#### WILLIAM T. MACLIN and wife vs. ABSALOM B. SMITH and others.

A testator, after giving certain property to his children in common, devises as follows: “ I hereby direct that all the before mentioned property given in commán to my said four children be kept together for their joint benefit, until one of my said children shall have arrived at the age of twenty-two years, and in the mean time the proceeds arid profits of the same, after keeping up the plantation I have given them,. to be devoted, or at least so much thereof as is necessary to educating, schooling, clothing and boarding them and other necessary expenses of my said four children, until they shall arrive at the age aforesaid, and whenever any of my said children shall attain to the said age of twenty-two years, it is my desire that at the end of the year at which he or she shall attain to their said age of 22 years, his or her share of all the said property, real and personal, hereinbefore given to all of my said children in common, together with the increase and profits of the same, shall be set apart and allotted in severalty to his or her own use and benefit: the balance of the said-property to be kept, &c.” Held that the profits do not constitute a fund strictly joint, applicable to a specific purpose, without view to separate interests' of the children therein; but that each child is entitled to an equal share of the profits, as well as of the principal property devised.

In the same'will was the following devise: “ It is my will and desire that my children be sent to such school as will enable them to acquire the best education and fit them to maintain an elevated sphere, affording to each the same opportunities as near as may be?’ Held feat .under this clause the guardian had a right to use, at his discretion if neeessary, for the purpose of educating the children in the manner here directed, not only a fund set apart in a previous clause for their education and maintenance, but also the income of any other portion of the property devised to. them, or even a part of the principal estate itself.

This cause, having been set for hearing upon the bill and answers, was transmitted,' by consent of parties, from the Court of Equity of Northampton county, at Fall Term, 1842, to the Supreme Court.

The bill was filed by William T. Maclin and Mary his *372wife, and charged, that in .the year 1835, Absalom P. Smith died, having first duly made his last will and testament, whereof he appointed Absalom B. Smith executor; that the WIH was duly proved, and the said Absalom B. Smith qualified as executor — and the said will w.as prayed to be ■taken as a part of the said bill — that the said testator left surviving him the plaintiff Mary, and the defendants Virginia, John and Octayius, his only children — that the testator by his saM will devised and bequeathed to his said children a large property, real and personal, which he directed to be'kept together by the executor or such guardian as might be appointed to them, until the oldest child should arrive to the age o.f. 22 years, and in the meantime that the .profits arising from the said joint property should be applied ,to the joint use and benefit of .the said .children, and that the expenses of each of every kind should be borne out of the same — and also directed that his children should receive liberal educations, so as to fit them to move in an .elevated sphere o.f life — that over and above the said joint property, .the testator bequeathed to his -said children a residuum of alibis property-undisposed of in other parts of his will, after the payment of his debts, equally to be divided among them, and free from .any limitations or restrictions whatever — that he also devised to his said children and his widow a tract of land in Northampton county, called the Haynes land, equally to be divided among them, and not subject to any of the limitations annexed to the said joint property. The bill the.n charged that the defendant Absalom, as executor, received all the said property into his possession — that he paid off all the debts and demands against the estate— and that in 1838, he was appointed guardian to the plaintiff Mary and to the defendants Tirginia, John and Octavius, who are infants — that the said Absalom hath received large sums of money out of the profits of the joint estate, the rent of the Haynes land, and also an account of the residuum devised to the testator’s said children — that in September, 1S40‘ the plaintiff Mary intermarried with the plaintiff William — that previous to her intermarriage all her neces*373sary expenses were paid by the said Absalom as her guardian, but that since that time the said Absalom hath refused to allow any thing for her support out of_the proceeds of the said joint property, and that he hath refused to account and pay over what was due to her. The bill then prays an account and decree for the balance, and also that the Haynes tract of land may be sold &c.

The material clauses in the will of Absalom P. Smith referred to in the bill are the following : “ 12th. It is my will and desire, and I hereby direct that all the before mentioned property, both real and personal, given in common to my said four children be kept together for their joint benefit, until one of my said children shall have arrived at the age of twenty-two years, and in the meantime the proceeds and profits of the same, after keeping up the plantations I have given them to be devoted, or at least so much thereof as is necessary, to educating, schooling, clothing apd boarding, and other necessary expenses of my said four- childen. until they shall arrive at the age aforesaid, and whenever any of my said children shall attain to the said age of twenty-two years, it is my desire that at the end of the year in which he or she shall attain to their said age of twenty-two years, his or her share of all of the said property real and personal before given to all of my said children in common together with the increase and profits of the same, shall be set apart and allotted in severalty to him or her for his or her own use and benefit, the balance of the said property to be kept together for the benefit of the rest of my children, until they attain their respective ages of twenty-two years, at the end of which year each is to draw his or her share of the said property in manner and form aforesaid.” And the I9th clause in these words: “ It is my will and desire that my children be sent to such school as \yill enable them to acquire the best education, and fit them to move in an elevated sphere, affording to each the same opportunities as near as may be.”

The defendant Absalom B. Smith answered, and in his answer, after admitting the death of the testator, the probate *374of the will and his own qualification as executor, stated that he had received all the testator’s estate into his possession and having paid off the debts, was appointed guardian to the plaintiff Mary and the other three children, and of the latter was still guardian' — that in both capacities of executor and guardian he had endeavored to comply with the provisions and trusts of the testator’s will, and had made to the proper court regular, and according to his judgment, proper returns of his actings and doings; and he annjexed to this his answer a complete and full account of every matter and thing in any wise connected with the plaintiff’s demand. In regard to the devise and bequest in the 12th clause of the will, the defendant annexed to his answer an account of the nett profits of the property therein contained during each year — and also an account shewing the amount expended during each year on the several children; and he stated that by these accounts it would appear that some of the children had expended larger sums than others — that whether the expenditures of each ought to be equalized so that no one should exceed the one-fourth of the profits, the defendant did not pretend to determine — that being of different ages the proper schooling, clothing, &c. of some were necessarily more expensive than those of others. The defendant further stated, that the plaintiffs now claim out of the profits aforesaid a sum sufficient to support the plaintiff Mary according to her condition and rank in society, and if this claim be allowed there will not be enough left to effectuate the trusts in respect to the remaining children — that when the eldest shall arrive to the age of twenty-two, the other children will be nearly or quite grown; so that the fund will be utterly insufficient to support them according to that rank and station which their fortune in expectancy will entitlethem to assume. The defendant further stated, in relation to the 19th clause of the will, that, whether, if to accomplish the purpose therein expressed the said fund should prove insufficient, as in the defendant’s opinion it certainly would, he had any power or authority to touch any other fund, the'defendant was at a loss to determine, as no provision is expressly made to that end— *375that perhaps it was not in the contemplation of the testator that this fund would prove insufficient, for soon after his death it amounted to nearly two thousand dollars a year, but it was now reduced by decline in the prices of produce and other causes to little more than half that sum. The defendant stated that he had no objection to the sale of the Haynes tract of land, as prayed in the plaintiff’s bill. The defendant further stated, that he believed that the plaintiff Mary was indebted to him for an excess of advances beyond what she was entitled to, but averred that he was and had ever been ready to come to an account with the plaintiffs, and submitted himself to the direction of the court.

No answer was putin for, the infant defendants. The cause being set for hearing, was transferred to the Supreme Court.

Badger for the plaintiffs.

JB. F. Moore for the defendants.

GastoN, J.

The bill is filed mainly to have a settlement of the accounts of the defendant, Absalom B. Smith, as the guar-iand of the plaintiff Mary, and as executor of her deceased father, and the other children of the testator are also made parties defendants as having an interest in the taking of the accounts of the executor. Another object of the bill is to have a sale of certain lands, which the children of the testator own as-tenants in common. The defendant Absalom B.. Smith has* putin his answer and subjoined thereto his accounts, and the parties pray for the direction of the court upon certain matters thereby presented, and it is understood that, with these directions, they will be enabled to settle the controversy between them.

The first question, upon which the- parties differ, is, whether the .profits of the plantations, negroes and other property given by the testator to his children in common, all of which property is directed to be ktept together for their joint benefit until the eldest arrive at the age of twenty-two years, *376and which profits áre appropriated in the meantime, or so much thereof as may be necessary, to the education and maintenance of the children, constitute a fund in which each has an equal, undivided share, or a fund strictly joint, applicable to a specific purpose, without view to separate interests of the children therein. We have attentively considered the 12th section of the will, upon the construction of which this question depends, and examined in connection with it all the other parts of the will; and inasmuch as the testator has given several vested estates to his children in the property out of which the profits are to arise — as the profits go with the capital, as an accessary follows its principal, unless the the contrary be directed — and as, upon the arrival of any child to the age of twenty-two, the testator directs “that his share of the property, together with the increase and profits” shall be delivered to him — we are of opinion that the purpose of the testator, 'in postponing the division of the property and making an appropriation of the profits until the division, was not to change the interests of the children in the profits, but to render the property more productive for the benefit of all and provide more conveniently for the application of the profits to the wants of each. Upon this point, therefore, the direction of the court is, that the children are entitled to equal shares in this fund.

In the 19th clause of the will the testator thus expresses himself: “ It is my will that my children shall be sent (o such school as will enable them to acquire the best education and fit them to move in an elevated sphere, affording to each the same opportunities as near as may be.” In the accounts submitted with the defendant’s answer, the charges for the maintenance and education of the plaintiff Mary not only exceed her share of the fund appropriated to the maintenance and education of the testator’s children, but the entire income of the property left her by her father, and make her a debtor to the defendant. It is objected that these charges cannot be allowed, first, for that the testator has restricted the expenditures for her support within the limits of the fund provided for that purpose ; secondly, that the de*377fendant, as her guardian, cannot break in upon the principal oí her estate, unless it be in a case of urgent necessity; and thirdly, for that the charges are, on the face of them, extravagant. The first of these objections is, in our judgment, clearly untenable. The testator has, indeed, provided a fund, which he thought would be fully sufficient fot the purposes of her education and support,'but he has not directly nor indirectly declared his will, that these purposes shall be-answered out of that fund exclusively.; and, if it has proved inadequate, the defendant as guardian, and independently of the explicit injunction above recited, had a right to- apply the whole of his ward’s income to her maintenance. Nor, under the circumstances of this case, do we admit the second objection to be well founded. Her father, from whose bounty all her property is derived, has ordered,- by declaring it to be his will, that she shall receive the best education that could be given her, so as to fit her to move in an elevated sphere, and he has not qualified this command by any limitation, that the cost shall not exceed her income. He could do with his own as he pleased, and, having willed that this object shall be effected, he has willed that all the means, which he has put into the hands of him, in whom he confided to effect it, shall, if necessary, be devoted to that purpose. As to the objection that the expenditures are extravagant, we cannot pass upon it, upon inspection of the accounts ; but we feel ourselves authorized to declare, that, if they have been made by the defendant in the honest exercise of his judgment, for the purpose of fulfilling the will of the testator, they ought to be allowed him.

The testator authorized and directed his executor to sell the plantation on Roanoke, which he bought of Eaton Haynes and Nathaniel Harris, provided the sum of $4000 could be obtained therefor, and to divide -the proceeds between his wife and four children equally, but, if it could not be sold for that price, he directed it to. be rented for some years and the rent divided equally between his wife and four children, and, ultimately, if it could not be sold for that price, he gave the same in fee to his said wife and children. *378Efforts had been made in vain to get the limited price for if. and it was ascertained that it- could not be obtained. The widow of the testator having married again, a petition was filed in the County Court of Halifax, whereunto the said widow and her second husband, the children and the executor were all made parties, and in that suit one-fifth of this land was set apart unto the said widow by metes and bounds, and all her claims upon the testator’s estate were definitively settled. It is prayed by this bill that the remainder of this land be sold. On this prayer a decree has already beeu made. The bill further prays, that the defendant A. B. Smith may be decreed to pay over to the plaintiffs the plaintiff Mary’s share of the rents of this land. There is a direction in the will that all the property of the testator, not otherwise disposed' of, be sold, and the proceeds, together with his cash and the debts due him, be equally divided between his wife and' children, and the bill prays that her share of this residuum be paid'over to them. The court will not now make tire decrees prayed for, in regard to this rent and residuum. Upon the accounts, as exhibited, the defendant Absalom is in advance to the plaintiff Mary, and he hag a right to be re-imbursed these advances out of any of her funds in'his hand's.

The decision, which has been made, that the children are severally entitled to the fund set apart for their education and support, renders the controversy, which has been raised, whether the provision for maintenance apply to the plaintiff Mary since her marriage, unimportant, except in one respect. If she should die under'twenty-two, without leaving any child surviving her, there is a limitation over of her share in the profits, (not so applied',)’ as well as in the lands and negroes themselves, to her brothers and sister. We are not informed of her age. And, as the defendant, in our judgment, is entitled to withhold whatever may be due to her on this account, until his supposed advances shall be satisfied, we deem it unnecessary for. the present to express an opinion upon it. The questiom may be again brought before us, if it becomes practically important.

Ter CuriaM, Decree accordingly.