Dickson v. Dickson ( 1874 )

Rea.de, J.

The will of William Dickson, deceased, which we are called upon to construe, is one of those short sighted instruments common to testators, who suppose that all their affairs will remain as they are; or that there will be only such changes as their desires suggest ; and so dispose of their estates without the aid of counsel.

The testator had nine living children, and three grandchildren of his tenth child, who was dead. There is nothing in his wall to indicate that he had any special favorite among his children, or that there was any reason why he should have. All his living children, except one, lived with him in the same house, or upon his land, and most of them in the house with him; and it seems to have been his wish to provide for all of them in that way which would suit them best.

If we assume what is probable, that his daughter Sarah married and moved to herself, he gave her such things as his circumstances justified, and as were necessary for her comfort, then we find all his children provided for until such time as circumstances might require his estate to be divided. To the three children of his deceased son he gave pecuniary legacies; to Mrs. Abernathy, his daughter, who lived to herself, he gave the use of so much of his land as was necessary for her support; and to all his other children who lived in the house with him, he gave the use of his homestead to be occupied together, the daughters having the management in the house, and his son Charles to have the management out of doors. There was no purpose to give the estate to Charles either for himself entirely, or for himself with a discretion to give the others much or little, as suited him. -But the purpose was to have the family establishment kept up; how long, he could not tell; or what was to come afterwards he could not foresee; and had not capacity to provide for ; and therefore he left it to circumstances.

1. The three children of Thomas are provided for by pecuniary legacies -which are a charge upon the whole estate, and are to be paid. And they have no further interest in the estate.

2. All the living children of the testator, and the representatives of the deceased children are tenants in common of all the real and personal estate with partition postponed until circumstances should make it necessaro. The separation of the family, and the death of some, and the sale of the interest of one, thereby letting into the family a new and disturbing element, is sncli a change of circnmstrncos as makes a partition proper. There must, therefore, be a partition of the whole estate, other than the pecuniary legacies to the children of Thomas, into nine equal shares, giving to each of the testators living children, and the representatives of his deceased children, one share, the purchaser of William’s share taking his share.

3. There will be an account of the rents and profits. How the rents and profits are to be used and accounted for, will more properly bo considered when the report comes in. We remark, only generally, that it seems not to have been the intention of the testator that a strict account should be kept while the family were together. Unfair or extravagant advantages will, however, not be allowed.

There is error. This will be certified.

PER CuRiAM. Judgment accordingly.