Clopton v. Jones' , 38 Ala. 121 ( 1861 )

A. J. WALKER, C. J.

The construction which was* put upon a will of somewhat similar provisions in McLeod v. McDonald, (6 Ala. 236,). is a-precedent, for construing; the will in this case, as authorizing .the keeping the family together, and supporting them from the income of the estate in the hands of the executorj ;and we adopt that construction. The intention of the testator, as implied from ■ 'the will, was, that the wife and children should, until 3-specified event occurred, preserve the family relation towards each other, to he broken only’as the children should marry,- or attain majority; ■ that-the family should be maintained from-the income of the estate, and that the management’of. the estate should correspond, as nearly as possible* in -its relation to the wife and children,- to the beneficent ■ arrangements of a husband and father, directing his property • and. its income to the single purpose of benefiting the- - family. A .large portion of the expenses devolving upon-the estate would necessarily attach ■ to the family collec- • tively, so as to prevent the ascertainment of the distinct portions attributable to the respective members of the family. The widow and' each one of- the children - would necessarily be the cause of some expenses, which would be separate and distinguishable from -the expenses of the collective family. The expenses incurred by the family-in its ■ collective capacity must,- of necessity,' have been a '-charge upon the general fund produced -by the income of the estate. So, we think the distinguishable expenses of the ■ respective children were charges upon the same fund; and'-: not upon the several shares of the children for whom the * expenses were incurred. The-will makes no distinction-between that part of the family maintenance which was-' enjoyed in common, and that part which was-enjoyed by" the members of the family separately);-and if: would be' difficult to find an argument by which the testator’s inten- - tion that such a distinction should be made could be proved. - The will neither provides for a division of the income, nor ‘ establishes any distinct interests in it, but leaves it as a common stock for common enjoyment; and it seems to us’ ithat, to charge upon the individuals deriving a support ¡.from the income the amount received, would infringe the manifest spirit of the instrument.

The decision in Pickens v. Pickens, (35 Ala. 442,) was : made in reference to an estate -kept-together under the statute, one section of which required, that separate ac- - counts should he ‘kept of moneys appropriated and expended for each distributee. The decision in-that case, pronounced upon the authority of that and other provisions of the statute, can not afford a rule for our guidance in this --case. So, also, in Pinckard v. Pinckard, (24 Ala. 250,) we ".find no analogy to guide us in this case; because there was mo will, and the distributees having no right, save that 'which pertained to -.them in their capacity of ¡distributees, were properly charged with whatever might be received •by them respectively as a part of ’-their distributive shares ¡of the estate. Foi\these reasons, we decide, that thecourt ■erred in charging the appellant separately with :the sums expended in her maintenance and education, before her ¡marriage or attainment of majority.

We are not able to pronounce, upon the evidence before ms, that the appellant’s expenses were-for articles not suitable to her fortune and condition in life.

-Reversed and remanded.