Moore's Ex'rs v. Moore's Distributees

CHILTON, J. Upon the annual settlement of the estate of Dr. David Moore, made by his executors with the Orphans’ Court of Madison county, for the year 1849, they claimed a credit for several sums paid by them to Mrs. Martha L. Moore, the widow of the testator, amounting in the aggregate to the sum of three thousand 'seven hundred and twenty-three dollars. It appears by a bill of exceptions sealed upon the trial, that the testator’s daughter Harriet was at school in New Rochelle, in the State of New York, and that Mrs. Moore desired to visit her said daughter, for the purpose of looking to her interest, and of changing her location, if circumstances should render it necessary ; that she did make the visit, taking with her another daughter, and a servant, and it appears she removed Harriet from New Rochelle to Richmond, in the State of Virginia. This was in the summer of 1849. The sum above stated was paid to Mrs. Moore as the expenses of the trip. The annual income of the estate was shown to be not less than forty-five thousand dollars, and the executors produced and read the will of Dr. Moore, which had been duly admitted to probate in said court. By the will, the testator bequeathed his estate, in equal portions, to his wife and children. He directs that each of his children should receive out of it a good education, and provides for a division of the estate, when the oldest male child attains the age of twenty-one years, or his oldest female child shall attain the age of eighteen and marry. If the widow should marry, her share is to be set apart, and the balance to remain together, but if she prefers it, her interest in the estate, so long as she remains single, may remain “in joint stock,” until a division is made as above provided. The sixth item reads as follows: “ I will and devise that my house and lot, in the town of Huntsville, where we now reside, and the lot and stable adjoining Thomas Brandon’s garden, be reserved free of charge to my dear wife, as a residence, with all household and kitchen furniture, carriage and horses, and such other furniture belonging to the premises, as I may own at my death, and the same to be kept up in a reasonable and economical way for her use and the use of my children, until she calls for a division of her part of my estate, or the division shall be made agreeably to the provisions of this will. And all reasonable and necessary expenses for keeping up the farms, and the family expenses, economically made, shall be paid [247] by my executors out of the joint funds of my estate, until a division takes place agreeably to this will.” The ninth item reads as follows : “ I give and release to the Methodist Episcopal Church, of the town of Huntsville, Ala., all monies advanced for said church, and further will and enjoin upon my executors to pay over annually to the stewards of said Methodist E. Church, and their successors in office, fifty dollars, so long as my estate remains undivided among my children, or until they shall receive their distributive shares of my estate, when this donation shall cease; or should my wife cause a division of my estate, then it shall cease, as it is intended to be a family contribution, such as I have paid for many years annually, and whieh I do not wish disturbed, as long as my property remains undivided, and as a joint stock for the use of my family.” From these several provisions of the will of Dr. Moore, it is very clear that he intended, so long as his property should be kept together, it should constitute a fund, out of which should be borne the family expenses, and the payment to the Methodist Church, at Huntsville. It was not contemplated that his executors should be required to keep a separate account against the wife and children as to the expenses incurred, but the whole expense of the domestic establishment was to be charged upon the common fund, or as the testator designates it “ the joint stock,” meaning thereby his undivided estate. It is further our opinion, that a reasonable construction should be given to the will, in ascertaining what expenses fall within its provisions, as expenses “economically made;” that in construing the will we should look at the circumstances under which the testator made it — we should have regard to the state of his property and the condition of his family, &e. — 2 Powell on Dev. 6, and cases cited in notes, 11 Law Lib. 4. Here is an immense estate, the annual income not being less than forty-five thousand dollars per year. This is to be divided between the widow and four children, but is to remain as joint stock, until a division, for the use of the family. We do not think it was the intention of Dr. Moore by providing for “expenses economically made,” to restrict his family to the bare necessaries of life, or to deny to them the ordinary means of recreation, enjoyment or improvement, usually possessed by families moving in the same sphere, and similarly situated with respect to their pecuniary [248] circumstances. As we said above, the expression must have a reasonable construction ; the family should preserve the just medium between prodigality on the one hand and parsimony on the other. Let us apply these general rules of construction to the case before us. The children being deprived of a father, the mother would naturally feel more interest in their education apd. training than any one else, and we think no valid objection can be urged why the executors should not permit her to superintend the education of her children, especially of her daughters, whose proper culture and training must mainly depend upon the affectionate care, solicitude, and vigilance of the mother. The withholding of such vigilance is the worst economy. We think therefore, that under the circumstances disclosed in the bill of exceptions, Mrs. Moore might with propriety have visited her daughter, to look to her interest and to see that her education was properly conducted, and that she might well take with her the younger daughter and servant, and that the reasonable expenses of the trip should be a charge in favor of the executors against the estate. Whether the amount paid was more than was reasonably required to defray such expenses is not a question before us, as it was not decided upon by the court below. That is a matter, which, if doubtful, can be investigated when, the settlement is again taken up, and will be decided in view of the rules above laid down. Let the decree be reversed and the cause remanded.