Flowers against Franklin, 5 Watts 265

The opinion of the Court was delivered by Kennedy, J. A correct solution of the question presented here js only to be got at by a proper construction of the will of the testator. In the construction of wills, the first thing to be sought after, is, the intention of the testator, which must be collected from the terms .of the will itself, ex vjceribus suis. The intention being fhus ascertained, such construction ought to be put on the will, as .shall be best adapted to carry it into effect, so far as shall be consistent with the rules and policy of the law.

It is admitted by the case stated that all that is claimed by the plaintiffs here was derived by Mrs Franklin tfi.e intestate of the defendant, from the will of the testator her husband John Franklin. The first gift to her, after giving fo his grandson Amos Franklin a part of his farm, on which he resided, is the residue thereof, together with the dwelling house, half of the sawmill and other privileges and improvements not before excepted, which he gives and bequeathes to her during her life, to be improved, for the use of the family.

He also gives all his farming utensils to his wife, to be used in improving the farm; likewise his horse and old mare together with the saddle, waggon, cutter and harness thereunto belonging, to be kept and used for the use and benefit of' the family: Also his oxen, and the residue of his cattle and sheep, to be kept on the farm for the use of the family: also his swine and the grain and corn, which he then had, to be used for the benefit of the family.

After which, he gives and bequeathes to his daughter Kezia Bp.eb.e, at the decease of his wife, the one-third part of the estate, both real and personal, which he by his will had given and thereby (}id give to his wife during her life: and the remaining two.-thirds of the personal as well as the real estate bequeathed as before to his wife during her natural life, he thereby gives and bequeathes, at her decease, to the children of his son Billy Franklin and his grandson Henry Franklin, to be shared by them and shared alike.

He then further gives his wife, for the use of the family, the one-half of the demand, he has against Michael R. Thorp, which was in the hands of B. A. Leland for collection: also, all the moneys due him, from the Cayuga and Susquehanna Turnpike Company, when collected, he gives to his wife for the use of the family, and to be applied to discharging the debts and bequests therein before mentioned.

The devise of the residue of the farm, with the dwelling house, half of the sawmill and other privileges and improvements not before excepted, appear to be the only things given to his wife, among those just mentioned, which are expressly limited to her for life, except the clause in the will, by which he gives thqse things over after the death of his wife, whereih he directs that “ the one third part of the estate both real and personal which I by this my last will and testament have, and do hereby bequeath to my wife, Abigail Franklin during her natural life” is to be considered as being used by the testator for the purpose of limiting all the personal estate, given to her by his will, for the use of the family, to the term of her life.

That the testator must have intended that the personal property given by his will to his wife, which should not have been consumed by use in her lifetime, should go over, at her death, to his daughter Kezia, the children of his son Billy and his grandson Henry Franklin cannot be questioned; for he has in so many words declared that it shall be- so.

And as the several bequests of personal property to his wife, are made without any limitation, being immediatély annexed to them or any of them, the limitation for life introduced into the devises and bequests over to the plaintiffs, if it is t.o .have any application and effect at all, must be referred to and embrace all the personal estate bequeathed to his wife for the use of the family, and operate as a limitation of it to her for her life.

And as this does not seem to be inconsistent with any other part of the will, but rnay well comport with every part thereof, and we are bound to give effect to all the words of the will according to their usual import if we can, and this being the only construction by which it appears that any operation can be derived from these Words of limitation for her life, it follows that the several bequests of personal property, not otherwise expressly limited; which are given to the wife for the use of the family, must be considered as given to her for her life only.

This construction is strengthened also by the consideration, that these bequests were not made to the wife exclusively for her own use, but for the use of his surviving family at his death, whomsoever they might happen to be, that should compose it, provided she were still living to form the head of it. It is evident that he contemplated his wife being the head or chief of it; and to her, he, therefore, 'confided the management and direction of the property, trusting in her discretion and fidelity, that she would discharge the trust fairly and not abuse it.

Doubtless he intended, too, that his wife should be the principal beneficiary in this trust; and did not intend that it should have any existence, unless she survived him.

It is also possible, nay probable, that he gave it all to enable her to support and maintain the family after his death, that the3r might all live together in the same manner as before, believing that it would promote her personal comfort most to live in that manner; but still he has declared the use inffavour of the family in terms too strong to have admitted of her dismissing any member of that family without cause, and having refused him or her all participation in the benefits of the estate given to her, without violating the confidence as expressed.

So far then as the use of the property might be found necessary for supporting and rendering every member of the family comfortable, she. had a right and full authority to apply and use it durndher life; and for this purpose she might even have consumed and disposed of it all, had it been requisite, but not otherwise, consistently with a faithful discharge of her trust: for it was not the mere interest or annual profit that might be made of the property, personal I mean, given to her, that she was to have the right of taking and using for the benefit of the family, but if it became necessary, she was at liberty to have used, as probably she did, the property itself for this purpose.

That the several bequests of personal property, in favour of the widow above specified, were intended to be in trust and only for life, is further manifested by the bequest of the testator’s right to ten shares in the Cayuga and Susquehanna Turnpike stock, which he gives to her “ to be disposed of as she shall think best.” Thus showing by the change of phraseology, that when he did not intend to give to her in trust and for a special purpose, it was requisite that he should employ different terms from those used in the several bequests first mentioned : in which, it may be observed, that the terms ■used to express the use and object of those gifts are uniformly the same, without any material variation.

It has, however, been objected against the claim of the plaintiffs, that the property is not identically the same with that given by the will to the widow; that, it is only the product or increase from it, and therefore does not fall within the terms of the bequest over to the plaintiffs, after the death of the widow.

This objection, unless supported by what may reasonably be considered to have been the intention of the testator, ought not to prevail. • The great object of the testator, in giving his wife the farm whereon he had lived himself with his family as the head of it, and the personal property already specified with it, was that she might continue to live thereon, during the remainder of her life, in the same manner, as nearly as possible, that she had done with himself previously thereto.

This is made, in some degree, apparent from his furnishing her with the means, appropriated by him expressly too to that end, of keeping the family together around her upon the farm as long as she lived: and still further, from the circumstance of the most of the personal property given to her, being immediately connected with the farm, and almost indispensably necessary to a proper and advantageous enjoyment of it, so as to afford the family the same comfort and convenience, which they had been accustomed to, during his life.

Beside, a great portion of the property, being stock, composed of horses, cows, sheep and swine, such as is usually kept on a farm, and without which the accommodation, expected to be derived from the occupation of it, could not be obtained; and being also not only of a perishable nature, but a portion of it, such as could only be used by consuming it, the testator therefore knew perfectly well that the identical property, which he was giving, with the use of the farm, to his wife, for the use of herself and the family, would not likely be in existence at her death; and hence it is not likely that it w’as that, or that alone, which he intended to give over to the plaintiffs.

But he knew also that in the usual economy and management of a farm, supplied with all the necessary implements of husbandry and the various kinds of stock suitable to carry on the business of it, and to make it capable of being used, so as to produce the requisite comfort and support for the family residing thereon, that every year more or less of those things would be consumed, lost or worn out, but their places would of course be supplied by others in fact, though looked upon generally as the same stock or property.

New implements of husbandry would be obtained from time to time to supply the want of those lost, broken or worn out; horses dying or becoming, from any cause, unfit for the requisite service, would be replaced, either by others raised from the old stock, procured in exchange for those becoming unfit, or purchased with the proceeds of the farm ; and uniformly the place of cattle, swine or sheep used for the purpose of being converted into beef, pork or mutton are supplied by the annual increase or progeny from the original stock; thus filling up and occupying the same space, and in reality, while kept upon the same farm and held by the same person, regarded, generally as the same property.

It is also manifest from the provisions of the will of the testator, in favour of his wife and family, that he intended nothing more, than a comfortable support and maintenance for them at,most; and that he knew, that what he was about to give, could not be made use of as a capital or stock, from which any thing beyond that could be derived.

It appears therefore to be more in accordance with what would seem to have been the intenof the testator, to conclfide, that he intended every thing of the same kind with that given by his will to his wife, for the use of the family, and supplying the place of what had been consumed, worn-out, lost or disposed of in any way at the death of his wife, should go over to the plaintiffs.

If he did not so intend it, to whom, I would ask, does the property in question belong, which is called the increase, but more properly speaking, that which, according to the necessary course of events in every such case, has been substituted for and taken the place exactly of the original, which has either perished or been consumed?. Certainly not to the next of kin of the testator, as property that he died possessed of, without having disposed thereof by his will, because all the right and authority he had over it, he clearly intended to part with by his will.

Neither can it belong to the next of kin of the widow, for it is perfectly manifest, that the gift was not to her absolutely for her own use, but as trustee for the use of herself and the family during her life merely. And it can scarcely be imagined, I apprehend, that the surviving members of the farriily, for whose use, in common with the widow, it was holden by her during her life, can have any claim to it, because their interest, as well as that of hers, was to terminate as has been pretty clearly shown, by her death. . The judgment is reversed and a judgment rendered for the plaintiffs.