Jones v. Foote

W. Allen, J. The question presented is whether, under the fifth clause of the will, the two youngest children take equally, or whether the executor is to apply the property to the maintenance and education of both or either one of them at his discretion. 545 We think that the clause constitutes a legacy to the two children in trust, and that they take equal interests under it. It is not a bequest to the head of a family for the support of his family, or to a trustee for the support of the family of the testator; but it is a legacy by a father for the maintenance and education of two of his children by name. We think this gives to them equal rights in the estate. The insertion of the words “ the maintenance and education of ” restricts the use they may have of the property, but cannot deprive them of the equal right to such use. As the will gives to each of the children an equal right with the other, the fact that one of them has acquired other means of maintenance and education is immaterial; and the acquisition of new parents, by adoption, by one or both of the children, will not determine the interest given by the will to both. The testator might have given to the .trustee discretion to apply the fund according to the different needs of the beneficiaries, but he has not done so, and the trustee has no authority to take from Grace C. the proportion belonging to her, and bestow it upon her brother. Decree accordingly.