The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-03-29
John Hancock Admr. DC. ,
VS.. 928,
Tift1a a. Cn


after her death, and took charge of the
slaves obtained by her by means of the
assets Of the testator's estate as above
stated, claiming them as her property
that Wright was appointed administrator
at the instance, and to subserve the pur-
poses of Titus & Co., who had Judgment
against the widow individually, 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 testators death and
prays for an injunction against the sale of
the slaves levied on, and that the title
| thereto be decreed to be in the estate of
the testator.
The answer Of Titus & Co., denies any
knowledge of the claim of the testators
estate upon the slaves obtained by the
widow, or that they were acquired by ex-
change, and claim that as 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 is
entitled to an interest in the testator's
estate 10 a greater amount than he'value
of the slaves levied on. and that the debr
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
across bill, and on answer required as 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,
| II he al H.
Wright, as administrator OF the widow /;
and upon the motion Of Titus & 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. And this depend
upon the frsrand second clauses, which
indeed constitute all the disposing paris
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
or marrying to have an equal share 40
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.
mat iage With another ansaB<Sit is then
my will thatNhaRHp erty so left be equal
ly divided between her and my children"
And oouclnaea " canstit itutine hisTifannd
il bis brother, his eXeC4tofs and leasi.t lais
wife as guardian Of his children.
| AooorGin0 10 vvaIl aafflad rnlaz Of aon-
stfuction, the interests of the children,
under this will. were vested legacies, tax
ing effect in interest at the testator'~
death. Lowe VS.. Barnett 80 Missi. 329
and cases there cited. In the first cause
| the testator refers to the shares of the
children upon their coming of age or
marrying, giving them equal shares az
cording to valuation of my estate" II
no other provision had been made in the
will, it is very clear that this Language
would be held to mean, a child's share of
the whole estate, taking into the estimate
| 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 rretain all the property both
real and personal for the purposes above
named" THAT Is, raising the children, }
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 oI
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
/ g. Al -C xii
dren, and the words which Immediately
follow, "but in case Of her intermarryinl
with another person." are to be interpret
ted by this same reason of her unfitness
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 manifes
from the context.
Then follows the provision, ''it is ther
my will that the property so left be equal
ly divided between her and my children.
1t is contended that the word then" her
used. refers to the language which imme
; diately precedes it Sin case OF her inter
marriage with another person :" and tha
the widow was to be entitled to her equa
share of the estate only in case Of he
marrying again. This view is founded ol
a too literal construction of the languag'
; employed which cannot be entertained !
: the language is reasonably susceptible o
another construction. And we think
: evident that it admits of 8 different cor
: struction.
The sentence in which he speaks of he
: intermarrying with another person, al
: pears to be incomplete, and is part {
the same sentence in which he proves ths
the widow shall retain the property unit
!. the children become Of age or marry, c
during her wild ,whood. Then follows th
- clause, that the property should then
be edSiaillV- divided; being a new sentenc
!, from that preceding Il; containing theI
several provisions. In literal constfaetlo lol
= therefore the word then" may be refe
> red as we'll to the previous provisions |
to the words Immediately preceding IT,
Thus considered its meaning is, that Oh
should retain the property until the chi
dren became Of age, or should marry, {
n until she married again; and the
A. in that case, or in either case, II
$ property should be equally divided b
.e tween her and the chi iren. The speci
Al object which the testator appears to haN
had in view, in this part Of the claus
l. was to fix the time for which the wido
G. was to retain possession and keep the pr
n perty together, and when the legaci
were TO vest in possession but not to d
> fine the quality or quantity of the estat
el And it is plain that the title of the wido
s. TO her share when an equal division Of u
property should take place, was not TO d
D. pend upon her marrying again, but th
r. it vested in interest at the testatol
r death.
!; To give the clause such q construct,
!. would be to suppose that the testator
u, dulged the most unnatural and improbat
wish that his widow should marry anoth
husband, and that he offered reward
I. induce her to do so. A view entirely irl
i. concilable with the desire plainly expre
OF ed that she should retain and keep tog
OF ther the property for the purpose Of ra
" ing the children, which were then youn
until their becoming of age or marryil
IT. and during her Nidowhood. The 90
=; struction is, therefore, both unreasonabl
and inconsistent with the plainly indie
8, ted wish Of the testator.
The next question raised is, Wheth
=. the slaves levied on being purchased VA
NJ the assets of the estate, are liable % y
execution against the widow because I'M
were conveyed 10 her in her lndlvlau
lid name.
70. The only grounds upon which the siav
a are said 10 be so liable, are that the ui
th was taken in her name. and tnat u
th slaves were in her possession. bat " 2
IL pears that. though they were IN b
by possession. vet they were treated as u
le- nroperty Of the estate and il is not ale
We ed or shown that they were held out
be the world rs her property, or were 90 90
1r- sidered by the plaintiffs in the judgmen
MS or that they contracted with her on u
faith Of this property. On the eontraE
the answer alleges that the debt was co
tracted for the benefit Of the testatol
'o- estate. Under these circumstances. il
. plain that these creditors have no equi
which should prevail over that Of q