long as that annuity was withheld.

The executors, in their answer, admit all the facts stated in the bill, and being only anxious to discharge their duty correctly, they submit the construction of the will to the Court. The other defendants answered, resting on the objections which have been briefly stated in the bill.

Depositions were taken ; but as they were not considered in the decree of this Court, they are omitted.

The Chancellor decreed, that in the distribution of the residuary estate of James Calloway, deceased, his executors ought not to pay interest on the interest of the legacy of 10001. bequeathed to the plaintiff Catharine; that the said legacy forms a part of the 23001. mentioned in the codicil, to the will of the testator; and that for the legacy and other property devised to them, the plaintiffs are to be charged only with the sum of 23001. in the distribution.

The defendants appealed.

Wickham, for the appellants,

contended that parol evidence might be received to explain the will in this case, ffor this he referred to Shelton v. Shelton, 1 Wash. 45. Kennon v. M’Roberts, Ib. 96. Reno v. *85Davis, 4 Hen. & Munf. 283. The testator did not mean that the 10001. should be estimated ; nor could he have applied the terms “specifically given,” to money. Those terms apply only to property, not money. The codicil is liable to the same observation. It speaks of property estimated.

*'As to the question of interest, it never is paid on a legacy payable in futuro. 1 Ves. jun. 451.

Heigh, for the appellees.

Parol evidence is not admissible in this case. There was nothing absurd in estimating a sum of monej’, where the testator had made different provisions for his children, some in property, some in money, &c. In like manner, the term “specifically,” is not used technically, but means “particularly.” If the money is not brought into hotchpot, the legacies will be unequal, while the testator clearly intended equality. The codicil explains the will to mean all the estate which he had given, of every kind whatsoever, to render the portions equal. The phrase “account,” applies to money.

As to the interest, it was nothing more than a bequest of 601. per annum, for the maintenance of a child. This is not the case of a debt, but it was a voluntary gift; and the donor might give compound interest if he pleased.

*

See monographic *note*on "Wills” appended to Hughes v. Hughes. 2 Munf. 209.

†

See monographic *note*on"Legacies and Devises” appended to Early v. Early, Gilm. 124.

May 5.

The PRESIDENT

delivered the opinion of the Court.*

It seems to be very clear, that the testator intended that his children should +ake equal portions of his property. He expressly declares his design to be, to make all his children equal in point of property. That it was to be an equal portion, in relation to what he had specifically devised to them, and not in relation to his whole estate, including money, is not to be inferred from the use of the words, “estimate,” and “specifically devised,” in the will, as was argued. Words in a will are to be construed according to the subject matter to which they are made to apply, by the whole context of the will. Though money *cannot be estimated or valued, in the strict sense of those terms; yet, as it was his purpose, more than once expressed, to make the fortunes of his children equal, to that purpose money, may be estimated and valued. So also, it may be said to be specifically devised. This last expression also, may have been used to distinguish the several bequests from the residuum. In the codicil, which is to be taken as a part of the will, the expression “previously given,” and the term “provision,” are also used in reference to the same subject. They clearly include money, as well as specific property. Money may be given, and is also included in the term “provision.”

As to the claim to interest upon interest on the 10001. legacy, there is nothing in the will to justify it. The testator may have designed it as maintenance, until the death of his wife, when provision is made for the legatee; but he calls it interest, which does not generally carry interest; and if he intended that it should, he would have said so. Such a construction would also make the portion unequal, which was intended to be equal.

The decree is therefore to be affirmed.

*

Judge Coalter absent.