#### Thomas H. Willett, and Sally Maria Willett his Wife, *vs.*Mary Carroll.

A testatrix devised a *farm*called “ *Greene’s Inheritance”*to W in fee, and then, after giving some personal property to C, added: *“Item.*I do hereby will and direct that *the*said C *shall have a home,*during her natural life, *on the farm*hereinbefore bequeathed unto W.” Held:

1st. That this devise of a *“home”*is not void for *uncertainty,*nor is it confined to a mere *room*and *shelter*in the house on the farm, but extends to the *board*and *maintenance*of the devisee, and is a *charge*upon the land therefor.

2nd. The sum to be awarded the devisee, as an annuity, chargeable on the land, must bear a proper relation to the product of the latter; the standard of her right is the *value*of the home, as she was habituated to it in the house of the testatrix.

3rd. In estimating this sum regard must be had to the *manner*and *mode*of life of the devisee up to the death of the testatrix, the relative situation of the parties, according to the position they maintain in society, the condition and habits in life of the testatrix and the devisee, the extent of the estate, the mode of living of the parties, so far as expensiveness or economy is concerned, and the practice and habits of the persons with whom they associate.

Appeal from the Equity side of the Circuit Court for Charles county.

Teresa A. Coomes, of Charles county, by her will, executed in January 1854, and admitted to probate in May 1854, devised, in fee, “'Unto Sally Maria Willett, the farm on which” the testatrix resided, called “Greene’s Inheritance,” *460containing one hunded and seventy acres, and, in consideration” of this devise, made a charge upon the said Sally of the sum of forty dollars, annually, to be paid unto Nicholas Coomes.” She then bequeathed to the said Sally, certain slaves and other personal property. She also gave unto Mary Carroll two negro slaves, and one bed and furniture, and then added:

*“Item.*1 do hereby will and direct, that the said Mary Carroll *shall have a home*during her natural life, *pn the farm*hereinbefore bequeathed unto S.ally Maria Willett.”

Ájd the rest and residue of her property the testatrix bequeathed to the said Sally Maria Willett and Mary Carroll, to be equally divided between them.

Mary Carroll, the above named legatee, filed her bill in this pase, on the 6th *of*April 1857, against the appellees, alleging that, during the life of the testatrix, the complainant and the said Sally Maria lived with the testatrix in the mansion house pn said farm, and that they were all equally supported and maintained by the product thereof; and that, it was the intention of the testatrix, by the bequest of a *“home,'*on said farm, tp give to the .complainant a support, maintenance and shelter, by the use of th.e mansion house on said farm, and also by the occupation and use of the usufruct of the farm, so far as should b,e necessary to her supply with food .and raiment, and a house for shelter; that after the death of the testatrix, the complainapt cpptipued to reside in the mansion house on the farm, with the said Sally Maria, in the enjoyment and use pf the prodppt of the farm, pntil the marriage of the said Sally with Thomas H. Willett, and that, thereafter, the complainant was deprived of all benefit of the farm, in their preventing her from the use of the products of the same, and not permitting her to eat at their table, by their shutting themselves up at nieals, ip their own room, and by petty acts of annoyance, hindrance and deprivature, debarring her, not only from any support and benefit of the farm, in the way of food and raiment, but making her situation in the house so unpleasant, pnd, indeed, insupportable, that she was compelled to wholly ©;bapdop the house apcl farm, and seek a home elsewhere; and *461has been thereby deprived wholly of the benefit of the said bequest of the testatrix. The bill then prays for a decree, directing the defendants to pay to the complainant, annually, during her natural life, a sum sufficient to furnish her with shelter, food and raiment; or such a decree as the nature of her case demands; and for general relief.

Willett and wife, in their answer, admit the execution of the will, and insist that, by its true construction the complainant is only entitled to sufficient room and shelter on the farm, and that they are not bound to furnish her anything more; and they insist that they are now, and always have been ready, to permit her the use of a room in the house, or sufficient room for her to live comfortably in; but that, since the 1st of January 1857, they have refused to board her, or to furnish her with anything to eat, believing they were not required to do so by the will.

The case was submitted on bill and answer, and the court (Crain, J.) in delivering his opinion, said: “From an examination of the whole will, I am satisfied the testatrix, after devising the real estate therein mentioned, to her cousin Sally Maria Willett, designed to charge it with the payment of a sum of money to her brother, Nicholas Coomes, and also to charge it with the board and maintenance of her cousin, Mary Carroll. In the construction of this will it is the bounden duty of the court to ascertain the intention of the testatrix, from an examination of the whole will, and having ascertained such intention, to give it effect and operation, unless it is inconsistent with some well established principle of law. If the devise is so certain and definite, that we can give it effect and operation, it must be enforced and executed. The devise to Mary Carroll of a *home*on the real estate devised to her cousin. Sally Maria Willett, is such a charge as can be made certain and operative. I shall send this case to the auditor to take testimony, to enable the court to say what is a fair compensation to Mary Carroll in lieu of a home on said farm, and to form an adequate idea of its value. We are bound to look to the relative situation of the parties, according to the position which the complainant and respondents maintain in socie*462ty. To enable us to do so a proper regard must be had to the condition and habits of life of the testatrix, and also the complainant. We must look to the extent of the estate and to the mode of living of the parties, so far as expensiveness or economy is concerned, and the practice and habits of the persons with whom they associated. I will therefore sign an order, referring this case to the auditor, to take testimony, to show what is a fair and reasonable annual allowance to Mary Carroll, in lieu of said home, to be ascertained according to the principles of this opinion.” From the order so passed the defendants appealed.

The cause was argued before Le Grand, C. J., Eccleston and Bartol, J.

*Frank H. Stockett*for the appellants, argued, that the order appealed from was erroneous:

1st. Because the devise of *“a*home” is too indefinite as to character and extent to be enforced by the court, and is therefore *void.*In the case of *Tolson vs. Tolson,*10 *G. & J.,*159, the will said: “I request” my sons “above named to *take care*of their brother John Tolson and *his*family,” and while the court held the devise in favor of *John*to be good, they yet held, that the term “family” was too uncertain to designate the *persons*intended by the testator, and that the devise, so far as regards the *family*of John Tolson, must fail. The term *“family"*is not more *indefinite*as to the *persons*designated, than the word *“home"*is in reference to the *subject*devised.

2nd. Because if not too vague and indefinite, the court can only give meaning to the words of the will as used by the testatrix; and, in virtue of this devise, the appellee is *only*entitled, during her natural life, to the use of sufficient *room*in the dwelling-house for her to live comfortably in, without any allowance for her clothing or maintenance.

*Robt. S. Reeder*for the appellee.

The question in this case is, what was Mary Carroll, the legatee, entitled to under the bequest that she “shall have a *463*home,*during her natural life, *on the farm*hereinbefore bequeathed unto Sally Maria Willett?” Did the bequest of a home give her a shelter, or did it give her a support and maintenance, as a shelter, food, raiment, firewood, water, air, light, and whatever was a necessaiy to a comfortable and reasonable support and maintenance, and not a niggardly, contracted-, slavish and dependent support and maintenance?

The words, *“shall have a home on the farm,*during her natural life,” are stronger than if the testatrix had said,-should be *“taken care of,”*and yet, in *Tolson vs. Tolson,*10 G. *&*J., 159, it was decided, that the words, *“take care of their brother John,”*imposed upon, the legatees the obligation to take care of their brother, and that a sum necessary for that purpose was a *charge*upon the property. The *farm*called “Greene’s Inheritance” is given to Sally Maria Willett, and the appellee is given a home *on this farm,*thus bequeathed specifically. The *farm*and the *home*are both specific bequests, and there is here as much of a *charge*upon the land as there was in *Luckett vs. White,*10 *G. & J.,*480, where a devise to one son, of a farm, “he paying to his younger, brother one hundred pounds, current money,” was held to be a charge which the court could enforce by a decree. In *Ripple vs. Ripple,*1 *Rawle,*386, a devise of land to a son, with the direction that he is “to keep and provide for my wife and my two eldest daughters, during their natural lives,” was construed to be a *charge*upon the land. In *Holliday vs. Summerville,*3 *Penn. Rep.,*533, land was devised to a -son, “provided he pays to my other three children JE300,’’ and this was held to be a charge upon the land, although there was personalty. “Give and bequeath a handsome support,, during her natural life, to be paid by my executors,” is an expression adjudicated upon in *Crocker vs.*Crocker, 11 *Pick.,*252, and the words in the present case are surely as strong as those. A devise of the rent and profits of a farm gives the *use*of the farm,.as in *Craig vs. Craig,*3 *Barb. Ch. Rep.,*76, and a *home*on a farm ought to be as strong to the extent of what is necessary to constitute a home.

The intention is to be ascertained from the face of the will and executed, unless opposed to some principle of law. 1 *464*Gill, 395, Jones vs. Earle.*The word *home*has a large import in its social and general acceptation. A devise of *rents*and *profits of*lands will carry the land itself, (4 *Md. Rep.,*1, *Cassilly & wife vs. Meyer,)*and *home,*in its received and social import, ought to be of as large force, should so much be required for a support and maintenance. Wills, though the authority of decisions is not to be disregarded, must depend, for construction, upon their own intrinsic force. 7 *Md. Rep.,*8, *Douglas vs. Blackford.*The word *home*must be construed according to its own intrinsic import, as ascertained by its use in the community in which it is applied. In *Todd, Johnson*and *Walker's Dictionary,*we find that *home*means, His own house; — the private dwelling; — His own count}'; — the place of constant residence. In *Webster's Dictionary*its definitions are, 1st. A dwelling house; — the house or place in which one resides. “Home is the sacred refuge of our *life." —Dry den.*2nd. One’s own country. 3rd. The place of constant residence; — the seat. ‘Flandria, by plenty, made *the home of war."-*— -Prior. 4th. The grave; — death;—ora future state. “Man goeth to his long home.” 5th. The present state of existence. “Whilst we are at home in the body we are absent from the Lord.” 6th. At home; — at one’s own house or lodging; — to be at home; — to be conversant with what is familiar. These are the full and large and varied definitions given of the word by these distinguished orthoepists, as derived from general use and custom through standard authors. They indicate the use and enjoyment of the essentials of life.

In *Brown vs. Brown,*7 *Iredell's Eq. Rep.,*30, a testator devised to his two sons two tracts of land. B is to erect on C’s tract a house, and has the use, for ten years, for that purpose, of certain personal property. At the end of ten years the house is incomplete and badly executed. The court decreed a sufficient sum to be paid C to complete the house in a workmanlike manner. So the word *home,-*according to standard orthoepists, having a various signification from the circumstances of its peculiar use, it must here be liberally construed and a sum given in lieu thereof.

The words of a will are to be construed according to their *465natural or customary sense, unless some obvious inconvenience or incongruity would result from such construction. 1 *Johns. , Ch. Rep.,*220, *Roosevelt vs. Thurman.*Where the meaning attached to words in a will, by the testator, can be ascertained from the will itself, that meaning should be given to them m the construction of the will, although contrary to common usage. 2 *Munf.,*234, *Carnagy vs. Woodcock.*In the construction of a will the inclination of the court, where the bequest is ambiguous, is towards the vesting of the legacy. 3 *Iredell's Eq. Rep.,*323, *Guyther vs. Taylor.*Words favorable to the cause of a legatee are to be beneficially construed, (6 *Mass.,*169, *Parsons vs. Winslow,)*and the intention of the testator is to be construed liberally to further a purpose, and the whole will must be taken together. 1 *Dessauss.,*127, *Sams vs. Mathews.*The circumstances of the testator’s family, and the extent and kind of his property may be taken into consideration, in construing a will, as indicating his intent. 3 *Murphy, 27, Edens vs. Williams.*

In *Holme vs. Harrison, 2 Whart.,*283, under a devise,“my wife is to have the furniture she shall have selected, and *a house to live in and garden, and one-third part of all the*estate,” it was held,- that the wife took a life-estate in the *house*and *garden,*and a fee in the one-third. In *Wusthoff vs. Dracourt,*3 *Watts,*240, a devise of two- rooms in a house' to the widow, “desiring that she may have a *shelter*for life,” was held to give her an estate for life in the rooms, of which she may make any disposition, and not a mere easement for her personal convenience. In *Hunter vs. Stembridge,*12 *Geo. Rep.,*192, the words, “I also *allow*my son to give her a support off my plantation,- during her life,” were held to give a support and maintenance to the wife off the’ plantation, and was a lieu on the plantation to be enforced in equity. The words, “shall have a *home*on a farm, during her natural life,” ought to be as strong as a “garden,” or a “house,” or a “shelter in a room,” and create as strong a right in the devisee.

I have not been able' to find this case directly decided, and have been, therefore, compelled to resort to analogous cases.*466I have also resorted to the definition of the word *“home” as*given by distinguished orthoepisls, because language had its origin in the application of words- to things, and from its usage we are to determine its signification, where we have not a legal technical import. The *import of language*constitutes the *common law oí*the human race, and if we find that, in its usage, it has a signification equal to an absolute title to property, we must so use it where the design is manifest to give a right equal *to*a support and maintenance.

Le Grand, C. J.,

delivered the opinion of this court.

The bill filed in this case asks, that a decree may be passed compelling the appellants to pay annually to the appellee, (the complainant.) during her natural life, a sum sufficient to furnish her with *shelter, food*and *raiment,*or that such a decree may be passed as the nature of her case demands.

The claim of the appellee is founded on the language of the will of a certain Teresa A. Coomes. By that will Sarah Maria Willett, one of the defendants, had, as well as other property devised to her, a *farm*of the name of *“Greene's Inheritance.”*The same will, after giving two slaves, and one-bed and furniture to the complainant, Mary Carroll, proceeds-as follows:

> *“Item.*— I do hereby will and direct, that the said Mary Carroll shall have a home, during her natural life, on the farm hereinbefore bequeathed unto Sally Maria Willett.”

The answer of the defendants admits the due execution of the will, but insists that, by a “true and proper construction of it, the complainant is *only entitled to sufficient room and shelter on the farm called Greene's Inheritance, devised in said will,”*and that the defendants are “ *not hound to furnish her with any thing more.”*

The Circuit court, on an examination of the whole will, was of the opinion, that the testratrix designed to devise the real estate charged “with the board and maintenance of her cousiny Mary Carroll,” the complainant, and we are of the same opinion.

There was no evidence taken in the case, and therefore,*467independently of the allegations of the bill, we are left entirely in the dark as to the relations which had subsisted between the testatrix and the complainant. But this darkness can be dispelled, in all probability, by testimony to be taken before the auditor, and it may then be made to appear, as stated in the bill, that up to the time of the death of the testatrix, and of the intermarriage of the defendant, Sally Maria, with the defendant, Thomas H. Willett, the complainant and the defendant Sally Maria, lived on the farm in the enjoyment and use of the mansion house and the product of the farm, and during the life of the testatrix, she, the complainant, and the defendant Sally Maria, were all three equally supported and maintained by the product of the farm.

The principal question in the cause, is, the construction of the clause in the will in reference to the *“home”*to be given to the complainant. In the case of *Tolson vs.*Tolson, 10 *G. & J.,*159, and 8 *Gill,*376, the following words were the subject of judicial interpretation: “I *request*my seven sons, above named, *to take care*of their brother John Tolson and his *family,”*and it was decided, that whilst the term *“family”*was too indefinite to designate the persons intended by the testator, and therefore, as to those contemplated by that term, the devise failed, yet, that in reference to *“John”*the devise did not fail, and that the proper and necessary means of securing the executidn of the testator’s intention to provide a maintenance for him, was, to consider the amount necessary for that purpose a charge on the land devised to the seven sons, and to make them trustees for John.

The case now before this court is much stronger than that of Tolson. There the words were, *“ 1 request,”*and, *“take care of,”*here, they are, “I. do hereby *ivill*and *direct,”*that Mary Carroll “shall *have*a *home*during her natural life *on*the *farm,*hereinbefore,” &c. In the one case the provision rests on a mere *request,*whilst in the other it is expressly *willed*and *directed,*and imperatively commanded, that the complainant *“shall*have” a *“home.”*If, then, the case of Tolson be authority in this State, (and we can perceive no reason why it is not to be so regarded,) it follows, inevitably, *468that thejcomplainant is entitled, under the devise, to *something*more than a mere *shelter*from the “pitiless peltings” of the elements. The word “home,” not only in its true etymology, but in its ordinary acceptation, means something moré genial than a mere privilege to perambulate a dreary room. The common sense, as well as the *common*charity of the world, revolts at the idea, that a word everywhere hallowed, even among barbarians, as typical of something sacred and beneficent, should be dwarfed into the chilly proportions of a room, fireless, bedless and foodless. Such is not and never was its meaning, unless the whole world have, up to the present time, with persistent ignorance, misused it

We are clearly of opinion, that the testatrix intended to provide for the *comfort*and not the *annoyance*of the complainant,Sand that when she used the word *“home,”*she understood it as importing what every body else had been accustomed to understand as its meaning. In affirming the action of the Circuit court, and remanding the case for further proceedings, we deem it proper to say, that whatever decree may hereafter be passed, regard should be had to the manner and mode of life of the complainant up *to*the death of the testatrix, and the sum awarded her as an annuity chargeable on the land, should also bear a proper relation to the product of the [after. This direction we give upon the supposition, that the allegations of her bill will be made out by proof to be taken before the auditor, and if this should turn out so, then a proper standard will be furnished to measure her right, which will be the value of the ‘thome,”-as she was habituated to it in the house of the testatrix. We concur fully with the circuit judge in the following: “We are hound to look at the relative situation of the parties, according to the position which the complainant and respondents maintain in society. To enable us to do so, a proper regard must be had to the condition and habits in life of the said testatrix, and also the complainant. We must look to the extent of the estate, and to the mode of living of the parties, so far as expensiveness or *economy*js concerned, and the practice and habits of the persons with Whom they associated.”

*469(Decided May 31st, 1859.)

In addition to the case of Tolson, we refer to that of *Hunter vs. Stembridge,*12 *Georgia,*192.

*Order affirmed with costs, and cause remanded for further proceedings under act of*1832, *ch.*302.