IN EQUITY.

#### Executors of Thomas Holliday v. Tillman Holliday.

From Greene.

Devise of certain lands to testator’s wife for life, remainder to Ids son, and by a subsequent clause, testator directs that in case liis wife be living1 at his death, the sum of $/50 shall be appropriated by his executors for repairing the buildings for the reception of his wife and family at the place devised as above, the same to be completed within twelve months after his death. The wife survived the husband three days, and it was held that the money should not be applied in repairs for the benefit of the remainder man, but should be divided among the residuary legatees.

This was a bill seeking the direction of the Court* and was founded on the following facts. Thomas Holli-day died in 1818. having by his last will devised to his wife for life certain lands, and by a subsequent clause devising the remainder in fee in the same lands to his son Tillman Holliday, and by another clause directing, ¿hat in case his “ wife be living at his decease, the sum of seven hundred and fifty dollars shall be appropriated by his executors for repairing the buildings for the reception of his wife and family at the place devised as above j the same to be completed within twelve months after his death.” The wife survived the testator three days only, and the seven hundred and fifty dollars were on the one hand claimed by the residuary legatees, and on the other, it was demanded by the remainder man that the money should be applied to the repairs of buildings on the lands. The bill prayed that the conflicting parties might be required to interplead among themselves.

The case was submitted without argument, by Q-astm for the Complainants, and Hawks for the Defendant.

Hall, Judge.

When the testator directed the sum of f,750 to be laid out in repairs upon the bouse .in ques - *470tion, his professed object in doing’so, was the accommodation of the widow. If he had any other object in view, he has not expressed it. If then the purpose for which this expenditure was to be made has failed, no other person not intended to he benefited, can call for its execution.

It is true, if the repairs had taken place, Tillman Holliday, the son, would thereby be benefited after the death of his mother; this would be the consequence of an. act directed to be done, but not the motive which led to it. When property is given to a legatee through affection, charity, ,or any other motive, it is a consequence of that charity, that some other person is benefited by that legacy after the death of tiie legatee. If the repairs were made, the son would have the benefit of them, because the law would give it to him ,* as they are not made, the executors, or those entitled under them, should retain the money, because the widow, the only meritorious claimant, cannot, assert a right to it, and the son’s pretensions must fall with that light $ as well, I think, might the next of kin of a deceased legatee expect to enjoy the benefit of a lapsed legacy. For these reasons, I think the S$750 should be divided among the distributees of the testator.

Henderson, Judge.

The wife alone can call for the expenditure of the money directed to be laid out in repairs of «the dwelling. It is expressly stated to be for the accommodation of herself and family, and on lands devised to her for life, and is made dependant on her being alive at the testator’s death. On the latter ground, I think the reasons fors-this construction are unanswerable. Had it been intended for the benefit of another, for instance the ulterior devisee, it would not have been made to depend on her life 5 there is no connection between her existence and the benefit intended for him, if she had died the day before the testator, it was not to be expended — if the day after, it is contended it must, un-*471■css by clear intendment, taking the whole will together, we should arrive at such a conclusion, where one so plain and sensible, and consistent with the other parts of the will is so obvious. To ills wife ho had given the lands for the convenience of herself and family, on which the repairs were to be made ; and as conclusive evidence that to her alone his bounty was extended, it is made de-pendant on her being alive at his death. Then, if from the will she was the object, she aIon,e cau call for its execution, Were a testator to make a bequest on a contingency, no other ways connected with his bequest— If in the present case he had not given the lands to his wife for life — if the repairs were not to be made for her accommodation — -if the testator had devised the money to be laid out on these, or any other lands in which his wife was not interested — and had directed money to be expended on them, if his wife should he alive at his death, or upon any other contingency, as the death of A, B, and the contingency had happened, here, as there would be no clue by which the testator’s object could be ascertained, his will should stand, for the reason, it would be sufficient that he has so said, and there Is nothing in the will by which the words in this particular could bo explained, or contradicted; hut in this case, it is far different, the wife, upon whose death before testator, nothing passes, is devisee for life of the lands on which the expenditure is to he made, it is expressly-stated that it is for the accommodation of herself and family, and lest he should he misunderstood, it is not to be laid out if his wife should die before him. It is said that the wife having survived the husband even for a day , an hour, could call for its execution — -admitted; but she alone could do so, and dying before she needed the provision, and before it possibly could be done, no other person can call for it $ for none can call for it but those for whom the testator designed it. it is true, the ulterior devisee would have enjoyed it, after the wifo’n death,, *472if done, as the thing attached to the land, (but not for hiss ■ keneüt, for if it was, it would not have depended on the wife’s being alive fit the testator’s death) and when done, ^j)e tggfotoj, -would not detach it, because it could not be done without much injury, and the detached tiling would be of little or no value.

In coining at my conclusion, I disclaim all other guides but the words of the will. I have only made every part .subservient to the whole, a liberty, for which, I will not cite authorities&emdash;the books are full of cases to the same effect. Tayior, Chief-Justice,

concurred» Tyson &