[11] Case 5.—Francis Seagrave, et Ux,—Appellants; James Eustace,—Respondent [1st March 1705].
[Mew's Dig. xv. 1334.]
Viner, vol. 8. p. 392. ca. 15. 2 Eq. Ca. Ab. 364. ca. 19.
Alexander Eustace, Esq. having four children by Catherine his wife, namely, the appellant, Mary, Maurice, Thomas, and the respondent, by his will, dated the 17th of January 1669, devised to his said daughter Mary, out of the rents of certain lands therein mentioned, £400, to be paid to her use by £60 yearly, until the said sum was fully satisfied; and directed that the said Mary should be maintained in his house as formerly, until the said portion was paid. And after payment of this, and some other legacies, the testator directed, that his interest in the said lands should go to, and be divided between the said Katherine his wife, and the respondent.
But the testator being possessed of a considerable personal estate, which he had not disposed of by his will, made a codicil of even date therewith; and by such codicil he devised his said personal estate in the words following:
Item, My further will is, besides what I have formerly declared, that my wife and younger children shall have and enjoy all those the towns and lands of Caragh and Gingerstown, with the mill, and all other appurtenances belonging unto them; together with all my stock of sheep and wethers, and all my cows and mares, garrans, corn in ground, or to be in ground by the 1st of May next; and all my household stuff, plate, pewter, linen, and all other household stuff of what kind soever; my said wife maintaining my four younger children; and if she marry, to enjoy but one half, and my younger children the remainder; and do appoint her, my said wife, sole executrix.
In 1674 the testator died; whereupon the widow possessed all his personal estate, and greatly improved the same, so as in a few years to purchase an estate of £700 per ann. She also maintained the four younger children, in a very proper manner; and upon, or soon after the intermarriage of the appellants, paid them the said portion of £400.
Katherine, the widow, did not marry again; but having survived her two sons Maurice and Thomas, died in the year 1690, intestate; whereupon the respondent administered to her, and also to his father and two brothers, and thereby possessed himself of the whole property.
In Trinity term 1700, the appellants exhibited their bill in the Court of Chancery in Ireland, against the respondent for an account of all the testator's personal estate; and to have the ap-[12]-pellant Mary's share thereof, as one of his four younger children.
On the 21st of November 1704, this cause was heard; and on the 28th of that month, the court declared that Katherine, the mother, was entitled to the whole estate so devised to her and her children, she having maintained them; and therefore, ordered the plaintiffs bill to stand dismissed.
From this decree the plaintiffs appealed; insisting (F. Page), that the devise being joint to the wife and all the younger children, the appellant Mary became entitled to an equal share and proportion of the estate so devised; and that the court ought to have decreed an account and satisfaction thereof accordingly.
On the other side it was contended (R. Turner), that if by the words of the codicil the younger children were to have anything but maintenance, they were entitled to four parts in five, and the mother to a fifth only; whereas, if she married, which was the only thing feared and provided against, she would be entitled to a moiety. That this could scarcely be imagined to have been the testator's intention; and therefore, the true construction of the codicil must be, that if the wife maintained the children, she was to have the whole; but if she married again, then one moiety was to be taken from her, for the benefit of the children.
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