opinion

Considerations on the will of Mr. B. Watkins and the declarations of Mrs. Watkins and the Revd. Mr. Leigh.

I. Taking the will alone, separately from extrinsic testimony, the first question which presents itself is whether the estate of Mr. Watkins real and personal must be divided equally among his widow and children or whether the Trustees therein named may divide the same among them in any proportion they shall in their discretion think proper. After devising the estate to the Trustees in fee the testator expresses the trust to be ‘for the maintenance and education of his wife and children.’ These words hold up no idea of inequality; on the contrary they do by universal acceptation give an equal interest to all the devisees described, which interest is the nature of a jointenancy subject to severance, or to survivorship if not severed, according to the well known rules of jointenancy. This being the legal effect of these words if they stood single and unconnected with any others, are there others in the will which will alter their legal import? Giving them (i.e. the trustees) says the will by these presents full power to sell if they ‘judge it necessary all or any part thereof and to make conveyances to the purchasers in feesimple, with power also to make purchases with the money arising from such sale for the use of my wife and family.’ These words are so far from changing the effect of the former and giving rise to an inequality of partition that they confirm the equal bequest by naming again it’s objects, that is his wife and family, in terms of equality.

He proceeds ‘and to make division of my estate among my said wife and children at any time when they shall think it convenient to do so.’ These only give to the trustees a power of dividing at such time as they shall think proper, saying nothing of the proportions.

‘And finally to do every thing with regard to the said estate in as full and ample manner as I could myself while living.’ These words may be considered either 1. as meaning to invest the trustees with those full powers necessary for an advantageous execution of the trust, as for instance to submit to them the arrangements, the objects of pursuit, the management in general, the mode of partition &c. under which construction they neither lessen nor enlarge the equal rights of the cestuy que trusts given before; or 2. as meaning to authorize them to alter the trust itself at their will, and literally to give them a power ‘of doing every thing with the estate which the testator himself might have done.’ But this construction would be so large as eventually to defeat any possible purpose imputable to the testator, for under it they might not only divide the estate unequally, but might give all to some, and more to others, or might give the estate totally out of the testator’s family to strangers for this he himself could have done, a power which the judges governing themselves by technical and fixed rules of construction would probably never admit the testator to have intended and therefore that they will adopt the meaning first mentioned which is rational and sufficient to satisfy those words.

Cases have frequently occurred before the courts wherein these discretionary powers have been confided to trustees, executors &c. on which these general observations may be made; that the judges are so far from favouring them and straining the force of words to produce them that they only tolerate them when given in the most unequivocal terms; that they have sometimes rejected them when given explicitly and at others have defeated them by controuling even attempt at unequal partition. It is observable too that these are the later authorities which discourage them the most.

2. Vern. 383. Warburton v. Warburton.	(	Com. ple. 420)
2 Vern. 149.	(	287.)
1. Ca. Ch. 309.	(	1284.)
2. Ca. Ch. 198.	(	1372.)
2. Ca. Ch. 228.	(	1389)
198.	(	1537)
Pr. Ch. 256.	(	1901.)

Supposing that the widow and children are by the will become jointenants of the trust, the next question is What is the duration of their estates? As to the personal estate it is perpetual, and so also as to the slaves who by the act of ass. pass by deed or will as personal chattels do: but as to the lands it is as certain that the widow and children take by the will estates for life only, there being no words of limitation annexed to the devise of the trust. The reversion of the trust therefore after the death of the jointenants for life descends to the heir at law as being undisposed of by the will. This being the case of a trust is not therefore º different from that of an estate in possession, the determinations being that limitations of a trust either of real or personal estate are to be construed as those of a legal estate. Any of the jointenants may by a bill in chancery compel a severance of the trust and conveyance of their equal share, which as to the slaves and personal estate is necessary to prevent their share surviving to the other legatees on their death to the exclusion of their own children where they have any and as to the real estate it will on the death of the particular tenant give the heir a right of entry into the severed part.

II. In forming the preceding opinions, the parol declarations of the testator’s intention have been purposely kept out of view. If they can be admitted as proof they decide in favor of the power of the trustees. The question whether they may or may not is of no importance indeed as to the slaves and personalty because the will conveys in those what the parol evidence says the testator intended. But it becomes of consequence when applied to the real estate because by the depositions he meant that his trustees should divide his lands among his three sons by certain bounds º which is very different from the effect of the will. I think however that the parol evidence will not be admitted in this case. Because it tends to what the courts have so much endeavored to prevent, that is the putting it in the power of witnesses to make wills for testators and because parol evidence has been expressly rejected where it was to alter the estate devised. The alteration here would not be in the duration of the estate but in the quantum, which is full as material.

On the whole then it seems to me that rejecting parol proof the will will be found to have given equal estates to the widow and children in jointenancy, that these estates are absolute as to the slaves and personalties but for life only in the lands, which on the death of the jointenants successively will survive to those overliving them, and on the death of the last will revert to the heir at law in fee. That as to the slaves and personal estate those who have children should sever immediately to enable themselves to transmit their own parts to their own children.

As it will probably be disagreeable to the trustees to divide the lands so differently from what they know to have been the testator’s intention, so long as there may be a chance of being permitted to fulfill that intention, and as it would be perillous for them on the other hand to pursue his intention while there is so much room for <them to> doubt whether the law will justify it, I would advise them to file a bill of Interpleader in the High court of chancery, stating the will of their testator the conviction they are under of the division he wished to have made, and for which alone he entrusted them with discretionary powers, their desire to exercise those powers for the fulfilling his real will if the laws will authorize them, and the doubts which have been suggested to them whether they are so authorized, praying the Chancellors to call before them the several parties interested, to cause them to interplead and assert their respective claims and if it shall appear to them that the power of apportioning the land rests in the discretion of the trustees that then they may be permitted to apportion them among the three sons according to the bounds described by the testator and that this apportionment may be confirmed by decree of the court; but that if they possess no such power that then the court will decree such partition as the law requires. Under such a decree the trustees will act safely, what they do will be firm, it may be done on motion any day of the ensuing session of the Chancery, and need cost the estate the fee of one lawyer only as the proceeding being amicable, he may state it for all parties and leave it to the judgment of the court.