Page:Federal Reporter, 1st Series, Volume 3.djvu/82

 law, I give and devise to each of my five children, Robert, Sarah, Thomas, Joseph, and Fenton, one-sixth of all the residue of my estate,” and to the children of a deceased daughter one-sixth, subject to certain deductions to be made to some of them for advance payments he had made.

So far as the authority to carry on these several partnerships is provided for by this will, it speaks of his shares and interests in them, and they are to be continued and kept up and represented by the executor until such time as shall be most advantageous to sell them and settle them up; not to continue the business of these firms generally and indefinitely by the use of his general assets, but only to continue the interests which he then had in them, and that only to such times as they could be most advantageously sold or closed up. But if it were doubtful, from the language used in this clause, whether the testator intended to limit the carrying on of this business to the funds already embarked in it, the residuary clause of the will, when taken in connection with this, seems to show such intention, for this disposes of all the balance of his property to his children and grandchildren.

Mr. Lindley, in his work on Partnership, 1105, says: “It is now, however, clearly settled that the extent of the liability of the testator’s estate does not exceed the amount authorized by him to be employed in the trade or business directed by him to be carried on.” And again, on the same page, he says: “A general direction to carry on a business in which a testator was engaged does not authorize the employment for that business of more of his assets than was embarked in that business when he dies.” Justice Story, in delivering the opinion of the supreme court of the United States in Burwell v. Mandeville, Ex’r, 2 Howard, 560–577, says: “And this leads us to remark that nothing but the most clear and unambiguous language, demonstrating in the most positive manner that the testator intends to make his general assets liable for all debts contracted in the continued trade, would justify the court in arriving at such a conclusion, from the manifest inconvenience thereof, and the utter impossibility of paying off the legacies bequeathed by the testator’s will,