In re the Settlement of the Estate of Whitman

Walker, J. The testator, Seth Whitman, died after having made his will, leaving a large amount of real and personal estate. By his will, Matilda Whitman his widow, Samuel Bennett, and Hiram Whitman, were appointed executors, and qualified as such. They presented an application to the Circuit Court of Boone county, for authority to sell real estate, for the payment of debts, the support, education and maintenance of the family, and to obtain a construction of the will, and be discharged from the erection of a dwelling-house for the use of the family, as was required by the provisions of the will. The court, on the hearing, authorized the sale of all or so much of the real estate, as might be required for the purposes specified. Under this decree, sales were made to an amount between five and six thousand dollars. This proceeding was instituted in the Probate Court of Boone county, for an account of the proceeds of the sale of the real estate, as well as of the personalty of the estate. And upon the adjustment in the Probate Court, there was found to be in Matilda Whitman’s hands, seventeen hundred and eighty-seven dollars and seventy-seven cents, for which the court refused to allow her a credit. From this proceeding, an appeal was prosecuted to the Boone Circuit Court, and upon a trial in that cotfrt, the finding of the Probate Court was affirmed, and the court found that the money in her hands, was liable to be accounted for, and paid over under the order of the Probate Court, for its distribution. From the judgment of the Circuit Court, Bennett and Matilda Whitman bring the cause to this court, by appeal. And for a reversal of the judgment of the Circuit Court, they insist that under the provisions of the will, the widow was not liable to account for the residue of the estate, after the payment of the debts and specific legacies, until the youngest child attained its majority. To determine this question, it may be proper to give a construction to a portion of the will, under which they have been acting, and by the provisions of which, their duties and rights must be governed. The questions presented by the record, arise on the following provisions of the will: “ 2nd. That my debts be by my executors paid, out of the avails of my personal property, unless there can be some other arrangements made. “ 3rd. That after my just and legal debts are paid, that there be built on my real estate, at Monteray’s addition to Janesville, or land laying south of it, a residence, and other suitable buildings, convenient for a residence for my family. “ 4th. That my beloved son, Ogden H. Whitman, be paid, out of the avails of my property, five hundred dollars, when he shall arrive at the lawful age of twenty-one years, it being-willed to him by his grandmother, Anna Nicholas, and now remaining in my possession. “ 5th. That my beloved son, C. Golden Whitman, and daughter, Julia H. Whitman, and Charles N. Whitman, be severally paid the sum of five hundred dollars each, when they shall severally arrive at the age of twenty-one years. “ 6th. That my executors shall, as my children at lawful age, dispose of, if necessary, any of my real estate, for the payment of the several sums willed to them. “ 7th. That my beloved wife, Matilda Whitman, shall have the control of all my property until my youngest surviving child shall become of lawful age, for their support, education and maintenance. “ 10th. That after my youngest surviving child becomes of lawful age, the residue of all my property at that time, be divided as follows, (viz:) To my beloved wife, Matilda Whitman, I will and bequeath one-third of my property, for her support and maintenance during her natural life, at her decease to be divided between my surviving children, or given for missionary purposes, at her discretion; and the other two-thirds of my property to be equally divided between my son, 0. Golden Whitman, Julia H. Whitman, and Charles N. Whitman, provided at the discretion of my executors it shall be proper, it may be equally divided between Ogden H. Whitman, C. Golden Whitman, Julia H. Whitman, and Charles N. Whitman.” It will be perceived, that the second clause of the will requires that his executors should pay his debts, out of the avails of his personal property, unless some other arrangement could be made. But what that arrangement should be, we deem it unnecessary to determine in this case. By the third clause, he requires that they should erect a dwelling-house for the use of his family, as a residence, after the payment of his debts. This would of necessity have to be done with the estate in the hands of his executors, and he thereby gave them power to apply 'the necessary amount of the funds of his estate for that purpose. By the fourth and fifth clauses, he gives specific legacies to his children, and by the sixth, empowers his executors, if it shall be necessary, when they become entitled to receive these legacies, to sell any portion of his real estate for the purpose of satisfying them. The duty of paying his debts, and these legacies are imposed upon the executors. And for that purpose they should at all events retain undisposed of, a sufficient amount of the testator’s real or personal estate, to pay and discharge them. By the seventh, he directs that his wife shall have the control of all his property, until his youngest child shall become of lawful age, for their support, education and maintenance. By this provision he could not have intended to place in her hands the whole of his estate, because he had already directed his executors to apply so much of it, as should be required in the payment of his debts, and to discharge the specific legacies previously bequeathed. The amount necessary for those purposes, had already been specifically appropriated, and from the language employed, he could not have intended to revoke those provisions. And if by this latter clause, all of his property was placed under her control until the majority of the youngest child, it would be an attempt to delay the payment of his debts, and would postpone the payment of these specific legacies, until that time. The only reasonable construction that it can receive, is that after the payment of the debts, and the reservation of enough of his estate to discharge the specific legacies, the residuum of his estate should then be under the control of his wife, until the event should occur, when the remaining portion should be distributed, as directed by the will. And when she received it under the will, it was not in fee, but only as a trustee for the uses specified. She did not by the will, take even a life estate in this remainder of the property, but only the power to control it, for the purposes named, during the term or period that should intervene, before the distribution is required. But when she became invested with this remaining portion of the estate, it was with the power to control it for the purpose of supporting, educating, and maintaining the children, until they should respectively become of age. There is no intention manifested by the provisions of the will, to give her the absolute unconditional control of the property, but on the contrary the power to control it, is limited to the objects specified, and she is not authorized to go beyond those purposes, but within the limit prescribed, she may exercise her discretion. The manner or extent of the support, education and maintenance is not prescribed ; but if she were squandering and misapplying the fund, a court of equity would restrain her, and compel its application to the purposes of the trust declared in the will. The testator has not required her to account to the probate court for the application of the fund, but by the will it is removed from the control of that court, and placed within hers, and the probate court has no power to require her to account for this fund, before the time arrives by the provisions of the will, for its distribution. Then when this money was received on the sale of the land, it formed a portion of the estate, and after the payment of the debts, and specific legacies that might then be due, the executors should have paid the remainder, after reserving enough to pay the remaining legacies, over to the widow, and her receipt of the remainder would discharge them to that extent. The court below erred in the judgment rendered, holding that the widow was liable to pay this money on an order of distribution, as the fund is not liable to such an order until the period arrives for a final distribution of this residuum, as required by the will. The judgment is reversed. Judgment reversed.