Fahs against Fahs, 6 Watts 213

The opinion of the Court was delivered by Rogers, J. The general intention of the testator, which the court is not at liberty to disregard, clearly was, to give to John,. Daniel and Samuel, an equal share of his estate. The testator devises to his three sons above named, certain real estate described in his will, which he values at certain sums, and directs that 4000 dollars of the valuation, should be retained as the share of each. As a provision for his wife Catharine, the testator, among other things, bequeaths the interest of 1500 dollars, to be paid to her semi-annually, during widowhood, which sum was also secured to her by the heirs, on the same terms, as hr the

article of agreement which forms part of this case. He makes the 1500 dollars a charge on the real estate devised to Samuel, and directs that the interest of that sum, shall be paid by him to the widow. The widow having married, it is conceded that she has no claim, and the question is, whether Samuel is liable to the executors for the 1500 dollars, or the interest, until her death.

If we adopt the construction contended for by the plaintiffs in error, it is plain, we destroy the equality which the testator designed between his three sons; for as no definite limit can be put- to the life of Catharine, the widow, it results that during her life, Samuel will have that much more of the estate than his brothers, John and Daniel. The testator directs, that the property of all description willed to the widow, shall be collected and disposed of by the executors, and be equally divided among his four children, still keeping up the equality among his three sons.

It is conceded, that on the marriage of the widow, her right to the property devised to her ceased, and it is asked, what become of the household property bequeathed to her during the intermediate time, between her marriage and death. We cannot believe that the testator intended that it should remain without any determinate owner, and yet the argument which applies to the interest on the principal sum of 1500 dollars, applies with equal force to the articles of household furniture.

We think it clear, that the testator intended that on the happening of either her marriage or death, it should be the duty of his executors to collect the funds, and distribute them among his four children, John, Daniel, Samuel and Elizabeth. We are frequently obliged to disregard the words of a testator, to carry into effect his general intention, and we think this can only be done in the case before us, by the construction given. Judgment for 1500 dollars and costs.