[Present, Chancellors Rutledge, Marshall and James.]

#### Ralph and Georgiana Izard, Minor Children of Ralph Izard, deceased, and Thomas Loughton Smith and Ann C. Smith, Minor Grand Children of R. Izard, by their next friend, W. L. Smith, *vs.*the Executors and Legatees of Ralph Izard, deceased.

*309The word children used in a will, shall not be construed to include grand children, unless a strong case of intention or necessary implication requires it. Maintenance and education directed by the will to be given- to minor children must be provided out of the residu-aiy estate.

JUNE, 1805.

THIS was a bill filed to obtain education and maintenance for two of the grandchildren of the late Mr. Ralph Izard, out of his estate generally, under a clause in his will providing maintenance and education for some member of his family, and also to procure a fund for the support of those directed to be so educated and maintained.

The bill sets forth that Ralph Izard, father and grandfather of complainants, died 30th May, 1804, leaving a will, wherein among other things he devised “ all the residue of his estate to all his children then living, and the children of his deceased daughter Charlotte (they standing in the place of their mother and taking the share to which she would haVe been entitled if alive) to them their heirs, &c. to be equally divided among them; if any-of his children should die before him, their children to represent *them;*and directed that his children should receive their respective proportions at the age of 21, or marriage ; and in the mean time be educated and maintained out of his estate, at the discretion of his executors.” That complainants by their guardian, have called on defendants to allot and designate a fund out of testator’s estate for their maintenance and education by the said will, and to specify and ascertain the amount and sum at which they mean to limit the same." That defendants refused, pretending that it was not testator’s intention that said maintenance and education of said minors, should be a charge on his general estate, but charged to the separate fund and estate of each minor, which they are entitled to as aforesaid ; and also pretending that although such should be declared testator’s intention as to his own children, yet it was not his intention to extend said benefit to his grandchildren ; (the children of his daughter Charlotte,) whereas *310the complainants, Thomas Loughton and Ann Caroline Smith, (the children o. said Charlotte,) aver that it was intention of their grandfather to extend such benefit to ° . them also, which appears from his having designated no period at which the portions of his said grandchildren should be *paid;*whence it results, that they are virtually and specifically included in the same clause of his will which fixes the period of marriage or majority for the payment of the portions to his children, and that it was his intention to place his children and grandchildren on the same footing, in respect to maintenance and education. Bill prays that defendants may assign and set apart an adequate fund for the maintenance and education of complainants, including therein the expences of education and maintenance of complainants Thomas Loughton Smith and Ann Caroline Smith.

The answer of the executors and legatees of Ralph Izard admits all the facts stated in the bill, but diffi rs from the complainants as to the conclusions drawn from them. That as to the complainants Thos. L. Smith and Ann C. Smith, the grandchildren of testator, by his deceased daughter Charlotte, they cannot conceive he intended to include them in the clause of the will last recited in said bill, because he has therein used the word children and not grand *children;*and that the said word children has never been held to signify grandchildren unless in compliance with the clear intentions of testator. That here such intention does not appear, because testator in the preceding clause of said will, has used the word children as a term different from that of *grandchildren;*and by applying the former to his own offspring, and designating the others by the terms “ the children of my deceased daughter,” he shews that he was aware of the distinct;. ; besides by placing his grand children in the stead of their parents in the preceding-clause he shews an intention of equality, which would be defeated, if the word children should be construed grand *311children. That the argument in the bill is drawn from omission in the will, which is stronger than one drawn from expression; and the rule requires that the intention should be manifest, and puts the *onus*on the party alleging. That the law designates the time for paying the portions, though it must be admitted that it was far more natural to testator to be looking’to his own children.

Defendants insist that strong evidence of testator’s intentions results from the clause last recited in bill, to shew that the grandchildren are not entitled to education and maintenance out of his estate, exclusively of the portions allotted to them, because the same is given expressly at the discretion of his executors, a mode he had a right to impose on his own children, whereas his grandchildren having their father alive, he was the best judge of the mode and stile of their education and maintenance, and (although he is also an executor,) such an interference with his children could not be intended.

As to the other point embraced by the bill, that defendants designate a fund out of testator’s estate for the education and maintenance of his own children, defendants submit to the court, and pray a decision as to what estate testator alluded by the words “ out of my estate,” Whether his estate at large, his residuary estate, or-the portions of said minors, in such residuary estate: and as to the limit of such expenses, they are willing to be controuled by this court: and as to the costs of this suit, being amicable and intended to apprize all parties of their rights and duties, they submit whether the same should not be paid out of the estate of testator.

At the hearing of the cause, it was argvied for the complainants, the grandchildren, that the generic term children, includes grandchildren. That the two grandchildren in question had lost their mother, lived with their grandfather and grandmother, and were treated and considered as children. The direction that his children should receiye their respective proportions at the age of 21 or *312marriage, (which undeniably applies to the. grand children as well as the children) is inseparably connected with the rest of the sentence, which goes on to provide, that in the mean time they should be educated and maintained out of estate, at the discretion of his executors.

That with regard to the fttnd, out of which maintenance and education is to be -provided* it is clear that it must be out of the residuary estate;

For the defendants, it was argued that the force of the word children, does not generally reach or extend to grand children. It must be shewn to have been-the special intention of the testator to include grandchildren under the word children. And this intent tniist appear on the face of the will., 4 Ves. jun. 698.

It is true that children may titean grandchildren, when there can be no other construction. 2 Yern. 107, 8. See also Ambler, 603, 4, 555, and 4 Yes. jun. 437. But no necessity exists in this case for such a construction.

The testator distinguishes between his children and grandchildren, and desires the latter to take the share of their deceased mother. ’

The education and maintenance is to be at the discretion of the executors. But the grandchildren have a father living, who alone had the right to control and regulate the education of his children.

As to the fund for the maintenance and education of the minor children, it is contended for the defendants that the same should be paid out of their portions and not out of the residuary estate, for that is so disposed of as to shew a different intent.

Chancellor Rutledge

afterwards delivered the decree of the court:

Upon a careful review of the testator’s will, it evidently appears that he knew perfectly Well how to distinguish between his children and grandchildren in the several bequests of his will. Cases may be found in the books where grandchildren have been considered as children, where *313there has bepi an ambiguity of expression in the testator’s will, which rendered it absolutely necessary, and without such construction, the testator’s intent could not be otherwise satisfied: but that is not the present case, and we think it would be a most stráined construction in deed to say that the word children in the bequest, before the words of maintenance and education, meant to include grand children.

Smith and Bacot and Besaussure for complainant.

.Paiiker andLiGHTwooD for defendant.

The testator having directed that his minor children should be educated and maintained out of the profits of his estate, that expense must be defrayed out of the residuary estate at large, that being'the fund usually applied to the payment of debts and legacies.