Wikle, guardian, vs. Woolley, executor, et al. by the parties. For the purposes of this report, it does not seem necessary to set it out in detail. one. The case was subsequently re-referred to the master to pass on the accounts of Woolley for 1886, and he made a report on this subject, in addition to the former The two are summarized as follows: He found that it was the primary intention of the testatrix that a support out of the estate should be furnished to those of her family who should be dependent thereon, and after such support was enjoyed it might be advanced to those of the children who had become independent of it. Hence he found that the two minor children should be supported and educated until they attain majority, and an allowance of $200 each year should be made to them; but inasmuch as there were higher charges against the estate, he recommended that no allowance be made for what was past due or now becoming due until the charges presently mentioned were paid. The pur chase of the life interest of J. C. Roper was beneficial to the estate and should be confirmed; it was a fair trade, and Roper was competent to make it. The debts of Roper were debts for which the estate was liable. When the indebtedness of the estate was paid, the whole of the rents and profits of the estate should be applied to the support and education of the minors, provided they do not exceed the sum of $200 per year. It would be better to have the lands divided if the necessary support of the minors could be secured; hence it is recommended that proper persons be appointed to divide them in kind, and the portions falling to Mrs. Hardin, Mrs. Harris and the Harris children be charged with such an amount as, with the rents and the portion falling to the minors, will make the sum allowed for their support and education; and if the legatees decline to receive the shares so allotted to them, that their parts Wikle, guardian, vs. Woolley, executor, et al. be rented out and the rents applied in accordance with the above recommendation, etc. As charges on the fund in the hands of the executor the master reported that court costs, attorney's fees and compensation for the master should be paid; after which the surplus, if any, should go to the support of the minor children. The balance due the estate by the executor to July 1, 1886, was found to be $537.49. The supplemental report on the accounts of the executor for 1886 found him to be due the estate for that year $83.08; and herein the executor is not credited with commissions. Douglas Wikle, guardian ad litem for J. C. Roper, Jr., excepted to the original report, because: (1) The master found that there were debts to be paid by the executor before the allowance to the minor of a support. This support should be first allowed, and the minor is entitled to a support at the rate of $200 per annum from January 1, 1877, subject to deduction for what has been received on this account; and the master should have found that the income of the estate was especially charged by the will with this support, and that the same had been diverted by the executor and appropriated to the purchase of the debts due by J. C. Roper and to the purchase of the life estate of J. C. Roper, making $1,924.98, to which should be added proceeds of the rent of the home place for two years; and if the estate is distributed, the amount past due J. C. Roper, Jr., with interest, and the amount which would. become due for his support should be accounted for to him. (2) To the report as to division of lands. The master should have found that no division should be made until J. C. Roper, Jr., attained his majority, and that a receiver should be appointed by the court to take charge of the lands, rent them out until that time and Wikle, guardian, rs. Woolley, executor, et al. apply the rents, profits, etc. to support and maintenance first, and the balance pro rata to the other charges against the estate, including the sum due for past support and maintenance, and that the fund now in the hands of the executor should be applied, first, to the costs of the case; second, to the compensation of the master; and then pro rata to the other charges. (3) Because the master found that Woolley was entitled to fees of his counsel for filing this bill and carrying on the litigation under it. Woolley filed exceptions to the supplemental report because it did not allow commissions. On the hearing, the court dismissed the exceptions of Wikle, and ordered that the original report be approved, except so much of it as recommended a division of the lands, this point being reserved for future decision; the exceptions being dismissed, except so much of them as referred to this recommendation. Further, that the exceptions filed by Woolley to the supplemental report be sustained. The court then directed the jury, without evidence being submitted to them, to return the following verdict: 'We, the jury, find the facts to be in accordance with the finding of the master in chancery, as contained in the report of said master." The court then made a decree in accordance with the order and verdict, directing that the estate be placed in the hands of a receiver to be appointed by the presiding judge in vacation, and that such receiver take possession of the estate and proceed to administer it according to the will as construed by the decree and under the direction of the court; that the funds in the hands of the executor be applied and paid in accordance with the recommendation of the master; and that the amount of the master's fees be left to be fixed by the Wikle, guardian, vs. Woolley, executor, et al. judge in vacation. Afterwards, in chambers, the judge fixed the master's fees and passed an order appointing a receiver. To the dismissal of his exceptions, to the directing and taking of the verdict and to the making of the decree and order, Wikle, guardian, excepted. GRAHAM & GRAHAM and MILNER, AKIN & HARRIS, for plaintiff in error. MCCUTCHEN & SHUMATE, J. A. BAKER and J. B. CONYERS, contra. BLECKLEY, Chief Justice. The sole question argued before us was, whether the minor, who is the beneficial plaintiff in error in this case, is entitled, under the provisions of his mother's will, to have arrearages which have accumulated, or are said to have accumulated in his favor, on account of his not receiving past support and maintenance and education out of the mother's estate,-whether he is entitled to have arrearages allowed him in the distribution or division of the corpus of the estate when it shall take place in the future, under the decree yet to be made in this case or in some other way? The scheme of the will evidently contemplated that the children of the testatrix, while members of the family, whether minors or adult, should have maintenance and support out of the estate; and those to whom education or further education was appropriate, whether minors or adult, would be entitled to be educated out of the estate. We think the will does not contemplate furnishing support (much less education) to adult children after their separation from the family; but if they remain members of the family, although they might have passed their Wikle, guardian, vs. Woolley, executor, et al. minority, there would seem to be no reason on the face of the will why they should not share in the support enjoyed by the family; for not only were the children to be supported, but the father also; and it seems to contemplate the keeping up of the estate, under the superintendence and management of the father, for the joint benefit of himself and his children who might remain members of the family. After that membership ceased on the part of any of them and they went ⚫ out into the world to reside elsewhere, we think they would not be entitled to expect any support from this source. 1. If the facts had remained substantially as the testatrix contemplated them, there would have been no question as to a proper and literal execution of this will; but on account of unforeseen and unexpected circumstances, a literal execution of it became impracticable. Only some approximation could be made to an execution of it. One circumstance that frustrated the scheme was, that debts came against this estate which had to be satisfied out of it,-not the debts of the testatrix, but the debts of her husband existing at the time he had conveyed the property to her. Another circumstance that frustrated the scheme was, that the husband ceased to be entitled to the management of the estate. By some interposition, through litigation and the appointment of a receiver, he was deprived of his control over the estate, and over the application of it for himself and the members of his family. These two things rendered it impracticable to carry out the intention of the testatrix. It became absolutely impossible to administer her will as she intended that it should be administered; and all that a court can do is to make some approximation to the substantial scheme which she has enunciated. |