The opinion of the court was delivered by

It appears to us that the court below erred in charging the jury that the plaintiff, under a proper construction of the will of John Sailor, was only entitled to claim and recover one fourth part of the rent of the farm lying in Silver Spring township, after deducting first therefrom the value of the widow’s annuity, given to her by the will in the following words, to wit, “it is further my will, that my three grandsons or their guardians pay to my beloved wife Susannah 25 dollars, and twenty bushels of clean wheat, and ten bushels of rye, ten of corn, and ten bushels of oats, and two tons of hay, to be hauled to her barn, and the grain in the mill, if she wants it, yearly, and every year during her natural life or widowhood.” The words of the will or codicil thereto, in which the bequestin questionis contained, are, “I give to my granddaughter Mary Ann Sailor the one fourth part of the rent, deducting first the expense therefrom, that is, of the plantation, where I bequeath to my three grandsons George, John and Mathias Sailor. It is my desire, when my grandson John arrives to the age of twenty-one years, it shall be divided and praised ; after that she is to draw no more of the rent.” In a previous part of the will this plantation, as also a tract of wood land called “Green Bank,” is devised to his three grandsons, to be equally divided between them when John should arrive at the age of tw7enty-one years, except that John was to have 100 dollars more allowed to him in dividing the plantation than either of his brothers, subject to the payment of 900 dollars to his granddaughter Mary Ann Sailor by them after they should arrive at the age of twenty-one years; each to pay to her 100 dollars annually, until the amount should be fully paid ; but in case any of the grandsons should die before the age of twenty-one years or (and) without lawful issue, their (his) whole legacy to be divided among the survivors. The court below seems to have been impressed with the idea that the annuity granted to the widow was charged upon the plantation, and was to be paid out of the rents, issues and profits thereof; for the president judge, in his charge to the jury, says, “ the claim of the widow (meaning her annuity) is specifically out of the land, and charged upon it. It constitutes an incumbrance upon it issuing yearly out of it.” And then concludes by saying that, “as the testator had before disposed of a portion of the annual value of the plantation (meaning the annuity) in favour of the widow, and made it a charge upon the land, there was but a residuum in the three devisees (meaning the three grandsons). It is only the annual profits accruing to them out of the land beyond expenses that are to be divided under the codicil;” that is, as the court held, the surplus of the rent or annual profits remaining, after paying the widow out of the same *138her annuity, as well as the ordinary annual expenses of the plantation as a farm, consisting of repairs, taxes, &c.

Now although it may be conceded that the three grandsons were ordered by the testator to pay the annuity to the widow in respect or consideration of the lands devised to them, yet it does not follow by any means, that the annuity was to be paid out of the annual profits of the land devised, unless the language employed shows that such was the intent of the testator. No language of the kind, however, appears to be connected with the widow’s annuity. The testator merely wills that his three grandsons or their guardians shall pay the annuity to his wife, without making mention of the lands devised to them, or any allusion whatever to the rents, issues or profits of the same. But it has been said that the testator must have intended the annuity to be paid out of the profits of the plantation, because no other fund is given by the will to them for that purpose. But why should the testator furnish them with funds for such purpose ? Was it not enough to induce them to pay the annuity out of funds previously owned by them, or produced otherwise, that the estate devised to them was vastly more valuable than the annuity? We are not to assume that the grandsons had no means of paying the annuity, other than out of the rents or annual profits of the plantation, because it is no part of the case stated, and, for any thing we know, they had ample means of doing so. We therefore think the court below fell into an error in considering that the amount of the widow’s annuity formed a part of the annual expense of the plantation according to the meaning of the testator; and that it was consequently to be deducted first from the rent of the plantation, be/ fore the plaintiff’s claim in amount could be ascertained. Upon looking throughout the whole of the will, we are unable to perceive any thing which tends to show that the testator intended to use the word “expense” in reference to the plantation in any other sense than in the ordinary one affixed to it in such case. The question then is, what is meant by the current aud annual expense of a farm or plantation, where it is directed to be deducted out of the rent of it ? Certainly nothing, at most, beyond the taxes assessed and the repairs made thereon.

Judgment reversed, and judgment rendered for the plaintiff.