The opinion of the court was delivered, by
Strong, J.
— We cannot adopt that construction of the will of John McMasters, Sr., for which the complainant contends. It is too plain for controversy that the legacy given to William Larimer, Jr., was charged exclusively upon those rents, issues, and profits of the land devised to John McMasters the second, which might accrue during his life. Neither expressly nor by any possible implication was it charged upon the fee devised in remainder to the defendant, John McMasters the third. The will gave the lands to trustees named to hold in trust to permit the testator’s son John to have and receive the rents, issues, and profits thereof during his natural life, for his own and his family’s support, without being subject to the power or control of his creditors, subject, however, to the payment of the sum of $7000, with its interest, to William Larimer, Jr., it being a debt due from the testator’s son John to Larimer. The will then directed that this debt of $7000 should be paid by his said trustees and his son John out of the said rents, issues, and profits, in annual instalments of $1000 each, the first instalment to be paid at the expiration of one year after the testator’s decease. The devise was in further trust to permit John, the son, to make such improvements as he might think proper, giving him power to manage the property, and to receive the rents for the uses and purposes aforesaid. The testator then devised the remainder, after the death of his son John, to John McMasters the third, the defendant, in fee simple. The legacy having been thus charged expressly upon the rents, issues, and profits of the life estate given to the first devisee, there is no room for an implication of *217a charge upon the remainder. Even more, if there were any room for it, any implication of a charge would be repelled by what is expressed. It has been insisted by the appellant that the payment of the legacy was made subordinate to the support of John, the son of the testator, and to that of his family, and to the cost of the improvements which he might think proper to put upon the lands. Hence it is inferred that if the rents were not more than sufficient to support the devisee for life and his family, and also to make the improvements which he chose to make, the legacy must be payable out of another fund; that is, out of the remainder devised to John McMasters the third. Neither this conclusion nor the premises upon which it is based can be maintained. Both are directly in conflict with the directions of the will. What was given to John the second, for his support and for improvements, was the rents, issues, and profits, subject to the payment of the legacy. It was not the legacy which was made servient, but the support and the improvements were directed to be secondary. Probably it was expected that the fund would prove sufficient for both. But every disposition which the testator made relative to the rents that might accrue during the continuance of the particular estate of his son, shows that only what should be left after meeting the claims of the legatee was given to the son. Thus the legacy was ordered to be paid in annual instalments of $1000 each, the first one year after the testator’s death. How was it possible to meet this order if John the second had a right to appropriate the whole fund to his support, and to such improvements as he might choose to make ? Undoubtedly the testator was not unmindful of his son’s necessities, and hence instead of making the whole legacy payable at once, he directed its payment in annual gales. But fixing the times of payment is irreconcilable with the position that either improvements or the support of the devisee for life were superior to the rights of the legatee; and the complainant’s bill shows that-the fund, made subject to the payment of the legacy, was more than sufficient to pay it. The testator died in 1847, and the devisee for life in 1858, eleven years thereafter. During all those years the rents were applied to the support of the devisee and his family, besides $10,000 expended in improvements. It was a misapplication, but it will not justify a resort to the remainder devised to the defendant, upon which' the legacy was not charged. The legatee can look only to the estate of John McMasters, Jr. For these reasons the court was right in sustaining the demurrer, and dismissing the bill as against the demurrants.
We need not therefore consider the other question raised by the demurrer, namely, the jurisdiction of the court.
The bill as against the trustees was abandoned.
The decree of the District Court is affirmed with costs.