#### JAMES HOLDERBY, *administrator, against*ANNE ELIZA WALKER *and others.*

Where a husband willed his whole estate to his widow for life, with remainders over, upon the expiration of such life-estate, and the widow, dissenting from the will, took a third of the estate, it was *Held,*that the remainders limited of the other two-thirds, vested in possession immediately.

(Construction of a will as to a charge for the maintainanoe and education of an infant. — Question of intention depending on the peculiar phraseology of the will. — Substitution of one trustee for another.)

Cause removed from the Court of Equity of Rockingham county.

The questions presented in. this case arise on the will of James Currie, who died in the year 1835. The following are the clauses of the will, which are material to the enquiries involved, viz : “ I devise and bequeath to my beloved wife, Mary Anne, for and during her natural life, all my lands, negroes and other property, of every description, including the money on hand at my death, as well as such as may then be due me, subject, however, to the debts and funeral expenses aforesaid.

“ At the death of my beloved wife, I desire all the estate, real and personal, embraced in the above bequest in her favor, as well as the increase of the negroes from this date, to be divided into *two*equal parts; one of which, I devise unto William R. Walker and his heirs forever ; or in case of his death, before that time, to such children of the said William *47R. Walker as may be living at bis death, and their heirs forever. The other of which parts, I devise and bequeath to Elizabeth Ellington, daughter of William M. Ellington, and her heirs for ever, in the event that she lives to be married ; but in case of her death, without having mamied, then, I devise and bequeath the whole of this half, or part, unto William R. Walker and his heirs forever, or in the case of his death, before that event, to his children living at his death. In the mean time, between the death of my wife, and the marriage of the said Elizabeth, after the death of my wife, it is my wish and desire, that my executor, hereafter named, hold, use and apply, as trustee, that share or part of my estate, given unto the said'Elizabeth Ellington, in fee simple, in the event that she marries, to the following uses, to wit: the comfortable and respectable maintenance and support of tjie said Elizabeth Ellington, and to the educating her in a style and manner suited to her sphere in life.

*“*It is my desire that the said Elizabeth Ellington, during the life of my wife, be educated out of the income from the property which I have given her for life, if the income shall suffice to defray this and the other -expenses of my wife. But if the income of my wife shall be insufficient to discharge all her reasonable expenses and to furnish the means to educate suitably the said Elizabeth Ellington, then, I desire and direct my executor to appropriate a sufficiency of any monies belonging to my estate, to that purpose, or raise money for that purpose, by sale of property, such as my wife can spare with the least inconvenience.

“ It is my will and desire, that in the event it shall be ascertained, by actual experiment, that my wife cannot so manage the land and other property, given her for life, as to defray her annual expenses, my executor shall sell the entire property, real and personal, and put the proceeds thereof, as well as any other monies belonging to my estate, to interest, and that he pay to my wife the interest thereon annually, to be used by her according to her pleasure, save and except, she *48apply a sufficiency thereof to the educating of Elizabeth Ellington.”

’William B. Walker, the executor named in the above will, died in the life-time of the testator, and the plaintiff qualified as administrator with the will annexed. Mary Anne Curriej the widow, dissented from the will of her husband, and received her year’s allowance and distributive share, as well as her dower, and it is admitted, in the pleadings, that, by her dissent, the life-estate of Mrs. Currie being removed out of the way, as to all the property not assigned to her, such property has, or will, by the assent of the executor, become vested in possession; and further, that under the limitations of this will, the part intended for William B. Walker, has, by his death, become vested in his children, who are made defendants in the cause.

The questions made by the executor, and on which he asks the instruction of the Court, are, whether the charge for the maintenance and education of Elizabeth is confined to her share, or whether it is imposed equally upon the share given to Mr. W allcer’s children ?

If the amount is to be raised out of her estate, what amount wilb.be deemed necessary for her comfortable and respectable maintenance and support, and for her education in a style suitable to her sphere in life ?

Whether he will be justified in paying over the sums raised by him for the education, &c., of Elizabeth Ellington to Mrs. Currie, who has been appointed her guardian?

Answers were put in by Elizabeth Ellington and the children of Wm. B. Walker, in which the facts as above stated-are admitted.

The cause was set for hearing upon the bill, answers "and exhibits, and removed to this Court by consent.

*Gorrell,*for plaintiff1.

*J. T. Morehead,*for defendant.

*49Battle, J.

It is admitted by the parties to this controversy, that th'e dissent of the widow to the will of her husband, discharges the share of his estate, which she takes under the law, from the burden of maintaining and educating the infant defendant, Elizabeth Ellington. It is admitted further, that as the life-estate intended by the will for the widow, is removed out of the way as to all the property which has not been assigned to her, such property lias, or will, by the assent of .the executor, become vested in possession. It is admitted, also, that the children of William R. Walker, in the event which has happened, take the share of the estate given by the will to him, and the only question presented to us is, whether the charge for the support and education of Elizabeth Ellington, is confined to her share, or is imposed equally upon that given to Walker’s children. We have no hesitation in saying, that it is restricted to Elizabeth’s own share. This is manifest, from two or three provisions of the will.

While the widow should live, the charge was imposed upon her life-estate, provided it yielded income enough for her support, in addition to what might be required for the maintenance and education of her niece. If the income were not sufficient for both purposes, then the executor was directed to sell; such property as his “ wife could spare with the least inconvenience.” But if his wido w should die before the marriage of Elizabeth, then the share which was given to her, was alone to be applied for her use. In other words, as soon as the estates given to the legatees in remainder should vest in possession, then each share was to bear its own burden. The same result which would have boon arrived at by the death of the widow, had she taken under the will, must, in our opinion, be brought about by her dissent.

The executor is constituted a trustee for Elizabeth Ellington, but if it be desirable that her aunt, the defendant Mary A. Currie, be substituted in his place, we can see no objection ; provided she be a suitable person; as to which, there must be an enquiry, if the parties desire it.

There must also be an enquiry as to the amount necessary *50for tbe “ comfortable and respectable maintenance and sup-, port of the said Elizabeth Ellington, and to the educating of her in a style and manner suitable to her sphere in life,” which must be raised out of her share of the testator’s estate. This will embrace wdiat is necessary for her board, clothing and other usual incidental expenses, as well as tuition, while at school; *Lindsay*v. Hogg, 6 Ire. Eq. Rep. 3.

There must also be a reference for taking all necessary accounts appertaining to the plaintiff’s administration ; and the cause will be retained for further directions.

Pee CuRiAM. Decree accordingly.