[Pi*esent, Chancellors Ruteed&e, James and Thompson ]

MAY, 1806.

#### Ann Mackie, Widow of James Mackie, *vs.*William Alston and others.

Testator makes sundry provisions for his wife,and amongst others, be-queathes hercertainnegroes, and says I givehertheliberty to plant m/ land with hér negroes during her widowhood. The court will not confine her right of planting to those negroes only that she took un-ler the will. Testator also devises all his residuary estate, real and personal, to his daughter for ever,when she attains the age of 21 years or day of mamage, which ever shall first happen: If she dies before, he then devises over. The contingency was annexed to the estate, and so not vested. And she dying single at 18 years, her representatives take no share of the intermediate profits, &c. They go to the devisees over.

THE case made by the bill was, that Dr. Jas. Mackie, of Georgetown, died in 1795,leaving his wife, the complainant, and an infant daughter Harriet. That he left an instrument purporting to be a will, in which he gives to his wife a certain number of negroes, some cattle and horses, and *SOI.*to buy a riding chair; and also gave her, whilst she remained his widow, “ liberty to plant my land with her negroes, under the direction of my executors.”’ Also, he gave her the lise of his dwelling house, and out houses, and kitchen furniture; all of which provisions were in lieu of dower. The testator then proceeds thus, u I give, bequeath, and devise all the rest and residue of my estate, both real and personal, consisting of lands, ne> groes, horses, cattle, &c. to my daughter Harriet Mackie, and to her heirs and assigns for ever, when she attains the age of 21 years, or at the day of her marriage, which ever shall first *happen; but*if my said daughter should die before the abovementioned periods, then I give, devise, and bequeath that part of my estate which I had given to my said daughter, both real and personal, to Captain William Alston’s two sons, John and William Alston.” On the 11th October, *179S,*the testator made a codicil, in which *363he disposes of some property acquired subsequently to the making of the above will* to his daughter, in the same manner as above, and with the like limitation over. *,*

That the daughter Harriet died in June, 1804, in her 18th year, and unmarried — and intestate. The complainant, the mother, insists that the devise to Harriet was a vested interest, that she was entitled to the rents and profits of the residuary estate during her life time. That the increase of the negroes as well as of all the stock, and the proceeds of crops rightfully belonged to her; and that the complainant, her mother, under the provisions of the primogeniture act, is entitled to succeed to the moiety of her estate : that nothing goes over to the defendant’s two sons but the substance of the property under this will; and the defendant being sole executor, and having administered the estate, is liable to account with complainant for the moiety of those rents, profits, and increase of the estate between the death of the testator, and the death óf his said daughter Harriet. The complainant also states that the land assigned to her by the executor for planting, with her negroes, is of an indifferent quality, inconveniently situated, and insufficient for her negroes. That he seeks to restrict her to plant with those negroes only that she derived under the will; whereas she contends that she is not liable under the will to be so restricted, but is entitled to have land enough for all the negroes she owns.

The bill prayed an account of rents, profits, and increase, that a inoiety might be assigned to her, and that land might be assigned sufficient for all her negroes to plant.

The defendant (who was sole executor, and had also acted as guardian of the child until she died) demurred to *364that part of the bill which claimed for complainant a share of intermediate rents and profits between the death of the testator, and the.death of Harriet. He also answers and states, that during the lifetime of Harriet, he appropriated out of the proceeds of the estate, a sufficiency fop her comfortable and proper support, until her death. He denies that the land set apart for complainant to plant is indifferent or inconvenient — insists that she is not entitled to plant with more negroes than those given her in the will: but is ready and willing to comply with such designation or order as the court shall make in this respect.

- This case was argued by Messrs. Drayton, Gail-laiíd, Desaussure and F open for the complainant, and Messrs. Parker and W. L. Smith for the defendant.

For the complainant, it was contended that this devise to Miss Mackie, in the will of her father, was a vested interest, subject only to be divested afterwards in the event of her dying before attaining the age of *21*years or ■marriage. That this construction would square with the natural and obvious intent of the testator, her father, and not impugn any rule of law ; and that the contrary construction would, in effect, go to strip his only child of maintenance during the period of infancy. For if it were 'not vested, then the rents and profits were not hers ; and if so, she had no support at all. The fact that the defenr dant had supported her out of the rents and profits, is no just answer *to*this difficulty. For if such support was not of right, it was matter of charity and curtesy in the executor *;*and it would be doing violence to all natural feeling to suppose that the father, whose will plainly designates his only child as the favorite object of his bounty and care, intended to subject her infancy to such a principle for her support and education. The purpose of the testator then cannot be doubted, and it is not only the duty, but it is the invariable usage of this court so to construe a will as to effect the natural and manifest intent of the testator. *Tq*coristrue this to have been a vested estate, would be to effect this plain intent. And such construction would *365square with the principle laid down by Mr. Fearne in his introduction. “ An estate vested is, where there is an immediate fixed right of present or future enjoyment.” In this case, there was at the death of the testator, a fixed right in his daughter Harriet, of enjoying, in future, (viz. at 21 or day of marriage) the substance of the estate in possession.- The parent being bound by nature to provide for his child, is a principle that will materially influence in the construction of his will, and lead the intent of it. 2 Atk. 329. And this court gave essential operation to that principle in Heyward’s case ; also in the case of Perron- , neau vs. the Executors of Perronneau. And where rest and residue are given, there it carries a larger implication than a single legacy. 2 P. W. 419. 3 Bro. C. G. 471.— But the counsel further argued that if this was not a vested estate, then it was left *to*descend to the heir at law until the contingency should happen. That heir (under our primogeniture act) consisted of the mother and daughter, and so the complainant is entitled to one moiety, and to the half of the other moiety of the intermediate r'ents and profits. 2 Ves. 430.

As to the widow’s right to plant with her negroes, and with all the negroes she owns, there can be no pretence on which to raise a doubt. The words of the will are general, and unrestricted. This was one of the provisions in lieu of dower. This court has determined that the widow stands quasi a purchaser as to such provisions, and will extend to her the utmost benefit of construction.:— Loocock vs. Executors of Loocock. They also cited the case of Doe ex dem: Wheedon vs. Lea. 3 T. R. 41.

. For the defendants, it was contended that the intent was to be collected from the words of the will, as the testator has used them. That this is a legal estate, not devised in trust, and this court cannot indulge that latitude of construction which they sometimes do in moulding trust estates. The legal distinction between words of contingency being annexed to the substance of the devise, or to the time of enjoyment, is well known, and well established, *366and we are not at liberty to fritter away the rule by specu» lating upon what the testator might have done,'or ought to have done. Here the devise and bequest are to Harriet Mackie, when she attains the age of 21 years or day of marriage, which ever shall first happen, &c. directly placing the devise on that contingency. The case of Doe ex dom: Weadon vs. Lea, cited by complainant, was of a trust estate. Thewords “ till,” and “ until,” and “ when,” makes it a vested interest where the estate is given to trustees. But that isnot the case here.

The court will compare one part of the will with another. 2 T. R. 86. 5 T. R, 323. — And supply the defects of testators words. 3 Bro. R. 405. Now if we look to the codicil we find him to give to his daughter, &c, “ if she arrive at 21, or day of marriage.” This shews what he meant by the words he used in the will, viz. that-the gift itself was on a contingency. But it is said the rents and profits are undisposed of: That the estate cannot be in abeyance, but must descend to the heir, and the rents will go with them. But the plain intent is, that the rents and profits should accumulate for the benefit of the devi-see and legatee, when she should come into possession, or to the devisees over in case she should not. 2 Ves. 430, The counsel also cited 2 Ves. 531. 2Atk. 329,4/3. — » Cowp. 714.

As to the number of negroes, the testator had given his wife a certain number, and gave her leave to plant his land during her widowhood, “ with her negroes.” He must have intended these specifically given to her. Any other construction might give her power to plant all the land upon an accession of fortune in negro property. No line can be drawn, unless the one implied in the will. She might even hire negroes, and surcharge the land. This they contended would be a most unreasonable construction.

*

By a clause of the primogeniture act, passed in I'ebruary, 1?9 X, no lands or personal estate acquired by any person after making his will should pass thereby, unless the will should be re-published ; but the testator was to be considered as having died intestate as to such property. This part of the act, however, was repealed in 1808, so far as it relates to personal estate.

Chancellor Rutledge

delivered the decree of the court.

*367There are two questions in this case, for the considera-iion of the court, which depend on the construction of the two following clauses of the will of Janaes Mackie, viz :

“ I also give her whilst she continues my widow, and no longer, liberty to plant my land with her negroes, under the direction of my executor.” “ Item. I give, bequeath, and devise all the rest and residue of my estate, both real and personal, consisting of lands, negroes, horses, cattle, ikc.to my daughter, Harriet Mackie, and to her heirs and assigns for ever, when she attains the age of twenty one years, or at the day of her marriage, which ever shall first happen, but if my said daughter should die before the above mentioned periods, then I give, devise and bequeath that part of my estate which I had given to my said daughter, both real arid personal, to Captain William Alston’s two sons, John and William Alston.”

The first question is, whether complainant is entitled to plant testator’s land with any other negroes than those specifically bequeathed to her ? And second, whether the complainants daughter Harriet Mackie was entitled to the profits of the estate from her father’s death, to the time she died. The second question was principally argued, and complainant’s counsel contended that the estate given to the daughter, vested in her immediately, liable to be divested on the contingency of her dying Under age or unmarried. That she was entitled to the intermediate profits from testator’s death, to her own ; consequently, whatever of them remain in the hands of the executor, belong to complainant, as the legal representative of her daughter. That there being no disposition of them by the will, the daughter, to whom the estate was to go, was legally and equitably entitled to them. As a proof of that being testator’s intent, it was urged in argument, that he had made no provision for his daughter’s maintenance and education *;*unless therefore the profits of the estate belonged to the daughter, she must starve orbe dependent on the bounty of the executor for maintenance. *368Therefore it cannot be presumed that tbe testator intend*ed*to place his daughter, to whom he had given the bulk 0£ gig estate, in that predicaments

For defendant it is insisted that the estate did not vest in the daughter, but must wait until oile of the two periods mentioned in the will, arrived, viz. Her attaining twenty one years, or inaffiagei That the time of the vesting of the estate is annexed to the substance of the gift. And that not happening, the profits must accumulate and go to the persons to whom the estate is limited, on the contingency of her dying before she attained the age of twenty one years, or was married. Admitting at the same time that this being the case of a devise to a child, she was entitled to maintenance, though no provision was made for it, and that a liberal one had been made by the executor.

A variety of cases contradicting each other, have been cited by the counsel on both sides, in support of their respective clients; It is a circumstance much to be regretted that such contradictory decisions' should take place, for it is impossible they should be both right. The contradictions can arise but from two causes, either the judges differing in opinion, or the mistakes of the reporters in the reports of the cases. The number of the cases however on either side of the question, is not the true criterion by which the court is to determine it; but the intention of the testator, as it can be collected from the whole will, is the only sure guide for the court.

This is an extreme hard case on the complainant, and the court have been much disposed to grant the relief prayed for. They have perused the will with the strictest attention, desirous of finding if possible, some words on which' to found a decree in *favour of*complainant, thinking it scarcely possible, that it could be the testator’s intention to give away nearly the whole of. his estate in case of the death of his daughter, under age or unmarried, to persons whom he knew little of, was totally unconnected with, and absolutely strangers to him, in preference to his wife. Such however is the case. The *369words he has used in the will aad codicil, are so strong to ,shew that the time the devise was to vest, was annexed to the substance of the gift, as to leave no room in the mind to doubt of his intention. The words “ when” and “ if,” are not to be got over. The daughter was to have the estate “ when” she arrived at the age of twenty-one, or was married. But “ if” she dies before the above mentioned periods, then the estate is devised over. The estate not having vested in her, she of course could not be entitled to the profits, but they must go over to the defendants, who are entitled to the capital. It is needless to say anything on the subject of maintenance, because she was allowed it by the executor. As to the second question, whether complainant should be restricted to negroes bequeathed to her to plant on testator’s land, the will is not *explicit; the*words are general, she shall have liberty to plant with her negroes, &c. There is no restriction as to the number; and therefore the court would not confine her to those merely bequeathed to her by testator; if she attemps to plant with others that do not belong to her, she Can be restrained by application to the court.

Although the complainant has not wholly succeeded in her application, she is nevertheless entitled to her costs, because she was compelled to come here to have the land properly assigned to her, that she was to plant. Also to have the question ascertained whether she had a right to plant with more negroes than those specifically bequeathed to her by the testator.