#### *W. J McFeely and wife v. James Gadsden, executor, et al.*

Charleston,

Jany. l .

Where testator left property to his three children, a daughter and two sons, “ to be kept together, undivided, under the sole supervision of his executors,” for the purpose of educating them, until they should “ either marry, or attain the age of twenty-one years;” upon a bill being filed by the daughter (who had married,) and her husband, the Courtheld that the whole fund was chargeable with the education of each child, hut that complainants were entitled to then- proportion of the surplus, to be annually accounted for to them.

*Before*Dunkot, Ch. *at Charleston, Sittings,*1847.

His Honor stales the case as made by bill and answer in the following decree:

Dunkot, Ch. Thomas Wilkes Seabrook, the testator, died in Florida, leaving in force his will, dated 29th April, 1835. At the time of the execution of his will, and at his death, his estate consisted of a tract of land in Florida, containing some 210 acres, and forty-four negroes. He left a widow, (who subsequently removed to South Carolina, and married the defendant, James L. Rose,) and three children, to wit: a daughter and two sons.

His will directs that, after payment of his debts, his “ real as well as personal estate should be equally divided between his beloved wife, Mary Martha Seabrook, his daughter Honoria Wilkes Seabrook, and his two sons, Allston and Whitemarsh Henry Seabrook, and the gift of the same I do hereby confirm to them. But I desire and hereby wish it to be distinctly understood by my executors hereinafter named, that should my daughter Honoria Wilkes Seabrook, marry and die without issue, that her proportion of my real estate shall revert back to my two sons, Allston and Whitemarsh Henry Seabrook, and be equally divided between them.” After appointing the defendant, James Gadsden, and the late John A. Cuthbert, his executors, the testator proceeds:— *“*And I do hereby enjoin it, most earnestly, upon the said executors, to give my three children a first rate education; and for the purpose of effecting the purpose aforesaid, I desire that my executors shall be the guardians of my three children, *70and their proportion of my real and personal property shall be jrept together and undivided, under the sole and entire supervision and direction of my executors, until they shall either many or attain the age of twenty-one years.

Speers’ Eq. R. 341<

The proportion of the widow has been some time since delivered to her. The daughter Honoria Wilkes, recently intermarried with the complainant W. J. McFeely, and the prayer of the bill is, that her share oí her father’s estate may be delivered to them, in severalty. The defendant submits whether, under the last clause of the testator’s will, the share or proportion of the children must not be kept together until they are educated.

There can be no doubt that both the widow and children took vested interests under the first disposing clause of this will. This directs that, after the payment of his debts, the testator’s estate should be equally divided between them, “ and the gift of the same he thereby confirms to them.” Contemplating that some division would be made before his chib dren were educated, the testator then expresses his deep solicitude on that subject, enjoins on his executors to give them .“ a first rate education,” and endeavors to secure to them the means of accomplishing his purpose. If he had supposed that the *income*of each child’s share would be sufficient, it was only necessary to appoint his friends *testamentary*guardians of his children. The direction to keep their proportion together was simply superfluous and nugatory; but the children were of different ages, The expense of education for each would be different at different periods, the eldest *making*large requisitions on the fund — the youngest nothing perhaps. The expense of the eldest, for some years, exceeding far the interest of any one share, while at the same time, the expense of the younger children would fall below it. To adopt the language of Chancellor Harper, in *Ellerbe*v. Ellerbe, *“*the allowance for education must depend on circumstances and exigencies. If, as in the case of *Whilden*v. Whilden, a testator leaves a fund for the *support*of a large family, of whom one is an infant, one a boy at school, one at college, you would not give an equal allowance for the *support*of each of these. The inquiry would be, what is reasonable and competent in the situation of each.”

But as this is a common fund, great inequality would exist if the elder, after drawing three-fourths of the income for some years, should then, at majority or marriage, withdraw one-third of the capital, and leave a diminished income to meet the increasing expenses of education of those who followed. To prevent *this*— to *secure to each*child a first rate education, by charging an ample fund with the expense of it, seems to the Court the natural and obvious purpose of the testator in the direction which he gives, *“*to keep their propor*71tion together, undivided, under the sole supervision of his ex-editors,”

It does not follow that the complainant is entitled to share of the income in the mean time. On the contrary, the fund belongs to the children, charged with the expenses of education. What is required for that purpose, must be annually appropriated by the executor, and he must account to the complainant.for his proportion of the surplus.

No objection is interposed by the executor to rendering an account of his transactions. He seeks the inquiry.

It is ordered and decreed that it be referred to one of the Masters to take an account of the defendant’s management, as executor of Thomas W. Seabrook, deceased, and that he report thereon. It is further ordered, that the Master have leave to report any special matter, and that parties be at liberty to apply at the foot of this decree, for such further order as may, from time to time, become necessary. Costs to be paid out of the assets of the estate.

The complainants appealed from the decree of the Chancellor, and respectfully submitted that the same was erroneous, and ought to be modified.

1. Because the true construction of the testator’s will is, that the complainants are entitled to possession of the legacy given to his daughter Honoria, on her marriage.

*2.*Because, under the construction adopted by the Chancellor, the adult or married children might be deprived of all benefit from the estate, until all the younger children attain twenty-one, or marry.

3. Because the shares of the minor children are ample for their education; and there is no necessity for interfering with the rule of law, which construes the periods for division to be the time at which the first of the class attain the age fixed for distribution,

4. Because the decree is, in other respects, erroneous.

Memminger, for the complainants.

Hayne, contra.

Dabgan, Ch.

In this case the Court concurs with the views of the Chancellor who presided at the trial of the case, for the reasons expressed in his decree.

The decree is therefore affirmed, and the appeal is dismissed.

Dtjnkin, Ch. and Caldwell, Ch. concurred.

*Decree affirmed.*