The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-03-29

against the widow individuality, and
through his aid, an execution has been
levied upon said slaves. claimed to be her
property. The bill alleges that she took
no estate under the will. as she did not
marry after the testator's death and
prays for an injunction against the sale OF
the slaves levied on, and that the title
thereto be decreed 10 be in the estate OF
the testator.
The answer Of Titus & Co, denies any
knowledge of the claim of the testator's
estate upon the slaves obtained by the
widow, or that they were acquired by ex-
change, and claim that Us the title was
taken in her name and they were in her
possession, they have right as creditors
to subject them to the payment of their
debt against her-and allege that she j.
entitled to an interest in the testator's
estate TO a greater amount than the'value
of the slaves levied on. and that the debt
on which their judgment was founded
was contracted for goods and money ad
vanced to the widow for the use Of the
/ plantation and for the benefit OF her chill
dren. the legatees. This answer is made
a cross bill, and on answer required TO
the value of the testator's estate, and the
value of the widows share of it, and whe-
ther the debt was not contracted for the
consideration stated
No answer was made to the cross bill,
nor answer filed TO the original bill by
Wright, as administrator OF the widow
and upon the motion OF Titus q Co, the
| Injunction was dissolved.
The first question presented in behalf
of the plaintiff in error is, whether the
widow took any vested interest in the
estate under the will. Aud this depend
upon the firsrand second clauses, which
indeed constitute all the disposing parts
of it. These clauses are in the following
| words 1T is my will and request that al
my property both real and personal be
kept together for the purpose of raising
| my children, also that my wife Jane "
Hancock keep all the property together
until they become of age or marry, and
in that case the one so becoming of age
1 or marrying to have an equal share ac-
cording to valuation Of my estate so left.
at is further my will that my wife retain
| all the property both real and personal
for the purpose above named until my
children become of age or marry, or dur
| ing her widowed, but in case of her inter
marriage with another person, II Is then
my will that the property sol left be equal
ly divided between her and my children,
and cczclrld es= =bY. constituting his wife and
his brother, his executors and lesazi.ss his
wife as guardian of his children.
According to well settled rules of con
| stfuction, the interests of the children,
I
I ing effect in interest at the testator'-
| death. Lowe VS.. Barnett ;58 Missi. 329.
and cases there cited. In the first causr
the testator refers to the ehares of the
children upon their coming of age or
marrying giving them equal shares &C
cording to valuation of my estate" II
no other provision had been made in the
| will, it is very clear that this languagr
would be held to mean, a child's share Of
/ 81 Ia tai int eat
| the portion to which the widow was en-
titled by law. This clause clearly does
| not negative the widows right The next
clause then proceeds to provide that his
widow should f'retain all the property both
real and personal Tor the purposes above
named" THAT Is, raising the children,l
/ until my children become of age or marry,
or during her widowhood." The reason
\ of this is manifest, that there was no ne.
cessity for her retaining the property
or keeping it together" as expressed In
| the previous clause, after they became of
age or married, but that such parties were
| then in a situation to need and receive
/ their shares and that if she married she
might become unfit to 'retain the pro
Derty' for the purpose of raising the chill
! dren and the words which Immediately
/ follow, "but in case Of her intermarrying
with another person." are to be interpret
ted by this same reason of her untitness.
/ in that event, ''to retain the property
for the purpose specified and the inten-
| ton IS apparent. that in case of such in
termarriage, she was not TO retain the pro
perty or keep it together. This idea,
though imperfectly expressed, is manifest
from the context.
Then follows the provision, 'it is then
my will that the property 50 left be equal
| " divided between her and my children
| 1t is contended that the word then" here
used refers to the language which imme-
diately precedes il ''in case Of her inter
| marriage with another person :" and tha
| the widow was to be entitled to her equa4
| share Of the estate only in case OF her
| marrying again. This view Is founded on
| a too literal construction Of the language
| employ ed which cannot be entertained u
| the language Is reasonably susceptible Of
/ another construction And we think Il
evident that il admits Of different con
| struction.
The sentence in which he speaks Of her
| intermarrying with another person" ap
pears to be incomplete, and Is part o
| the same sentence in which he proves thai
the widow shall retain the property until
the children become Of age or marry. or
during her v d ,whood. Then follows the
clause. that the property should then
be 4erffsI{g divided being a new sentence
from that preceding r. SalaInlng mere
several provisions. In literal coTistfdcl l0b
therefore the word then" may be refer
red as well to the previous provisions A.
| to the words Immediately preceding II -
Thus considered its meaning is, that shr
should retain the property until the chill
| dren became Of age. or should marry, or
until she married again and then
in that case, OF in either case, thu
! property should be equally divided be-
Z - F.a oh. I he
object which the testatOr appears to have
had IN view, in this part Of the clause,
was to fix the time for which the widow
was to retain possession and keep the pro-
[ perty together and when the legacies
were to vest in possession but not 10 de-
] fine the quality or quantity Of the estate.
( And il j. plain that the title Of the widow
70 her share when an equal division Of the
/ property should take place, was not TO de-
pend upon her marrying again, but that
il vested in interest at the testatOr' 5
death.
To give the clause such construction
would be to suppose that the testator in
dulged the most unnatural and improbable
wish that his widow should marry another
husband, and that he offered reward 70
induce her 70 do 20. A view entirely ire
concilable with the desire plainly express
ed that she should retain and keep toge-
tner the property Tor the purpose q fai7-
ing the children, which were then young
until th--ir becoming Of age or marrying
and during her widowhOod. The con
structiOn is. therefore, both unreaso nsole'
and inconsistent with the plainly indica-
ted wish Of the testator
The next question raised :, whether
the slaves levied on being purchased with
the assets Of the estate, are liable 70 the
execution against the widow because they
we're conveyed to her ia her individual
name
The only grounds apOn which the slaves
are said 10 be 80 lisble, are that the title
was taken in her name, and that the
slaves were IN her possession Bat Z ap-
pears that. though they were in her
possession, yet they were treated as the
property Of the estate and il i not alleg-
ed OF shown that they were held out 70
the world a. her property, or we're 50 con-
sidered BY the plaintiffs IN the Judgment,
OF that they contracted with her on the
faith Of this property. On the contrary,
the answer alleges that the debt was con-
tracted for the benefit Of the testator's
estate. Under se@circumstances, il is
plain that these creditors have no equity
which should prevail over that Of the