#### William Lucas, et al., Ex’ors, *vs.*Thomas Bennett Lucas, et al.

Testator directed his executors to manage his estate until all his children should marry, or attain twenty-one years of age, and then to mate division of the same — his minor children and some of his minor grand-children to he, in the meantime, maintained and educated out of the general income; and he fully empowered his executors, if, in their opinion, circumstances should require it, to make the division before the period he had named. The executors determined to execute the power and make the division during the minority of some of the *children:*— Held, that provision must be made, in any scheme of division which might be adopted, for the maintenance and education of the minor children and grand-children out of the general estate, although the counsel of all parties, executors, adults and minors, concurred in desiring that no fund should be reserved for that purpose.

BEFORE DARGAN, OH., AT CHARLESTON, JUNE, 1854.

Daesan, Oh. The object of the bill in this case is to enable the complainants, executors of Johnathan Lucas, to account in full, and to settle the estate of their testator entirely, by a full and final distribution of his property among his legatees and devisees; and in order to that, instructions are asked of the Court upon the true construction of the will as to the duty of the complainants to reserve a fund for the support and education of the minor children, who are directed in one clause of the will to be supported out of the general estate. Upon this point, after hearing counsel representing the executors, the adults and the minors, all of whom concur in the opinion and desire that-no fund should be reserved, but that each minor child’s share should be charged with his or her own support and education exclusively, I have come to a different conclusion; and must declare in answer to the prayer for instruction and direction, that provision must be made for the support and education of the minor children, and grand-child of the testator, at the general expense of the whole, in any scheme of division *181which may he adopted. As I have come to this conclusion against the concurrent opinion of all the counsel in the cause, and the adult defendants do not wish' to appear contesting for their own interests against their minor .brothers and sisters, I suggest to the complainants that it is entirely in their power to bring the point before the Court of Appeals, without compelling the adult defendants to assume a position of hostility to the interests of minors, and thus affording the parties an opportunity for further argument and consideration upon a question seriously affecting the interests of all.

It is ordered that it be referred to Master James W. Gray, to take the account of the executors of their administration of their testator’s estate, and to report thereon; also to ascertain the amount which each of the legatees and devisees is entitled to receive as his or her full share of the testator’s estate, upon a final division and distribution thereof. Also to inquire and report what amount should be annually allowed for the support and education of each of the infant defendants, and the amount which each child’s share should annually contribute to make up such allowance; and a plan for providing the prompt and certain payment of such contributions after the division of the estate, so that the executors may be discharged of their trust as executors, and thereafter act and be accountable only as guardians of the minors, with leave to report any special matter which may seem to him fit to be brought before the Court.

Copt Will.

*State of South*Carolina:—

I, Jonathan Lucas, of Charleston, do make and ordain this to be my last will and testament:

1. I give, devise and bequeath all my estate and property of every kind .unto my executors, or such of them as shall qualify upon this my will, and to the survivors and survivor of them, in trust, that they shall manage and conduct my *182mills and planting establishments, by such fitting agents, and in such manner as they shall deem most for the advantage of my family, until all my children shall marry, or attain twenty-one years of age, or until my last surviving minor child shall depart this life, and in the meantime my said executors shall apply the nett income to the payment of my debts, and to the support and education of my children who may be unmarried and under twenty-one years, and also to the support and education of the child or children of any of my children who have already died or who may hereafter die 'before the time appointed for the division of my estate: the surplus income, if any, to be applied at the discretion of my executors, to the advancement of my other children who are or may become adult, or to be invested and abide the final distribution of my estate. .

2. When all my children shall have married or attained twenty-one years of age, or when my last surviving minor child shall depart this life under twenty-one — in case that should happen to occur — then my executors shall divide and apportion all my estate as it shall then stand in equal parts among all my children who shall be living when the last of my minor children surviving each other shall marry, or attain twenty-one years of age, or shall happen to die before attaining such age. But grand-children shall be substituted in the place of any parent who is now dead, or who may hereafter die, and shall take respectively the share which the parent, if living, would have taken. And my executors shall take care that the share of each daughter or of a substituted grand-daughter, shall be settled to her sole use, free from the debts or engagements of any husband she^ay marry.

3. I expressly subject each and every share given as aforesaid, to the following limitations: that is to say, in case any of my children shall die without leaving issue living at the time of its decease, or in case such issue of any child shall *183die unmarried and under twenty-one years of age, the share of such child shall revert to my estate, and be equally divided among my other children living at the happening of such contingency, or in case of the death of any child having issue alive at the happening of such contingency, such issue to represent the deceased parent and to he entitled to take a share in common with the other children. And the same rules shall apply to every accruing survived share as to the original one, and all these limitations and conditions shall apply as well to the share of my daughter who has already died and hasJéSUssee. as also to any others of my children who may die eif

4. I appoint my executors to he gu children, and authorize them to expen whatever sums they may see fit; and children have had the benefit of their ed the charges for the maintenance and minor children shall be borne by my general not be charged to the separate account of the children.

5. I authorize my *executors from time to time to make*advancements to my children, to an extent not exceeding the presumptive share of each, and to deliver the possession and control of the same to any child at any time they, the said executors, shall see fit. Such advancements, however, together with all which may have been made by myself, shall be charged against the shares of each child to whom the same may have been made, and shall constitute a part thereof in the final division. The advancements which may be made to any daughter, shall be settled in manner already declared ; and I expressly exonerate my executors from liabilities for any waste or loss which may accrue to any advancement or share delivered in pursuance of this my will; and I also declare that they are to be indemnified by my estate for every liability, loss or expense incurred, and shall be held accountable for no errors of judgment in their conduct as executors and trustees.

*1846. I authorize and empower my executors to sell and convey any portion of my estate which they may deem expedient, either for the purpose of paying debts or making a division, or in the conduct or management of the business; and if, in their opinion, circumstances should require a division of my estate, in whole or in part, before the period which I have named, I fully authorize my executors to make such division and to deliver the property into the hands of the legatees and devisees, such property, however, to remain subject in their hands to the limitations already declared.

7. It is my desire that my Middleburgh plantation and negroes, with the appurtenances, should, if possible, be kept in my family. I therefore authorize and empower my executors to sell and assign the same to some one of my children, such as the said executors shall deem best, and in order to enable such child to pay for the same, the executors shall fix upon the property what they consider a fair price, and may make the terms of sale such as they may deem most advisable to effect the object in view; and they shall be authorized to assign to any other of the children, in part or in entire satisfaction of their shares, as the same may reach, so much of the bonds or securities taken for the purchase” as they may deem expedient.

8. I appoint my friends, William Lucas, 0. Gr. Memminger, and W. J. Bennett, to be executors of this, my will; and I authorize a majority of those of them who may qualify and be alive, to do all the acts which my executors are hereinbefore authorized to do; and if there be but one, then I authorize that one ; and I do hereby revoke all other wills by me at any time made.

Witness my hand and seal at Charleston, this 25th August, in the year of our Lord one thousand eight hundred and forty-seven.

[Signed] JON. LUCAS., [seal.]

*185The executors, agreeably to the intimation of his Honor, appealed from so much of the decree as declared “ that provision must he made for the support and education of the minor children and grand-child of the testator at the general expense of the whole, in any scheme of division,” and also so much thereof as directed a reference for that purpose, on the grounds:

First. Because the division of the whole estate during the minority of any of the children or grand-children of the testator, was left by him to the sound discretion of his executors, whose decision to divide the whole concludes the question and necessarily casts the support and education of the minors upon their respective portions only.

Second. Because the whole scheme of the will is based upon such a discretion in the executors, and the necessity of a provision for the support and education of the minors out of the general estate, would in effect be tantamount to a denial of the exercise of such discretion, as such provision is wholly inconsistent with a final partition.

*McCrady,*for appellants.

*Campbell, Blanding,*contra.

Per CuRIAM.

We entirely concur in the decree; and it is ordered, that the same be affirmed, and the appeal be dismissed.

Johnston, Dunkin, Dargan, and Wardlaw, 00., concurring.

*Decree affirmed.*