#### GUSTAVUS P. ANDERSON AND WIFE *against*THOMAS C. ARRINGTON, EXECUTOR.

Where a testator leaves his plantation, His slaves, his stock and farming implements to Ms widow, with a request that ske shall carry on the farm and support the children out of the profits, but in case she married the will provides that the whole properly shall be sold, and the proceeds of the sale divided between her and the ehildieti, the will making no disposition of any surplus that might accrue daring her'widowhood, it was *held*that such surplus shall go to the second husband.

The amount of damages accruing, upon the resale of property, which resale was made necessary by the bidder at a former sale not having complied with the terms of such sale, is too uncertain a question to be disposed of in a Court of Equity, and should be I eft to the proper tribunal, a Court of Law.

Cause removed by consent from the Court of Equity of Nash county, at the Spring Term, 1854.

The hill was filed by the widow of Peter Arrington and her second husband, against the executor,'for an account of the hires of slaves and sales of property bequeathed to the plaintiff Sarah Anne in the testator's will. The bill suggests that the terms of the will in question are of doubtful import, anjl refers several questions to tho Court, which materially affect their rights. The following is the portion of the will upon which these questions are presented.

“ I give to my wife Sarah Anne, during her lifetime, or widowhood, the tract of land whereon I now reside, together with all the negroes belonging to me that are in this State, also all my household and kitchen furniture, plantation utensils, all my stock of every description, horses, mules, cattle, hogs and sheep, crop and provisions, all produce on hand of every description, and my carriage and buggy: with the understanding, and upon the condition that she is to make no *216charge against any one of my children for board or any necessaries she may furnish : and if there should not he a sufficiency raised upon the plantation for the support and maintenance of the family, my executor, herein after named, is authorized to supply such deficiency out of any moneys that may be in his hands, belonging to my estate, and whenever any one of my children shall arrive at the age of one and twenty years, or should marry, such child shall have allotted off, if desired, a fair share of my estate, and in the event of the death or marriage of my wife, in that case I will and direct that the tract of land on which I now live be sold, also all the above mentioned property, with exception of the negroes, (to wit:) household and kitchen furniture, plantation utensils, all the stock or its increase of every description, horses, mules, cattle, hogs and sheep, crop and provisions and all produce that may be on hand, of every description, and carriage and buggy or such vehicle as may be on hand, for the use and convenience of the family.

It is my will and desire that my negroes that are in the State of Alabama should continue to be hired out annually, and should any one of my negroes, either in the State of Alabama or here ip. this State, become disobedient or ungovernable, in such case my executor is hereby authorised to sell or otherwise dispose of such negro or negroes. I will and direct that the tract of land I own in the county of Eranklin, known as the Eben Nelms tract be sold by my executor, either publicly or privately, as in his discretion he may think most advisable. It is my will and desire that if my wife should marry, in that case she shall have allotted to her a fair distributive share of my personal, and proceeds of my real estate, and the residue of my estate of every description, both real and personal, I give and bequeath to my children, namely (the six infant defendants) to them, their heirs and assigns, to be equally divided share and share alike.”

*217The bill alleges that during her widowhood, the feme plaintiff lived upon the farm and cultivated the same, and maintained and educated the children, for which she made no charge. That she was married to the plaintiff Anderson on the 3rd of December, 1853, and immediately thereafter the defendant took possession of all the personal property, excepting the slaves, and advertised the same for sale, and in the next ensueing month sold the same to the highest bidder: that not only the property ordered by the will to be sold was thus disposed ofj but a large amount besides, which the feme plaintiff had by her care and industry produced from the farm, slaves and other property left her in the above recited will, especially from the profits of a blacksmith shop, which she had carried on.

The plaintiff, Anderson, bid off a good deal of this property under an erroneous impression that the same was obliged to be sold under the will. But he says that being a stranger in the community, he was unable to comply with the terms of the sale, by giving security, and prevailed on the defendant to let him keep the property, for a short time longer, and give him an opportunity to comply with these terms ; but he still not being able to do so, the defendant again advertised and sold the property to other perons, which last sale was forbidden by the plaintiff Anderson. The defendant sold the home tract and the Eben Kahns tract, and hired out the negroes in Alabama.

The plaintiffs insist that the course pursued by the plaintiff, was erroneous in selling the personal property, but that at any rate he had, no right to sell the accumulations of the feme plaintiff upon the farm during her widowhood, which they say belong to them. The children of Peter Arrington were made parties defendant. The prayer of the bill is for an account &c., aud for general relief.

The defendant in his answer, says that the plaintiff Anderson did not act in good faith in bidding off the property at the *218first sale, that although he requested and obtained time to comply with the terms of the sale he made no effort to do so,, and at the second sale much of the property was not brought forward by him, but was secreted so that defendant could not get it, and that what was sold went much below the prices bid at the first sale. ITe contends that all the property which had accumulated, as well as that left by the testator, was subject to sale, according to the terms of the will. And he further contends that the plaintiff, Anderson, should be held liable for the loss which was incurred by a resale of the j>roperty, and that he should account for all the prox>erty that went into his hands when the same was bid off by him.

The cause was set for hearing upon the bill answer and exhibit and sent f o this court.

*Miller*for plaintiff.

*Moore*for defendant.

Battle, <T.

The bill is filed for the purpose of obtaining a construction of the will of the late Peter Arrington; and an ascertainment of the rights and liabilities of the parties in relation to his estate, in certain events which have occurred.— Talcing for our guide the well-settled, and well-known rule in the construction of wills, that the intention of the testator as appearing upon his will taken as a whole, is to govern, we proceed to declare our opinion upon such parts of it as are presented for our determination.

The first enquiry is, whether the widow is entitled to the surplus profits of the estate given to her for life or widowhood,. It is manifest that the testator intended her, so long as she remained a widow, to live on the plantation which ho had devised to her, and to cultivate it as lie had done, for the support of herself, her children, and other family. If the profits of the farm were not sufficient for that purpose, the deficiency was to lie supplied out of other funds, in the hands of the ex*219ecutor. If tliey were more tlian sufficient, then the question arises, wliat is to be done with tlie surplus? Is the widow entitled to it? We think she is ; upon the general rule that a teiiant for life or widowhood of stock &c., is entitled to the increase or profits during the continuance of her estate, unless otherwise disposed of by the will. Here the profits are otherwise partially disposed of; to wit: so much as might be required to furnish board and other necessaries for the children. Beyond that, they are not otherwise giren away by the will, and of course belong to the widow. Another question then arises, what is the surplus ? We answer in the language of the defendant’s counsel, that it is what remains after keeping up the premises, paying all the necessary charges of cultivating crops, providing necessaries for the family, and leaving on hand a stock of provisions, horses, hogs, &c., required by the exigencies of the farm. In other words, what would be a surplus to a prudent owner and manager, shall be a surplus as to her, and shall belong to her absolutely.

The next enquiry is, whether she is entitled to the profits of the blacksmith shop: and we think clearly, that she is. Those profits, arising during her widowhood, are not mixed with the funds assigned to the support of the family, and are not otherwise disposed of by the will, and therefore belong to her under the general rule.

The hires of the slaves in Alabama will form a part of the personal estate ; 'a fair distributive share of which is given to her, in express terms, by the will. The widow having married, the executor acted -properly in selling the plantation and other property as.directed by the will. The plaintiffs must account for all the items of personalty bequeathed to the widow, and which came into her possession, or the possession of her second husband, unless the same were lost or destroyed without their default, and they will retain the surplus profits as above stated. The only remaining question is, as to the liability of the plaintiffs in this Court, for the loss incurred by a resale of *220the property, made necessary by the failure of the plaintiff, Anderson, to comply with Ms contract. What would be the liability of the plaintiffs at law, it is unnecessary to say, except that if liable at all (as to which we express no opinion) the damages would not necessarily he the difference in the price at which the articles sold at the two sales. From the circumstances detailed in the answer of the executor, it is manifest that if the plaintiff acted in good faith in asking the indulgence which the executor granted, and failed to comply with his contract after an honest effort to fulfill it, it would be a hard measure of jiistice to compel him to pay, as damages, the difference between the price which he offered for the property, and that for which it finally sold. The property may not have been worth, and the executor may not have been able to have got as much at the first sale as the plaintiff offered for it; and while he was honestly endeavoring to procure security (if he were honestly endeavoring to do so) the property may have in the fluctuations of prices, depreciated in value ; all which, and perhaps other considerations, might properly influence a jury in assessing the amount of damages for the breach of the contract. We have said thus much to show, that the damages are too uncertain to be a proper subject of enquiry in a Court of Equity, and must he left to he passed upon by a more appropriate tribunal — the jury in a Court of Law.

The plaintiffs may have a decree for an account upon the principles set forth in this opinion.

PeR CURIAM. Decree accordingly.