Tolson v. Tolson , 10 G. & J. 159 ( 1838 )

Chambers, Judge,

delivered the opinion of the court.

In looking through this will, we think the testator designed to provide for the maintenance of John Tolson, his son, and some other persons whom he designated as the “family” of John.

If the language be so uncertain, as to the person designed to take, or as to the thing designed to be given, the court cannot enforce such will, without adding a devisee or legatee not named, or describing property not described in the will.

The term “family,” as used in this will, does not designate, we think, any individual persons with sufficient accuracy.

So far then as regards those who were in the contempla ■ tion of the testator, when he used this language, the devise must fail for uncertainty, but this will not affect the devise to John.

The proper and necessary means of securing the execution of the testator’s intention, to provide a maintenance for John, is to consider the amount necessary for such maintenance, a charge on the testator’s lands devised to his seven sons, and to make them trustees for John Tolson.

The Chancery court can then require the payment of such a sum, as under the circumstances of the case will be proper to compensate for the maintenance of John Tolson, since his father’s death, and secure the future payment of an annuity.

A decree to this effect will be signed.

DECREE REVERSED, AND CAUSE REMANDED

FOR FURTHER PROCEEDINGS.