#### *Stinson Ex’or &c. v. Day & Wife.

December, 1842,

Richmond.

(Absent Brooke, J.)

Wills—Devise for Testator’s Daughter and Her Children*—Construction.—A testator devises to a married daughter A. R. and her heirs, W. S. R. included, two tracts of land, and declaring that the daughter’s husband is not capable of conducting his own affairs, and is therefore entirely excluded from managing any part of his (testator’s) estate, directs that his executor shall manage the land “in the following manner, that is to say, that A. R. and her children shall have the rents or profit, except the place I now rent to W. R. and J. D. for three years, but after that time the entire profit of both tracts shall be to the said A. R. and her children, and shall not be sold by them or any of them until her youngest child comes to the age of 21 years, and not then without the consent 'of my daughter A. R. if she is then living.” At the date of the will, A. R. has eight children, all of whom except two are living with lier. The annual value of the land devised is about 175 dollars. Held by the court of appeals, (dissentlente Stanard, J.,) A. R. is entitled to receive the whole rents and profits of the lands devised, during her life, and her children can maintain no suit to recover any portion of the same. Accord. Wallace & ux. v. Dold’s ex’ors & al., 3 Leigh 258.

James Stinson senior, late of Shenandoah county, died in the year 1830, having duly made and published his last will and testament, bearing date the 10th of January 1825, by the sixth clause whereof he devised as follows:

“Sixthly, I give and bequeath to my daughter Anna Roy, late Stinson, and her heirs, Wiley S. Roy included, two tracts of land, viz. the one is the tract that was conveyed to me by William Roy by deed bearing date the 30th day of December Í817, lying on the north side of the South river; the other tract lying on the opposite or east side of said river, a small distance below said land, and is the land whereon William Roy now lives, and is included in the same deed of the 100 acres above ^mentioned; which land I bequeath to them in the following manner, to wit: William Roy, my son in law, is not capable of conducting his own affairs, therefore he himself is entirely excluded from managing any part of my estate.' I therefore wish, and it is my will, for my hereinafter named executor to manage the land in this clause in the following manner ; that is to say, that Anna Roy and her children shall have the rents or profit, except the place I now rent to Wiley Roy and Joseph Day for three years, but after that time the entire profit of both tracts shall be to the said Anna Roy and her children, and shall not be sold by them or any of them until her youngest child comes to the age of twenty-one years, and not then without the consent of my daughter Anna Roy, if she is then living.”

In the fifth clause of his will, the testator had given a- tract of land to his grandson -Wiley S. Roy. The seventh clause contained the following bequests of slaves: “My daughter Anna Roy is to have Buey, but on the same terms of the land mentioned in the sixth clause of this my will, to her and her heirs. And I give and bequeath to my granddaughter Polly Day, late Roy, a small negro girl named Harriet, to her and her heirs forever.” B3r other clauses, the testator devised certain lands to his two sons John and James, respectively, and their heirs.

James Stinson junior, a son of the testator, was named in the will sole executor thereof, and he qualified as such in November 1830.

At the date of the will, mrs. Roy the daughter of the testator had eight children, all of whom were living with her, except Wiley S. and Mary (called in the 7th clause of the will Polly) who was the wife of James Day. The youngest of the children was then scarcely two years old.

In May 1833, James Day and Mary his wife exhibited their bill in the circuit supérior court of Shenandoah ^county, against James Stinson the executor and trustee named in the will, Anna Roy, her husband William Roy, and her other children, of whom several were still infants, and five continued to reside with her. The bill set forth the will of the testator, and insisted that, according to the just construction thereof, the rents and profits of the two tracts of land devised for the benefit of Anna Roy and her children, belonged to the said Anna and all her children in equal shares, and so the plaintiffs were entitled to one ninth part of the same. It was alleged that one of the tracts of land was in the possession of Anna Roy, and the other in that of Wiley S. Roy, to whom *307the same had been rented by the defendant Stinson ; and that Stinson had been applied to by the plaintiffs for some proportion of the rents and profits, but had refused to let them have any part. The prayer of the bill was, that the court would direct an account of the said rents and profits since the death of the testator, and decree one ninth part thereof to be paid to the plaintiffs by Stinson the exeoutor and trustee ; or that the plaintiffs might have such other relief as they were entitled to on the true construction of the will.

Stinson, by his answer, submitted the construction of the will to the court. He denied that he had rented any part of the land to Wiley S. Roy; stated that no part of it was in his own possession; and insisted that he could not, if he would, recover the possession, not having the legal title.

The infant defendants answered by their guardian ad litem, submitting to the court the construction of the will and the protection of their interests. The other adult defendants failed to answer, and as to them the bill was taken pro confesso.

The cause coming on to be heard the 10th of April 1834, the circuit court held, that according to the true construction of the will, Anna Roy and her children *took as joint purchasers the lands devised in the sixth clause, and that the plaintiff Mary Day was entitled to one ninth part of the rents and profits thereof since the death of the testator; and accordingly directed a commissioner to ascertain the amount of such rents and profits, and report the same to the court.

The commissioner reported an account by which the annual rent of the two tracts was estimated at 173 dollars, and interest was charged upon the rent of each year. The aggregate of principal and interest from the death of the testator to the 1st of November 1833 was 575 dollars, to one ninth of which, or 64 dollars, with interest on 58 dollars pa.rt thereof from the said 1st of November 1833, the plaintiffs were entitled according to the terms of the interlocutory decree.

On the 10th of September 1834 the cause was finally heard; when the circuit court, overruling an exception taken by the defendant Stinson to the commissioner’s report, decreed that he pay to the plaintiffs the sum of money, with interest, thereby appearing to be due them, and eight ninths of the costs of suit, which he was to retain out of the rents that mrs. Roy and her other children were entitled to receive.

Stinson applied by petition to this court for an appeal; which was allowed.

C. and G. N. Johnson, for the appellant,

admitted that mrs. Roy did not take a fee simple interest in the lands devised, the word heirs in the beginning of the clause being qualified and explained by other terms employed; but they insisted that the construction adopted by the circuit court, whereby the daughter of the testator and her youngest child (scarcely two years old at the date of the will) were held equally interested in the rents and profits, was erroneous. The testator’s daughter, thej' said, was the chief object of his bounty. The creation of a trust in the executor was solely intended *to exclude the marital rights of her husband, not to give a joint and equal interest to her children and herself. The practical administration of the fund was to be left to the discretion of the mother during her life; and in the exercise of that discretion, she might apply the proceeds to the benefit of herself and her children in such manner and proportions as their respective wants, which would certainly be unequal, might require. After her death, if she died before the youngest child attained the age of 21 years, the same discretion was to be exercised by the trustee, for the common benefit of the children. That such was the scheme intended by the testator, was confirmed by the provision restraining the children from alienating. That restraint could only have been imposed, because the power of alienation would be inconsistent with the discretionary power over the rents and profits, designed to be vested in those who were to administer the fund; namely, the mother and the trustee. The case of Wallace & ux. v. Dold’s ex’ors & al., 3 Leigh 258, they said, was a conclusive authority against the claim set up by the bill.

The attorney general, for the appellees, argued, that the direction for the executor to manage the land and apply the rents or profits to the benefit of mrs. Roy and her children, shewed that the testator designed the rents or profits to pass through the hands of the executor to the beneficiaries; and there was no rule for apportioning the fund, but equality of benefit. The restraint of alienation until the youngest child attained full age, implied that a present interest was conferred on the children, and might be alienated by them but for such restraint. In Wallace & ux. v. Dold’s ex’ors & al. the child had not separated from the family of the mother. The suit here is brought by a child who has married and left the family; and unless it be sustained, she will be excluded from all interest in a fund which was certainly intended not less for her benefit than that of 'x'the children who continued to reside with their mother. The authorities referred to by president Tucker, who dissented from the other judges in Wallace & ux. v. Dold’s ex’ors & al. shew, that the construction of wills similar to this has been, that the children take equally with the parent.

*

Conveyance for Woman and Children—Heniion of Children—Motive for Gift.—A grant or gift to a woman and her children, or to a trustee for the benefit of herself and children, passes to the mother ; the mention of the word “children” in the deed or will merely indicates the motive for the gift or conveyance, without investing them with any interest therein. For this proposition the principal case is cited in Walke v. Moore, 95 Va. 733, 30 S. E. Rep. 374; Richardson v. Seevers, 84 Va. 270,4 S. E. Rep. 712; Seibel v. Rapp, 85 Va. 30, 6 S. E. Rep. 478; Bain v. Buff, 76 Va. 375; Stace v. Bumgardner, 89 Va. 425,16 S. E. Rep. 252; Mauzy v. Mauzy, 79 Va. 539; Waller v. Catlett, 83 Va. 203, 2 S. E. Rep. 280; Penn v. Whitehead, 17 Gratt. 515; Rhett v. Mason, 18 Gratt. 566: Summers v. Bean, 13 Gratt. 422.

The principal case is distinguished in Nickell v. Handly, 10 Gratt. 343. See *foot-notes*to Penn v. Whitehead, 17 Gratt. 503; Rhett v. Mason, 18 Gratt. 541; Leake v. Benson, 29 Gratt. 153.

In addition to the above authorities, see upon this subject, Wallace v. Dold, 3 Leigh 258; Fackler v. Berry, 93 Va. 565, 25 S. E. Rep. 887; Nye v. Lovitt, 92 Va. 710, 24 S. E. Rep. 345; Atkinson v. McCormick, 76 Va. 800; Mosby v. Paul, 88 Va. 533, 14 S. E. Rep. 336; Vaughan v. Vaughan, 97 Va. 327. 33 S. E. Rep. 603. But see Fitzpatrick v. Fitzpatrick, 100 Va.—, Va. Law Reg. Oct. 1902.

The principal case is cited in Armstrong v. Pitts, 13 Gratt. 243.

BALDWIN, J.

This is an awkward and obscure devise, but it has a key to it, which I think will unlock the testator’s meaning. That key is to be found in the condition of this daughter, and the provision which a father would be naturally disposed to make for a child in her circumstances. She was the wife of an improvident husband, and the mother of a large, and, it may have been, increasing family of children; some *308of them of tender years; and of two who had attained maturity, one was a married daughter, and the other a son who had set out in life and was managing for himself. The testator, in making a final distribution of his property amongst his children, would of course be desirous of placing the share intended for this unfortunate daughter, beyond the control of the thriftless husband, and the grasp of his creditors; and to secure the benefits of the property to her and those who were the nearest objects of her solicitude, and who by that reason chiefly had attracted his own affectionate regard. The anxious father’s wish would therefore be to give the daughter the control, discretion and authority, which should pertain to the only efficient head of the family; so restricted merely as to prevent her dominion over the subject' from being injuriously perverted. Such a purpose would require a scheme giving to her a home and the perception of the little income of her humble estate, for the common maintenance of herself and family, with the chance of appropriating any surplus that industry and frugality might yield, towards the advancement of such of her : ■ : : . offspring as had left, or might leave, the household ^shelter;. a scheme that would authorize her, for those objects, to continue her ownership and enjoyment within the limit of her life, or to surrender either or both, at her discretion, to and for the benefit of those entitled to the succession ; a scheme that would thus retard or accelerate the admission of her heirs respectively into their inheritance, according to the wants and interests of the family.

With this view of the testator’s probable motives, arising out of the triple relation of the prominent devisee of daughter, wife and mother, and in connexion with the scantiness of the provision contemplated, we shall find that the devise is reasonable and judicious in the whole, with a perfect unison and harmony in all its parts: whereas a different consideration of the subject must result inevitably in a harsh and grating discord. Let us look for a moment into the particulars of the clause in question.

In the first place, the testator shews that this daughter is the primary object of his contemplated bounty, by giving the property to her and her heirs, with the designation, it is true, of one of those heirs, (who, it would seem, was a favourite grandson,) lest it might be supposed that he was excluded from the inheritance, by a separate devise of a tract of land to him in a preceding part of the will. He then proceeds to exclude all marital rights and control of the husband, by declaring that he shall have nothing to do with the management of the property, because incapable of conducting his own affairs. He next interposes his “executor as trustee, but without investing him with the title, inasmuch as he was merely to be the protector of the separate ■ estate, without actual possession of the ; property, or pernancy of the profits. Then ■ follows a declaration that the profit is to be to the daughter and her children, : evidencing that she is to have the 'income and her heirs a present interest in the subject, but qualified immediately *afterwards by a provision that it shall not be sold by them or any of them (meaning the heirs or children) until the youngest child comes to the age of 21 years, and not then without the consent of their mother, if still living. This provi- ■ sion manifests that the mother was to take : the profits for the *common*benefit of the family, without diminution by subtractions from the principal, so long as the whole income might be requisite for the support of the younger children, or after- : wards during her life, if she should deem the whole necessary for her own mainte- . nance. We can account rationally in no other way for the acceleration first of the interest of the heirs, and then its restriction, at the discretion of their mother. Why should the adult and married children be prevented from alienating during the minority of the others, and subsequently at the will of the mother during her life, but to secure her maintenance and that of the household? And why too should they not be permitted to alienate, if it should be found to advance their interests, without prejudicing the common interests of the family; and who so proper to be the judge of this as the mother and mistress of the domestic establishment?

On the other hand, why should we imply, for it is not expressed in the will, an immediate devise of the little estate, real and personal (it embracing a slave by a subsequent clause) to the mother and her children, adults and infants, married and unmarried, born and unborn, as joint tenants or tenants in common, with the distribution amongst them individually and' equally of what was a bare modicum of income for common sustenance? Look at the consequences, and see how it defeats the whole paternal scheme for shelter and food' and raiment, and domestic happiness. What becomes of the maternal control and authority; of a discretion adapted to the wants and inclinations of the children; of a frugal but comfortable household management and thrift; of the domestic hearth itself? And how is the trustee to ^conduct the complex machine, without personal attention to its minutest details; or to save himself from responsibility without taking actual possession of the subject, and doling out the peculium of each individual, including the pittance of some 20 dollars per annum to the mother of the family? In the very nature of things, a device so absurd, impracticable and mischievous could never have entered a father’s, heart.

■ ; ■ A construction frought with such evils, defeating the main object which the testator had in view, and mocking the wretchedness which he sought to relieve, can gain no countenance except from a merely technical view of the question, derived *309from the rigidness of common law conveyances, and inapplicable to the last wills and •testaments of ignorant testators, whose intention, the great desideratum, is to be attained by moulding with a plastic hand their rude and imperfect language into a conformity with their natural and common sense thought. The intention, fairly and candidly sought and sufficiently ascertained, overrules every thing else, and becomes the law of the will, unless in contravention of the law of the land. “If,” said lord Mansfield in Chapman v. Brown, 3 Burr. 1634, “words are supplied by construction, it must always be in support of the manifest intent. The blunder of expression is here favourable to the real meaning, and therefore cannot be supplied by construction, the constant object of which is to attain the intent. For this purpose, words of limitation shall operate as words of purchase; implications shall supply verbal omissions; the letter shall give way; every inaccuracy of grammar, every impropriety of terms shall be corrected by the general meaning, if that be manifest.”

This view of the case is, I think, strongly sustained by the decision of the court, and the reasoning of judge Carr, adopted by the majority of the judges, in the case of Wallace & wife v. Dold’s ex’ors & al., 3 Leigh 258. *In that case there was a bequest of slaves and money to trustees, -with a direction that the profits of the slaves and the interest of the money should be applied to the support and maintenance of a married daughter of the testator, and her child; and that on the death of his daughter, the slaves should be given to her child or children, if she should have more than one: and it was held that the testator’s daughter was entitled to the whole profits ■during her life, and the daughter’s child had no right to demand a share of them for her support and maintenance. There were other circumstances relied on, but the opinion of the court was based, in a great measure, upon the probable motives and design of the testator, the wants of the ■daughter, and the nature and purpose of the bequest. It was a much stronger case than this; and though judge Tucker dissented from the rest of the court, some of his remarks in reference to provisions for the maintenance of familes, seem to indicate that his conclusion would most probably have been different in a case like this.

I think the decree ought to be reversed, and the bill dismissed with costs.

ALLEN, J. In the construction of this will, the situation of the parties must be looked to for the purpose of ascertaining the probable intent of the testator. He had three children, for whom it was his intention to provide, and who are the principa] objects of his bounty. To his two sons he gives portions simply and directly. But his ; daughter was peculiarly situated. From ' the face of the will it appears that she was *‘*married to an improvident husband. He states that his son in law was not capable of managing his own affairs, and therefore he excludes him from managing any part of his estate. This daughter had eight children, two of whom had left the paternal roof; and for these, the testator makes a special provision. The remaining children Hived with the mother, and some of ihem were of tender years. In this state of the family, it seems to me, the daughter was the principal object of the testator’s bounty. Having provided for such of her children as had left her, his intention was to secure to her a comfortable provision for life; to place her in a condition in which she should be certain to receive the profits of this small estate, the whole of which was not more, than sufficient for her maintenance in the decline of life. The first clause gives the property to her and her heirs, the grandson included; the testator apprehending perhaps, that if he were not specially named as one of the heirs, a doubt might arise whether, as he had previously given him a tract of land, he would not be excluded. These words would have given the daughter the fee. Subsequent qualifications of the devise prove that did not use the word in a technical meaning, and that he intended by it the ch ldren. They are important, however, as indicating an intention that all the children of his daughter, whether then living or not, were to take; that it was not the intention to exclude afterborn children. Having by this clause indicated the general intent to provide for his daughter and all her heirs, he proceeds to qualify the generality of the devise, by securing it from the control of the husband. For this purpose he interposes a trustee to manage the estate, and directs that his daughter and her children shall have the profits, but that the land should not be sold by them or any of them until the youngest child arrived at age, and not then without the consent of the daughter, if she was then living.

The provision preventing a sale is relied on as shewing an intent to confer a present interest in the profits.

It is clear from that clause, that the testator .supposed he had invested them with some interest; and therefore the daughter did not take a fee. But it does not prove that he intended 1o give a present interest in Hhe. profits. If that was his intention, the prohibition from selling would have been idle; lor of what consequence could it be to the others, that one should sell, if each was entitled to his aliquot proportion? That would neither be enlarged nor diminished by such a sale. It seems to me, he intended to keep the property together until the youngest child arrived at age, at all events, and until Ihe death of his daughter, if she outlived that event. Whilst she lived, the provision was for her benefit: if she died before the youngest child arrived at age, the property was to be managed by the trustee for the support and benefit of the family: if she survived that event, the property was still to remain unsold, unless by her consent. *310Until the youngest child arrived at age, the testator contemplated a comfortable provision for his daughter, and relied on her maternal tenderness to provide for the children, according to their wants and at her discretion. After they attained full age, he intended that she should still control the property during her life: and that is what he meant by prohibiting a sale without her consent. But if she died before the youngest arrived at age, as the wants of the younger members of the* family might and certainly would exceed those of the children who were able to take care of themselves, the estate was to be kept together and managed for the children by the trustee.. The property would thus be disposed of in such a way as in any event to secure a provision, first, for the daughter; secondly, through her, and at her discretion, for the children ; and thirdly, for the younger children through the trustee, if they should be deprived of their mother before they attained full age.

I think, therefore, that the children took no present interest in the profits during the lifetime of their mother. If they took any such interest, I know of no other mode of securing it to them, than by holding that each took equally and had the absolute right to his portion. The ^daughter, it seems to me, was entitled to the whole for life, with a remainder to all the children after her death, vesting in those living at the death of the testator, and in any afterborn children as they successively came into being; and this construction is in conformity with the decision of this court in Wallace & ux. v. Dold’s ex’ors *&*al.

I think, therefore, that the decree should be reversed, and the bill dismissed.

STANARD, J.

Had I been one of the court that decided the case of Wallace & wife v. Dold’s ex’ors & ai. I should have concurred in the opinion of president Tucker. The principles of that opinion I still approve, and I. think the cases cited by that judge fully sustained the main position of his opinion, that, on the proper construction of the will, the child took a present interest, not liable to be divested at the discretion or will of the mother. In the case in judgment, I think the argument of that opinion, and the cases referred to in it, conclude with equal if not greater cogency in support of a construction of the will, whereby the children take a present interest in the profits, which, however small the property, is not destructible at the will or discretion of the mother, and for which, if withheld, the injured child is entitled to a remedy in equity.

CABRUU, P-,

approving the decision in Wallace & wife v. Dold’s ex’ors & al. and being of opinion that it ruled the present case, held that the decree ought to be reversed and the bill dismissed.

Decree reversed and bill dismissed.