The complainant insists, that the devise of the use and profits of the premises to Seth Crandall, was an express charge upon the land, and created a trust in favor of the four younger brothers.
I think he is mistaken in this view of the case. It is a specific devise of the land to Seth until the youngest grandson became of age, It was for the purpose of maintaining all, it is true; but the manner of such maintenance, the sums which should be applied for each, and the times when, were entirely discretionary with Seth. No one of the grandsons had a charge or lien on the land for this maintenance. A devise in trust to apply the profits for such a purpose, is wholly different. There the legal estate passes to the trustee clothed with the trust, which forms an interest in the land itself.
In Beekman v. Hudson, (20 Wend. 53,) the devise was in these words':—“I ordain that my wife shall have the care of “my farm as long as she remains my widow, for her support “ and maintenance, and of my children and mother.” It was held to give to the wife an estate in the land, durante viduitatei and that no estate in possession vested in the children.
Personal'bequests of the same kind are analogous, and subject to the same construction.
*In Brown v. Cassamajor, (4 Vesey, 498,) a legacy of £7000 was given to H. S., the better to enable him to provide for his younger children, and it was finally to go to those children. It was held, that the interest of the £7000 belonged to the father for his own use»
*42In Hammond v. Neame, (1 Swanst. 35,) a bequest of stock was made in trust to pay the dividends to M. H. H., for and towards the maintenance, support, and education of her children, till they attained their full age, and then to be divided between them, and in default of such children, then over to other persons. M. H. H. had no child, yet it was held, that she was entitled to the dividends for life, or until she should have a child, and that child should attain the age of twenty-one years. And see Andrews v. Partington, (2 Cox's Ch. Ca. 223—per Lord Thurlow.)
These authorities satisfy me, that the complainant has no claim upon Hoysradt, or upon the land owned by him, for the value of his maintenance since the death of his grandfather, or any part of it.
It being conceded that a partition can be made, the usual decree to that end will be entered.
As to costs.—The only litigation here has grown out of an unfounded claim of the complainant, and the decree may provide that Hoysradt’s costs, subsequent to his appearance, and up to the present time, be set off against that portion of the aggregate costs of the partition, which will be chargeable upon his four-fifths of the premises.(a)
See as to the principal point, Andrews v. Partington, (2 Cox’s Ch. Ca. 223;) Abraham v. Alman, (1 Russ. 509;) Wood v. Richardson, (4 Beav. 174;) Pratt v. Church, (4 Ibid. 177, note;) Hadon v. Hadon, (9 Simons, 438;) Raikes v. Ward, (1 Hare’s R. 445;) Crockett v. Crockett, (1 Ibid. 451.) And foi another class of cases, Hamley v. Gilbert, (Jacob, 354;) Broad v. Bevan, 1 Russ. 511, note;) Wetherell v. Wilson, (1 Keen, 80;) Woods v. Woods, (1 M. & Craig, 401;) Leach v. Leach, (7 Loud. Jur. R. 273.)