#### SAMUEL JOHNSTON *and Wife against*DANIEL COLEMAN, *Executor.*

A Court of Equity will not sanction an expenditure by a guardian or trustee, beyond the income of the estate in his hands, except in a case of *physical necessity ;*as *where*the ward or *cestui que*trust, from weakness of body, or mind, was unfit to be an apprentice.

Cause removed from the county of Cabarrus.

James Coleman of the county of Iredell, made his will in the following form, that is:

“ My will and desire is, that my wife, Mary A. Coleman, have and hold all my property, consisting of lands, negroes, horses, wagon, and all kinds of farming tools, that I may be in possession of at my death, entirely under her care during her widowhood, and as soon as she marries again, every thing is to be put to sale and equally divided.”

Besides his widow, the testator left four small children, the eldest being only nine years old, and the youngest between three and four.

The property left her consisted of a tract of land of about two hundred and sixteen acres, one negro man, a negro woman with five small children, with the usual amount of stock, tools, &c., required to carry on a farm of that description.

*291Conceiving it to be lier duty, under tbe will, sbe attempted to cany on the farm for the support of herself and her children, and she continued the effort for nine years. From this source alone, she fed, clothed, and educated her children during that lime, giving them the very best education that she could. With the utmost care and economy, it was impossible for her to maintain so large and helpless a family without going into debt. So, from year to year, she borrowed money, contracted store accounts, and made other debts, altogether for the decent subsistence of her family.

The widow, Mary A., on the 27th day of December, 1855, intermarried with the plaintiff Johnston, and then, for the first time, it was discovered that the defendant, who is the executor of James Coleman, was unwilling to sanction these accumulated expenditures, or permit any of them to fall on the estate of his testator. On the other hand, he has, as plaintiffs allege, lately seized certain of the property, which the feme plaintiff had disposed of in payment of the debts thus contracted by her, and denies that she had any power or authority to manage such property as trustee, in this way, or to contract such debts on the faith and credit of tiie estate; and the plaintiff Johnston lias been compelled to take the debts contracted by liis wife upon himself, and the defendant refuses to allow him any thing for her thus rearing and providing for the children. The plaintiffs contend that the true interests of the children have been greatly promoted by these expenditures, and that under the will of her late husband, the authority to *have and hold all the property entwély under her*care, gave her a discretion as to the mode of managing it, and gave an authority to charge it with debts for the support of the family. -The plaintiffs pray that the executor may be compelled to account, and settle with them upon these principles, and for general relief.

The executor answered, denying that the construction put upon his testator’s will was the true one, or that he had any power to admit the claims of the plaintiffs against the testator’s estate.

*292Replication, answer and proofs. The canse being set clown for hearing, was sent to this Court.

Jones, for the plaintiffs.

*FLemi/ng,*for the defendant.

Battle, J.

The fair construction of the will of the feme plaintiff’s first husband, taking into consideration the condition of his family and estate is,, that the testator gave her the whole produce of the estate, during widowhood, for the maintenance and support of herself and children. The latter, in-déed, are not expressly named, in the will, nor is there .any express gift to her. Taken literally, she is merely constituted overseer, or manager of the property,, whilst she remains a widow, but upon her second marriage it is directed to be equally divided, without saying, between whom. It is necessary, therefore, to supply, by construction, what was obviously the intention of the testator,, that the property was given to the widow, and as long, as she should, remain- a widow, for the use of herself and her children. When she should become the wife of another man, then, it was to be divided between her and her children. Such seems to have been her understanding of the meaning of the will, and we agree, that in those particulars, she put the proper construction upon it. It is most unfortunate for her that she was not right in another matter — that she fell into the error of supposing that she could exceed the income of the estate, and charge the excess-upon the children’s interest therein. In this respect, we think, that she cannot be regarded in a more favorable light than if she had been expressly constituted guardian or trustee for the children. As such, this Court would not have sanctioned expenditures beyond the income of her wards, or *cestui que*trusts, except in a case of more pressing necessity than is shown by tire pleadings and proofs in this case. In *Long*v. *Norcom,*2 Ire. Eq. Rep. 352, it was held that in an ordinary case, the Court would not relieve a guardian, who, without its previous sanction, had made expenditures for maintenance *293and education of his ward beyond the income of his estate, though he might have acted from the best of motives. But the Court will reimburse the guardian out of the' estate of his ward, when the expenditures were demanded by such circumstances, amounting indeed to physical necessity,, as would have compelled any court to authorise them without a moment’s hesitation. The cases of *physical*necessity, alluded to,, were those of minors, who could not be entitled to maintenance as paupers, who could not be maintained from the profits, of their property, and who, from, mental imbecility, or want of bodily health,, could not be put out as apprentices, to be¡ maintained by their masters. There is no pretence that the children, in the present case, come within the principles of this exception to the general rule. See also, *Patton*v. *Thompson,*2 Jones’ Eq. 411. In *Downey*v. Bulloch, 7 Ire. Eq. 102, it was decided that under some circumstances, a trustee, although restricted to the expenditures of the profits of the trust property, may be at liberty to anticipate, by spending,, under emergency, more than the profits of the current year ; as if there be a dearth and a consequent failure of the crops, or some extraordinary sickness, making it necessary to incur heavy medical bills; but in such case, the existence of this, emergency must be averred and proved, and a full account rendered. We do not find any such averment and proof in the present case. On the contrary, the plaintiffs state that there was a regular excess of expenditxrre over income, arising from the inadequacy of the latter to. support herself and her children. In such a condition of things, she ought either to have applied to the court of equity for an order allowing her to sell a part of the property for the support and education of her children, or, if that could nut be obtained, then to have applied to the county court to have them bound out as apprentices,, under the provisions of the Eevised Statutes,, ch. 5, sec. 1, Bev. Code, ch. 5, sec. 1.)

The principles which we thus find to be established as a part of the law of the State, we feel bound to-- apply to the-present case. The plaintiffs are entitled to an account so far *294as may be necessary to a division of the property according to the terms of the Mali; bnt not to any account for the *expenditures*of the feme plaintiff, before her second marriage, for, and on account of, her children, so far as such expenditures may exceed the income of the property.

Per OubiáM, Decree accordingly.