Opinion
(June Term, 1838.)
Where a testator directed his property to be kept together, and his family supported out of it, under the government of his wife, and that no expenses should be charged to his children while they remained at home, and that his sons should, in the final division of his estate, account for expenses they might incur after leaving home to acquire professions, and that an equal division should be made when his youngest child attained full age: Held, that a daughter who left the family after she attained full age was not entitled to maintenance.
MOSES MANNING died in 1834, leaving a widow and nine children, all of whom were living. His three eldest children were sons who had arrived at full age, and were engaged in the exercise of professions and trades, for which their father had educated them. His two next children were daughters, both of whom attained 21 years since his death; the elder of these, Mary, was married and the other, Margaret, the plaintiff, had, since her arrival at 21 years, resided with her sister. These were the testator's children by a former wife. Richard, the eldest child of the wife who survived him, was not of age, but had been sent abroad to learn a trade, and there were three children under age living with and under the government of their mother. Moses Manning duly made a will whereof he appointed his wife sole executrix. She renounced the office, and dissented from the provision made for her in the will as insufficient. The administration of the will was then granted to the defendant. The will, after giving some small specific legacies, and entering into details which do not bear upon the case, directed that the whole of the testator's estate should be kept together as one joint stock until his son Thomas (the youngest child) should arrive at 21 years of age, or during his wife's life or widowhood, and then to be equally divided between all his children; that in the division his three eldest sons should account, as for advancements, for all that had been expended on them after they left home to get professions and until they reached 21 years, of which the testator left precise statements in his books, and that the same should be done with regard to what might be expended on his other sons after leaving home. The testator then directed that no expenses should be charged to any of his children while they remained at home, and further declared that he left the whole of his estate and the government of his family to his wife. The bill stated that the plaintiff (12) had left her stepmother and gone to live with her sister; that she needed an annual allowance for her support, and that upon a fair construction of the will she was entitled to receive such out of the fund which the testator had directed to be kept together for future distribution.
Augustus Moore for plaintiff.
M. Haughton for defendant.
The administrator submitted that after the arrival at full age and leaving the widow's family, the plaintiff was not entitled to an allowance for maintenance.
It is plain, we think, that the "home" mentioned in the will is that household of which the testator was the head while living, and the government whereof he committed to his wife upon his death. We think also that the clause whereby the whole of his estate is left to her must be interpreted as vesting her with the disposition of such part of its income during the period she remains head of the family as is necessary for the benefit of the members that compose it. As to his sons, it is obvious that the testator did not contemplate them as continuing members of the family after reaching full age, and that he provided for an anticipation of their portion in case of leaving home at an earlier day. It is not so certain what he contemplated with respect to his daughters on their attaining full age — whether he took it for granted that they would cease to be members of the family, or meant to leave them the option of still continuing such if they pleased. But the provision that his children shall be maintained is expressly limited to the period during which they shall remain at home. When emancipated from its restraints they are no longer entitled to this privilege.
The dissent of the wife has necessarily broken in upon some of the arrangements in the will. But as the consequence of that dissent was but to obtain for her a provision in addition to what was given in the will, it cannot have the effect of changing the dispositions for the nurture, care, and education of the children. All of the profits of the fund not wanted for this purpose must accumulate and fall into it until the period of division arises.
The bill is dismissed; but it is a hard case, and is therefore (13) dismissed without costs.
PER CURIAM. Bill dismissed.