#### JAMES BRANCH *against*JOHN BRANCH AND OTHERS.

Upon a bequest to children, as tenants in common with a postponement of the division, in tho -absence of any direction to the contrary, the expenses for maintenance and education of each, is a separate charge upon his share ■of the profits.

Cause removed from the Court of Equity of Halifax.

The bill was filed against the defendant as the guardian of the plaintiff, for an account and settlement of the amount *269arising to liim under the will of his father, Joseph Branch.— The clauses of the will material to the question debated before the Court are as follws: “Item. I authorise and request my executors, herein after named, to sell on such terms-as they may think most proper, all my lands in- the State of Tennessee, and all my personal property, with, the exception of my negroes and five trunks and their contents, which I wish reserved for the use of my children.

“Item. I desire that my negroes be’hired out yearly in- the county of Williamson, until the arrival of my sons respectively, to the age of twenty-one years, or- the marriage of my daughter.

“Item. I give, devise and bequeath unto all m}*- children, an equal portion of my estate to be paid over to them as they respectively arrive at the age of twenty-one years; but should my daughter marry before arrival at the age of twepty-one, I desire that her portion, be paid over t©' her upon her marriage.” * •

“Item. I desire that my children be carried back to North Carolina, and placed under the care of ray brother, John. Brand). * * I should prefer, under my present views,, that all my children shall be raised and educated- in North Carolina, but, as events may occur which I cannot foresee, I leave this entirely to the discretion of their guardians, hereinafter named.

“I desire that such of my negroes, as may be necessary to wait on and attend to my children, go with them to North Carolina. I greatly desire that my negroes shall be humanely treated, and should prefer, if it can be done, that they be hired out, privately, to humane persons, even at a less price, and, if possible, in families together.”

Appoints John Branch, Laurence O’Brian and Henry R. *W.*Hill, guardians, trustees and executors. The will was made in Tennessee. . The children came back to North Carolina, and were reared and educated under the supervision of Governor Branch, the defendant.

The only question argued in this Court, was whether, accord*270ing to the provisions of the foregoing will, the maintenance and education of the children is to be a joint charge upon the ag* gregate profits of the estate, or whether the support of each is to come off of his separate share of the profits only.

Cause set for hearing on the bill, answer, exhibits and proofs, and sent to this Court.

*B. F. Moore*and Rodman, for the plaintiff.

Badger, *Miller*and Batchelor, for the defendants.

MaNly, J.

A simple enquiry is made of the Court upon the construction of the will of Joseph Branch, viz: wbethei' the maintenance and education of the children is to be a joiut charge upon the'aggregate profits of the estate, or whether the support of each is to be taxed against his aliquot part of the profits- onl}-.

There is nothing, it seems to us, in the will to justify the first view. It is well settled, in respect to bequests of this sort to children, that they take vested interests, with a right to the profits down to the period fixed for enjoyment for support, and upon a plain principle of justice, each would be entitled to the profits in proportion to his interest in the property. A different application of the profits can only be justified by a manifest purpose on the part of the testator. It is sufficient for the occasion to say, no such purpose is perceivable. — - Equality seems to be a leading characteristic of the testator’s bequests. This excellent feature would be marred by regarding the profits as a joint fund, subject to the general charge, and divisible as the children respectively arrive at age. Per* feet equality, could only be attained in one of two ways, either by postponing the division until the youngest arrived at age, and-then, making a general division, which is not allowed by the terms of the will, or by regarding the profits from the beginning, as divisible among the children according to their respective interests, which is allowed, and which we deem the proper interpretation.

We have attentively considered the will, and are of opinioh *271that by postponing the period of division, it was not the purpose of the testator to disturb the equal interests of his children, but to secure, as far as practicable, the comfort and happiness of his slaves, to increase the general profits, and consequently to augment the value of each share iii it, and to provide more conveniently for the application of the profits to the wants of each. If no intention to the contrary were clearly manifest, we should feel bound to follow the general rules of law, by which the profits attend on the shares and the charges attacli on the profits.

These views and conclusions are fully sanctioned by the cases of *Green*v. *Cook,*2 Dev. Eq. 531, and *Mebane*v. Smith, 2 Ired. Eq. 731; in the first of which, especially, the same question is made under precisely similar circumstances.

In all the cases cited by the defendant’s counsel, there was a joint fund provided for the maintenance of the children which distinguishes them from this case.

Per CuriaM, There must be a decree for an account* conformably to this opinion.