#### John T. Rivers *vs.*Martha S. Rivers, et al.

Testator having a wife, five sons, the eldest of whom only was of age, and three single daughters, who were his three younger children,’ made his will, by which he directed his tract of two hundred acres of land to be reserved during the life time of his wife ‘as a residence for her and any of his daughters who may remain single,’ and his executors, when they might deem it necessary ‘ to divide his property equally among his wife and children;’ and by a codicil executed on the same day, he directed certain negroes by name with their families ‘to be reserved as the attendants on his wife and younger children.’ The negroes directed to be reserved were about seventeen in number at the date of the will in 1840. In 1856, the children had all arrived at age and were living apart from the widow, who resided on the tract of land reserved, and the negroes had increased to twenty-seven *:*— Held, that the widow was entitled to the services of only so many of the negroes as were necessary as attendants upon herself; and that although the children could not demand partition of the rest during her life time, they were entitled to divide the hire equally with her.

BEFORE DAR,GAN, OH., AT CHARLESTON, JUNE, 1856.

DaRGAN, Oh. George A. 0. Rivers died 6tli of August 1840, leaving unrevoked his -will, 'which is- in the following words: “I wish the two hundred acres of land purchased from Mr. Benjamin Reynolds, reserved during the natural life-time of my beloved wife, as a residence for her, and any of my daughters who may remain single. When my executors deem it necessary, to divide my property, equally among my wife and children, to share alike. The' property which I have already given my son Robert, shall be considered a portion of which he is entitled from my estate. I appoint as my executors, H. Wilson, Jr., John Hanahan, and S. King.” On the same day, the testator executed a codicil, in *204words as follows: “I desire my servants, James and Ms family, Marcli and Ms family, excepting Ms son Caesar, Binah'and her daughter and husband Jemmy, to be reserved as the attendants on my wife and younger children.”' This is the whole testament. It is brief and obscure, and the testator has left a great deal to implication.

The estate mostly has been divided, according to the directions of the will, equally among his wife and his children. The two hundred acres bought of Benjamin Reynolds have been reserved as a dwelling place for the testator’s widow, and is still in her possession. The negroes directed by the testator to be reserved to attend upon his wife and his younger children, were also excluded from the division, and went into the possession of Martha S. Rivers, the widow, where they still remain. They were domestic servants, and employed' as such by the testator in his life-time. They were at the time of the division, eighteen in number; they are now twenty-seven. The family of the testator, at his death, were as follows: Ms widow, Martha S. Rivers, who was his second wife, and eight children, the issue of his first wife, as follows: Robert Rivers, born 7th February, 1814; Benjamin Rivers, born 23d July, 1820; Cornelius Rivers, born 19th September, 1824; George "W. Rivers, born 29th January, 1827; J. Townsend Rivers, born 6th March, 1829; Mary Emily Rivers, born 17th January, 1831; Harriet Rivers, born 20th October, 1832 *{who died*13th September, 1840), and Eliza Rivers, born 9th July, 1834. Of these, the first-named, Robert Rivers, was the only child of the testator who was twenty-one years old at Ms death. The testator’s three daughters were his youngest children. For a while after the testator’s death, all the children continued to reside at the homestead, which had been given to the widow for her life, except Robert, who was of age, and was settled off to himself; and probably two of the sons, who were at college, or at school. As they advanced in age, and engaged in the active duties of life, they one by one left the *205widow’s mansion. Mary Emily Rivers married; Harriet died; and Eliza the- yonngest child, and the only surviving *unmarried*daughter, being now about twenty-two years of age, has also withdrawn from the widow’s residence, and has provided elsewhere a home for herself; and the latter is left entirely alone. The negroes reserved from the division, now twenty-seven in number, being more than she needs, or desires as personal attendants, she employs for the most part in agricultural labor. Such are the circumstances of this case, some of which may be legitimately invoked to aid in the interpretation of this will.

The plaintiff, who is one of the.testator’s children, the fifth in the order of birth, has filed this bill against the widow, and the other surviving children, for a partition of the said reserved negroes, and their increase, equally among the widow and the said surviving children. His construction is, that “ younger children” means children under twenty-one years, and that when the youngest child attained that age, the negroes were subject to partition. The widow, on the contrary, contends that the will gives her a life estate in the negroes, subject to a joint use by such of the younger children who may choose to reside with her. This latter construction I adopt, though I have not that confidence in my judgment that I felt at one time during my investigation of the case.

When a testator says, “I give a negro, or other chattel,” without qualification he gives the absolute estate in such negro or chattel. When he gives a negro to his wife, as a personal attendant upon her, I presume that he means this personal attendance shall continue as long as such attendance can be personal — that is, during life, unless he in some way restricts its duration within a shorter period. I am not authorized by any thing contained in the will, to say that this attendance shall cease at any period during her life. When is the attendance upon the widow to cease? The *206complainant says, that it is to cease •when the youngest child of the testator attains the age of twenty-one years. But the testator has not said so; nor has he indicated any other period at which the use of the negroes by his wife should cease. Therefore, as it is plain that he did not intend to give her the absolute estate in them, I infer, that he intended her use of them to continue for her life. I do not think that the joint use of the younger children affects her interest as to its duration. The term, “younger children,” is vague. It does not necessarily mean children in a state of minority. My construction is, that the testator contemplated a permanent arrangement for his widow during her life, in the use of these negroes thus withdrawn from the division, which were also intended for the joint benefit of such of his younger children as should live with her, and in her family.

Having arrived at the conclusion that the testator’s widow takes an interest for life in the use of the negroes, the fact, that they have multiplied beyond what is necessary for personal attendance upon her, has no material bearing upon the construction. That is an accident. The increase must go with the original stock. It was a matter alone for the testator. He overlooked the contingency, and made no provision for it. It was a *casus omissus*on his part, which the Court cannot supply.

Nor can the manner in which the negroes are employed enter into the consideration. They were given to attend upon her and the younger children. The younger children are gone — voluntarily withdrawn from a position in which they can have a joint personal use. The negroes rightfully remain with the widow. If she, like an Oriental princess, should choose to have the twenty-seven negroes (their present number) in attendance upon her person, there is none who has a legal right to question it. And if she chooses to waive this right of personal attendance, and more rationally and profit*207ably employs the negroes in agricultural labours, sbe alone is entitled to the profits of their labor. This is the conclusion. at which I have doubtingly arrived.

It is ordered and decreed that the bill be dismissed.

The complainant appealed and moved to reverse the decree on the following grounds:

1. That the reservation of the negroes in the codicil to the will, as “ attendants on testator’s wife and younger children,” conferred upon complainant an equal right to, and interest in, that property with testator’s wife; and the exclusive appropriation by her of the services and profits of all the slaves, renders her liable to account to complainant for his interest therein.

2. That the reservation in the said codicil being for the joint benefit of the wife and younger children of testator, the benefit intended becomes impossible, and at an end either upon the children attaining their majority, or upon the dying of the wife; and the property so Reserved is therefore subject to distribution.

3. That the decree is in other respects contrary to law and equity.

The defendants, Robert Rivers, Benjamin R. Rivers, Gr. W. Cooper, assignee of Cornelius A. Rivers, G. *W.*Rivers, Mary Emily Seabrook, and her husband *W.*H. Seabrook, and Eliza Smilie Rivers united in the above grounds of appeal.

*F. D, Bichardson, Cooper and Bivers,*for appellants.

*208The ©pinion of'the Court was delivered by

WakdlJlW, Ch.

George A. 0. Rivers, of Wadmalaw, died August 6, 1840, leaving a will and codicil, both bearing date August 5, 1840, written while he was *in extremis*— the former by his overseer, and the latter by his attending physician, and attested by these two persons and a third neighbor. The operative words of the will are the following: “ I wish the two hundred acres of land, purchased from Mr. Benjamin Reynolds, reserved during the natural lifetime of my beloved wife, as a residence for her and any of my daughters who may remain single. When my executors deem it necessary to divide my property, equally among my wife and children, to share alike, the property I have already given my son Robert shall be considered a portion of which he is entitled from my estate. I appoint, as my executors, H. Wilson, Jr., John Hannahan and S. King.” And the operative words of the codicil are: “ I desire that my servants, James and his family, March and his family, excepting his son Caesar, Binah and her daughter, and husband Jemmy, be reserved as the attendants on my wife and younger children.” Upon the death of testator, his immediate family were a widow, Martha S. Rivers, and eight children by a former wife. Of these children, the elder five were sons and the younger three were daughters-All of the children were then under the age of twenty-one years, except the eldest, Robert, who was living on land of Ms father, in St. Paul’s Parish, and to whom his father had given Caesar and three other slaves. Of the daughters, one is dead, one married, and the youngest of full age and unmarried. The widow still resides on the tract reserved, but none of the children of testator resides with her. It does not appear what was the number of slaves reserved as attendants at the time of testator’s death, but in Eebruary, 1843, they were eighteen, and in June, 1856,. they were twenty-seven. Some of these are employed in agricultural operations.

This bill is instituted by the youngest son of testator (this *209son being eleven years and five months old at his father’s death), against the widow and surviving children of testator, for partition of the reserved negroes equally among said widow and children. The bill proceeds on the assumption that the will provides for the distribution of these slaves on either of two events, the attainment to full age of the youngest child, or the death of the widow. His brothers and sisters substantially adopt the plaintiff’s bill, and concur in its prayer, but the widow insists that, according to the proper intepretation of the testamentary papers, she is entitled to a life estate in these slaves, subject to a joint use with such of the younger children as may reside with her. The Chancellor adopted, doubtingly, the construction suggested in behalf of the widow, and dismissed the bill, and the children of testator appeal from his decision.

Much of the reasoning of the Chancellor is entirely satisfactory to us. Still we prefer a construction of these brief and obscure testamentary instruments somewhat different from that he has adopted.

The testator has effectually expressed his intention to give his estate generally, in equal shares, among his wife and children. His direction to his executors so to divide his estate, plainly amounts to a donation of the fee to the wife and children, as tenants in common with equal interests. *Bankhead*vs. *Carlisle,*1 Hill, Ch. 357. The executors, however, were directed to divide the property when they might deem it necessary, and this direction, by necessary implication, conferred on them authority to make partial divisions from time to time, always preserving the fundamental principle of equality. Testator chose, however, to make some express reservations for the benefit of his wife and more helpless children, and to this extent to limit the discretion of his executors, for a time, in making division. By the will, he reserved a tract of land as a residence for his wife and for his daughters remaining single, during the life of his wife; and by the *210codicil Re reserved certain slaves as attendants of Ms wife and younger cMldren. In neither of these reservations is any estate actually given, and the property reserved is left subject to the general disposition in equal shares, although the privilege of using it for specified and temporary purposes is given to favored legatees. There is a difference in the language of the two reservations, which is not surprising, as they were written by different scriveners — the former fixing a period for the use, the life of the wife, and naming the unmarried daughters as recipients of the use in common with the wife ; the latter fixing no time for enjoyment of the privilege, and mentioning the wife and younger children as the persons to be favored. But it is at least probable that the intention of the testator was identical in both as to time and objects. The codicil may be well considered as a mere appendix to the reservation in the will, and, as intended, adding new subjects for the benefit of the same persons and for the same time. Construing the codicil by its context in the will, we suppose that suit and service of the reserved slaves are inseparably connected with residence on the reserved land. The benefits are to be enjoyed in common and at one place. No advantage of one over the others, the widow or daughters remaining single, is intimated as to residence in the reservation of the will; nor any advantage as to the attendance of the servants, between the widow and younger children, in the codicil. Naturally the widow, as head of the household, in any contest between herself and the younger children as to residence and attendance, would deserve favorable consideration; still she has no title in these respects absolutely superior. If, for any cause, she should remove from the homestead, her removal would forfeit her right to the attendance of the servants, but not impair the right of the single daughters to residence and attendance. So the removal of the younger children would forfeit their right to attendance, and not affect the widow’s claims to both benefits.

*211Ye have intimated onr opinion that the phrase “younger children,” in the codicil, means the daughters of testator; but we reserve the point from judgment, as the daughters, by making common cause with the plaintiff, adopt his construction of the meaning of “ younger children.” It is suggested, that if we would hear the testimony of the attesting witnesses, as to the parol declarations of the testator at the time these papers were executed, concerning his purposes, all doubt on this point would be removed; but such testimony is palpably incompetent, and in violation as well of the statutes requiring wills to be in writing, as of the principles of common law inhibiting explanation of written instruments by verbal commentaries of the makers. A will must be interpreted by the words used therein, although it is quite proper to ascertain the application and meaning of the words in the light of the circumstances surrounding the testator when it was executed. Thus, when we find, in this ease, that the younger three children of testator were infant and unmarried daughters, and his other children sons; that, in the context, he gives a privilege of residence to these daughters while single, and no such privilege to the sons; and in the text adds, probably in promotion of the comfort of the residents, the attendance of certain servants on his younger children, — it might be legitimate to conclude, that the testator meant his daughters by the phrase “ younger children ” in the codicil, but it would be altogether against principle to ascertain by extrinsic proof that such was really his meaning. The term “younger” is comparative, and when applied to a class is satisfied in meaning by any division of the class into two parts, with respect to age. The phrase “yottnger children” has been frequently submitted to judicial interpretation, and the course of decisions demonstrates, that it admits of great latitude of construction. In England it has been held to include children who do not take the family estate, whether younger or not, as in the case of an eldest daughter or an eldest son unprovided for, and to *212exclude a child taking the estate, whether elder or not, as in the case of the youngest child, who happens to be a son, entitled to take the estate. In this State, where the law of primogeniture is abolished, and all children are equal distributees of the estate, we should hold generally, according to the natural import of the terms, that younger children are all the children except the eldest, but that the context may easily deflect the import of the terms-. 2 Jarm. Wills, 84 (116). But this is enough, and too much, on a matter reserved from absolute judgment.

We agree with the Chancellor, that the widow is entitled to attendance from the slaves reserved so long as she resides at the home reserved by the testator, — during her life, if she continues to reside there. It may be repeated, that no estate is given to her, and no preferable privilege in the use of these slaves over the younger children, except such as may be inferred from her position as head of the house; and that this privilege is to be enjoyed by herself and the children at the homestead. For is any exclusive use of the slaves intended to be reserved for kter; the younger children have a common right. It seems to us, that the reservation of the slaves was made for a special purpose — attendance upon the persons or in the household of those for whose benefit it was made — and that no title to the slaves for other purposes, such as employment in agricultural pursuits, was intended to be conferred. A stock of slaves was set apart for the purpose of securing this attendance, but there was no bequest of the slaves to those who were to be waited upon. It is analogous to a case where, without gift of the fund to the children, a fund is provided by a testator', out of which they may be maintained and educated. In *Whilden*vs. *Whilden,*Riley, Ch. 205, we have express authority, that in such case the children are entitled to so much only of the fund as may be necessary for their maintenance and education, to be varied, under the direction of the Court, as the exigencies of the children may *213require. Chancellor Harper says, “A direction for maintenance means, of course, what may be necessary for maintenance.” And further: “ Suppose the fund were large enough to produce an income more than double what was required for the maintenance of the children, can it be supposed that they would be entitled to divide the whole income, when nothing but maintenance is provided for ?” The Chancellor quotes the cases of *Rawlins*vs. Goldtrap, 5 Ves. 440, and *Maborly*vs. Tarton, 14 Ves. 499, which seem to support his views. The present case is considered to be within the principle of *Whilden*vs. *Whilden.*

It is not meet, however, to grant partition of these slaves, or any of them, in the present posture of affairs. Whenever partition be made, the shares of the wife and children must be equal; and if the widow have no need of all the slaves as attendants, partition of the income arising from the supernumerary slaves must be made on the same principle. The inexpediency of partition of the *corpus*now, is demonstrable from the fact that the widow is entitled to have so many of these slaves as she needs, as attendants upon her, and her need in this respect will vary according to the change of her circumstances and of the condition of the slaves. It may be that all, or half, or one-fourth, of these slaves are now necessary to proper attendance, and that a greater or smaller portion will be required next year. If a specific number was assigned to her for this .purpose, it might happen that, by death of the slaves, or some other casualty, this number would become, in event, quite insufficient.

It is ordered and decreed, that the circuit decree, dismissing the bill, be set aside, and that it be referred to the Master, to • inquire and report whether all the slaves in question be necessary as attendants on Martha S. Rivers; and if all be not necessary, whether the surplus should be left in her possession, on reasonable hire, or be otherwise let to hire.

Johnstost and DuirKiN, 00., concurred.

*214DargAN, Ch.,

dissenting.

I am not satisfied with, my own construction of the will of George A. 0. Rivers. Such are its obscurity and informality, that I doubt if any construction .that can he given would be wholly free from objection. But I feel myself called on to protest against the interpretation adopted by this Court.

If there is anything clear in the will, it is that the testator intended to make a provision for his wife, and he has designated with great particularity the property, real and personal, which was to constitute this provision. And it is equally clear that this provision (both as to the real and personal estate) was to continue for life. So many negroes (by name) were set apart as “the attendants of” his wife and younger children. These were seventeen in number at the testator’s death, including the large and the small. By natural increase they now amount in number to twenty-seven. This number of domestic servants appears out of proportion to the widow’s circumstances and situation. And for this reason, and for no other that I can perceive, the Court now orders a reference to the Master, to enquire and report whether a less number of negroes than those given by the testator would not be sufficient for attendance upon the testator’s widow. This, I think, is emendation, and not construction, and it will be so considered. I have no doubt that the Court can make a clearer will than that which the testator has made. But the Court has no power to make alterations and additions, and it is better that an unreasonable will should remain intact, than that the power of the testator over the testamentary disposition of his property should be abridged. Of course the Court will disclaim, and does not act upon, any suck authority or power; but the effect is precisely the same.

If the provision for the wife had embraced only a few negroes, it would not have been disturbed. But seventeen negroes, for domestic servants, seems to be too large an establishment for this widow; more particularly, as by natural *215increase the number has been magnified to twenty-seven. Tbe increase is accidental, and is a state of things not anticipated by tbe testator, and does not constitute any proper ground for tbe interference of tbe Court, in reducing tbe provision made by tbe testator for bis widow.

Tbe testator gave tbe mansion in wbicb be resided, witb two hundred acres of land, as a home for bis wife and bis daughters as long as they should remain single. Tbe daughters, while unmarried, took an interest, wbicb was to be enjoyed by them as residents at tbe homestead. If, being still single, they go away and live elsewhere, they have no such estate or interest as will admit of a claim or demand, on their part, for a proportional part thereof for rent. In like manner, when tbe testator gives his wife tbe domestic servants as attendants upon her and bis younger children, be obviously intended that they should be attendants upon her at tbe home which be bad provided for her; at least as long as she chose to reside there. Tbe use of these servants was intended for tbe wife, in common witb tbe younger children. Tbe latter certainly bad a right in tbe use of tbe negroes, but it was a right wbicb was intended to be enjoyed in common witb tbe widow. When they left tbe homestead, each pursuing bis or her own scheme of life, they bad no such interest or estate as could be separated from that of tbe widow, or wbicb they were entitled to enjoy in severalty. If one bad, it is clear that each bad. Yet, if I understand it, tbe present decree of tbe Court looks to a separation of the interest of the parties in some portion of tbe property, if tbe report of tbe Master should, state that tbe widow did not stand in need of all of these negroes. Tbe testator having given tbe use of these negroes to bis wife, as personal attendants upon her, I do not perceive upon what just principle tbe Court can proceed to enquire whether there are too many negroes for her needs, and if they should be found to be too many, to decree that she should be deprived of some portion of tbe provision *216which the testator has made for her. Admit that the number of domestic servants is too large for the present establishment of the widow, when was such a circumstance ever known to authorize the Court to trench upon the will? When was such a circumstance known to control the construction of a will ? This decree looks to an interference with the provisions of the testator, which to me appears to be in the highest degree improper, and it is for this reason that I have felt it to be my duty in this form to express my disapprobation and dissent.

*Decree reversed.*