Van Duyne v. Van Duyne.

assumed by the master. As I understand the result of the measurement by the witnesses, the rail delivered could not have averaged fifty-seven pounds to the lineal yard; so that the rail delivered was not in fact one pound to the lineal yard heavier than that ordered. But while I have inclined to think that the master has fallen into an error upon this point, my convictions are not so clear as to justify me in disturbing the report, after the careful examination that he appears to have given to the subject.

The other exceptions on the part of the complainant are not sustained.

The exceptions of both parties are overruled, and the report of the master is in all things confirmed.

CITED in Buckingham v. Ludlum, 2 Stew. 352.

ELIZABETH VAN DUYNE vs. THE EXECUTORS OF ISAAC VAN DUYNE.

A testator, by his will, devised as follows:

"I give unto my wife Elizabeth the use of that part of my house which I now occupy during her widowhood, .. and her full and comfortable support during her widowhood, to be provided by my son Isaac, as my executor shall direct."—"I give unto my son Isaac

that part of my farm between the main road in front of my house and the line of my son-in-law N. H., and that part of the mountain lot which is not enclosed, subject to the payment of my debts and the support of my wife."

Isaac, the son, took the farm devised to him after testator's death, and the widow occupied the part of the house devised to her, and was supported by Isaac on the farm until his death. After the death of Isaac, the widow left the farm, and went to live with another son, who was the executor named in the will. On a bill filed by her in this court against the executors of Isaac, to enforce the provision made in her favor by the will of the testator, against the real estate devised to his son Isaac, it was held

1. That the executors of Isaac could not set up as a defence to the claim of the widow, that Isaac had, in his father's lifetime, worked for him for several years after he was of age, without compensation, except by the devise of the land, and that, by reason thereof, the land cannot, in VOL. I.

Van Duyne v. Van Duyne.

equity, be charged with the support of the widow to an amount beyond the value of her dower.

The rule is well settled, that a man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, if otherwise legal and well founded, which shall defeat or in any way prevent the full effect and operation of every part of the will. 2. That the widow did not forfeit her right to the support by abandoning the farm, and residing elsewhere. Her support was an absolute charge upon the land devised to her son without condition or restriction, and she is entitled to it, whether she reside on the farm or elsewhere. In making provision for her support, the court will have regard to all the provisions of the will, and will make such allowance as, under the circumstances, is reasonable and just.

3. That, if the widow had left the farm, or had been removed by the executor without justifiable cause, the principle adopted by this court in Schanck v. Arrowsmith, 1 Stockton 330, that the land was to be charged only with such reasonable sum as would have supported the widow if occupying the dwelling designated and provided for her, might properly be applied to this case.

4. That the circumstances of this case rendered the removal of the widow from the homestead after the death of her son Isaac justifiable and proper. The amount of the annual allowance for the widow's support was fixed by the Chancellor from the evidence taken in the cause, unless a reference should be insisted upon by either of the parties; and it was held to be right that the complainant, receiving this allowance, should release all her title to the property, as a residence, under the will.

This cause was heard on the bill, answer, and testimony.

T. Little, for complainant, in support of the position, that a person taking an estate under a will cannot be held discharged of claims or encumbrances imposed by the will, cited 1 Jarman 385; Ward on Legacies 186; 2 Story's Equity 1077, note; Ib. 1099, 1105, 1119; 2 Roper on Legacies 480, 578; Hyde v. Baldwin, 17 Pick. 308; Remington v. Kirwan, 2 Sch. & Lef. 449-50; Thomson v. Brown, 3 Green's Ch. 503.

That complainant was not bound to remain on the farm to entitle herself to the support provided for her in the will. Stilwell v. Pease, 3 Green's Ch. 74.

Mr. Vanatta, for defendants.

Van Duyne . Van Duyne.

That complainant, under the will, cannot leave testator's farm, and claim support in money. 1 Wigram on Wills, 318-19; Abraham v. Armon, 1 Russell 509; Peck v. Halsey, 2 P. Wms. 387; Jones v. Hancock, 4 Dow P. C. 145; Schanck v. Arrowsmith, 1 Stockton 314, 329

THE CHANCELLOR. Richard Van Duyne, late of the county of Morris, in and by his last will and testament, among other things, gave and devised as follows, viz., "I give unto my wife Elizabeth the use of that part of my house which I now occupy during her widowhood, and her full and comfortable support during her widowhood, to be provided by my son Isaac as my executor shall direct."—"I give unto my son Isaac

that part of my farm between the main road in front of my house and the line of my son-in-law, Nicholas Hiler, and that part of the mountain lot which is not enclosed, subject to the payment of my debts and the support of my wife."

The bill is filed to enforce the provision thus made in favor of the widow of the testator against the real estate devised to his son Isaac. The testator died on the 12th of April, 1847. The widow continued to live with her son Isaac, and to be supported by him until his death, on the 19th of May, 1858. On the 23d of May, she was removed to the residence of her son, Martin Van Duyne, who was the sole executor of the will, and according to whose direction the support of the widow was to be provided by Isaac. Since the death of Isaac, the complainant has received nothing from his estate for her support.

The support of the widow of the testator is made a charge upon the real estate devised to Isaac. The land is devised to the son, subject to the support of the wife of the testator during her widowhood. The provisions of the will are too clear and explicit to leave room for doubt or controversy. She is entitled to her support out of the land, in whosesoever hands it may be.

The first ground of objection raised by the answer to the relief sought by the bill is, that the testator's son Isaac, to

Van Duyne . Van Duyne.

whom the land was devised, did not take the land by gift, but that he was a purchaser for valuable consideration. The answer does not deny that he accepted the devise, nor that he held the land under the provisions of the will, performing the conditions thereby imposed upon him during his life. But it is averred that the devisee worked for his father several years after he was of age, and until the death of his father, without receiving any adequate compensation therefor, and that, according to the defendant's belief, all the property devised to Isaac by his father was little, if any less valuable than the equitable value of the labor performed for his father, for which he received no compensation except the aforesaid devise of land; and that, by reason thereof, the land cannot, in equity, be charged with the support of the widow to an amount beyond the value of her dower.

If these allegations were sustained by the evidence, they would constitute no defence to the complainant's bill.

It is a maxim in a court of equity not to permit the same person to hold under and against a will. Herbert v. Wren, 7 Cranch 378.

The principle, as stated by Mr. Jarman, is, that he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent with it. 1 Jarman on Wills, 385.

The rule in equity is well settled. A man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well grounded, which shall defeat or in any way prevent the full effect and operation of every part of the will. Hyde v. Baldwin, 17 Pick. 308; Stevenson v. Brown, 3 Green's Ch. R. 503; Remington v. Kirwan, 2 Sch. & Lef. 449; 2 Story's Eq. Jur., § 1077.

A second ground of defence is, that it was the intention of the testator, Richard Van Duyne, that his widow should reside in the mansion-house and be supported upon the farm, and that, by voluntarily abandoning the farm, and

Van Duyne . Van Duyne.

residing elsewhere, she has forfeited her right to the support provided for her by the will.

It is highly probable that the testator expected that his widow would continue to live with her son upon the farm. Such an arrangement he would naturally regard as most conducive to the comfort and happiness of the widow, and to the interest of all parties concerned. With a view to this arrangement, he gave her the use of a part of his mansionhouse. But there is nothing in the will requiring the widow to reside upon the farm, or making the provision for her support depend upon that contingency. Such a restriction might operate virtually to defeat the provision for the widow's support. The title to the farm, during the son's life or at his death, might pass into the hands of strangers, with whom the widow could not reside with comfort or propriety. A change of circumstances, with the advance of years and infirmities, might render it essential to her decent and comfortable support that she should reside elsewhere. But whatever might be the expediency or inexpediency of such provision, it is clear that the testator has made the support of the widow an absolute charge upon the land devised to his son without condition or restriction. She is entitled to her support, whether she reside upon the farm or elsewhere. In making provision for her support, the court will have regard to all the provisions of the will, and will make such allowance as, under the circumstances, is reasonable and just. Stilwell v. Pease, 3 Green's Ch. R. 76.

In Schanck v. Arrowsmith, 1 Stockt. 330, where, by the terms of the will, a home was provided for the widow on the land devised, which was afterwards destroyed by fire, and the devisee of the land was ordered, by the will, there to maintain and support her, it was held that the land was to be charged only with such reasonable sum as would have supported the widow, if occupying the dwellings designated and provided for her. The same principle may properly be applied in the present case in ascertaining the amount to be allowed to the widow, if it appear that she left the farm or was removed by the executor without justifiable cause.