the circumstances of the case, the nature of the property, the occupation and relation of the parties, the usages of the place and of the business to which the contract relates; and ascertaining by reasonable inference what the parties may have understood and mutually expected at the time of the making of the contract, and then adopt that construction which will best and most nearly carry the contract into effect as they intended and understood it." Fiske v. Fiske, 20 Pick. 500. In the case at bar the terms of the contract of October 20, 1883, declare that "it is expressly understood by all the parties to this agreement that the said George and Margaret Korne are to reside on the farm during the term of their natural lives, and are to occupy a portion of the dwelling-house; and the said John Korne agrees to occupy a portion of the dwelling-house along with the said parties of the first part;" and by the contract of October 23, 1882, it is provided "that John Korne agrees to keep George and Margaret Korne, his wife, in eating at his own table, the same that he has for himself." These provisions are so direct and positive that they leave no room for construction or conjecture as to what was the expectation and understanding of the parties. But the relation of the parties being that of parents and son, and the nature of the property, as well as all the other attendant facts, confirm the conclusion that it was the intention and expectation that the support and maintenance were to be furnished at the dwelling-house on the farm, and not elsewhere. The value of the farm was perhaps less than $2,000 at the time and in the condition it was when the contracts were made. Of this John bound himself to pay $1,200 to his sisters after the death of his parents, thus making the consideration for the support less than its probable cost. It also appears that the son was a farmer, and could therefore, with less expense and with more comfort, keep his parents at his own house than he could raise money to pay for their support elsewhere. Considering, therefore, the contract and all the circumstances, I have no doubt but that it was the intention and expectation of all the parties that the support was to be furnished by John at the house on the farm, and not elsewhere. It is suggested that to leave these old people in their present unhappy condition is a great hardship. Whether this is true or not is wholly immaterial, and beyond the control of the court. It is the province of courts to enforce valid, and set aside invalid, contracts, but not to vacate valid contracts, or to make or modify contracts made by competent persons on some supposed ground that no contract, or a better one, should have been made by the parties. But it is not certain that these contracts ought to be condemned as improvident. If all improper influences upon the conduct of these old people are withdrawn, they may return to their son, and receive the full consideration of their contract, and live there in comfort and contentment. The decree of the circuit court must be affirmed. JOHNSON, GREEN, and WOODS, JJ., concurred. (29 W. Va. 784) COUCH v. EASTHAM. (Supreme Court of Appeals of West Virginia. June 25, 1887.) 1. WILL-CONSTRUCTION-INTENTION. When the language of the testator is plain and his meaning clear, the courts can do nothing but carry out the will of the testator, if it be not inconsistent with some ule of law. 2. SAME. In the interpretation of a will, the true inquiry is not what the testator meant to express, but what do the words used express. 8. SAME. Where the will affords no satisfactory clue to the real intention of the testator, the court must, from necessity, resort to legal presumptions and rules of construction. But such rules yield to the intention of the testator apparent in the will, and have no application when the intention thus appears. To aid in ascertaining the true construction of the will, evidence may be received of any facts known to the testator which may reasonably be supposed to have influenced him in the disposition of his property. But parol evidence of the intention of the testator is admissible only in cases where there is a latent ambiguity.1 5. SAME LEGAL CAPACITY. When a testator has the legal capacity to make a will, he has the legal right to make an unequal, unjust, or unreasonable will. Voluntas stat pro ratione. 6. DEVISE-ESTATE IN FEE-DIRECTION TO PAY DEBTS. The rule that when a devisee, whose estate is undefined, is directed to pay the testator's debts or legacies, he takes an estate in fee, has no application when the estate of the devisee is defined and fixed by the will. 7. LEGACY-VESTING-INTEREST. It is an undisputed general rule that although a legacy vests, where no special intention to the contrary appears, at the death of the testator, it does not begin to carry interest until a year afterwards. But where the legacy is charged solely on land, or given to a child, and directed to be paid by a devisee of land, in order to make the portion of such child equal that of the devisee of the land, it should bear interest from the date of the death of the testator. (Syllabus by the Court.) Appeal and supersedeas from circuit court, Mason county; Hon. F. A. GUTHRIE, Judge. J.W. English, J. B. Menager, and J. A. Hutchinson, for appellant. Knight & Couch and W. A. Quarrier, for appellee. SNYDER, J. In April, 1884, Samuel Couch died at his home, in Mason county, the owner of a valuable estate, consisting of both real and personal property, all of which he disposed of by his last will. The will is dated May 15, 1879, and was duly probated in said county May 13, 1884. The first clause of the will is in the following words: “First. I give and devise unto my son, Peter S. Couch, the farm on which I reside, in Mason county, West Virginia, containing about nine hundred and fifty acres; but it being my desire to divide my property as near equally as may be between my two children, Peter S. Couch and Sarah Frances Eastham, I direct my said son, Peter S. Couch, to pay to his sister, Sarah Frances Eastham, the sum of four thousand dollars, and I hereby make the said sum of four thousand dollars a lien and charge upon the real estate aforesaid devised to said Peter S. Couch until the same is paid to Sarah F. Eastham or her heirs; but, in the event that said Peter S. Couch shall die leaving no lawful children surviving him, (but leaving his wife, Mary Catherine Couch, surviving him,) it is my will and desire that the title to all of my real estate aforesaid shall pass to and be vested in my daughter, Sarah Frances Eastham, or her children if she be not then living, upon the payment by her, or her said children, to Mary Catherine Couch, of the sum of four thousand dollars; but, in the event that said Mary Catherine Couch shall not then be living, it is my will and desire that said real estate shall pass to and vest in my said daughter, Sarah F Eastham, and, in case of her death, to her children, without the payment of anything in consideration therefor." The testator by the second clause of his will gave his daughter, Sarah Frances Eastham, all of his personal estate, with the exception of some specific legacies which he gave to others. By a codicil dated September 8, 1880, the testator modified said first clause by substituting the words, "two thousand 1 Respecting the admissibility of parol testimony to explain a latent ambiguity in a will or other instrument, see Decker v. Decker, (III.) 12 Ñ. E. Rep. 750, and note. dollars" for the words "four thousand dollars" which I have italicized in said clause. This is the only change made in the will by the codicil. Couch v. Eastham, 27 W. Va. 796. In April, 1886, Peter S. Couch brought the first of these suits in the circuit court of Mason county against his sister, Sarah Frances Eastham, and her children and others, for the purpose of having the said will construed. In this suit the plaintiff claims that by the first clause of the will he takes an estate in fee in the farm of 950 acres, defeasible upon his dying without leaving children surviving him, and that, if he so dies without children then living, his fee is defeated, and the farm passes to and vests in his sister if living, and, if not, then in her children, and in that event neither he nor the farm is chargeable with the $4,000 therein mentioned in favor of his sister. But if he dies leaving children, and his fee thus becomes absolute, then, when this fact is determined by his death leaving children, and not till then, does the $4,000 in favor of his sister become a fixed charge on the fee of the farm. In other words, the plaintiff contends that if the contingency happens which, by the provisions of the will, reduces his interest to a life-estate only, then there is no charge in favor of his sister, and that it is only when and in event he dies leaving children that the charge takes effect and becomes payable. The said Sarah Frances Eastham also filed her bill in said court against the said Peter S. Couch, her children, and others, to have said farm of 950 acres rented to pay the legacy of $4,000 charged thereon in her favor, or to have so much thereof sold as may be required to pay said legacy. In this suit the plaintiff claims that the plain intent of the first clause of the will is that the $4,000 is to be paid to her unconditionally, and is to be so paid whether the said Peter dies leaving children or not, or whether his estate in the farm happens to be an absolute fee, or an estate for life only, and that she has a present right to collect and enjoy the same. There was a demurrer to the bill in the first cause which the court overruled. Answers were filed to each bill, exhibits filed and depositions taken by the respective parties, and on March 12, 1887, the two causes were heard together, and the court entered a decree by which it sustained the claim of the plaintiff in the first cause, and dismissed the bill in the second cause; thereby deciding that there is no charge on the farm in favor of the sister unless and until, by the death of Peter leaving children, it shall be determined that he takes a fee-simple estate in the farm, and in that event, and then only, is there such charge. From this decree Sarah F. Eastham has appealed. No portion of the will of Samuel Couch, except what has been before given, furnishes any aid in the interpretation of the clause in controversy. The following facts appear in the record: The testator left two children, Peter S. Couch and Sarah F. Eastham. The latter is the wife of Wellington Eastham, and the mother of seven children, all of whom are infants and still living. The former was married to his present wife, Mary C. Couch, in the year 1868, 11 years before the date of the will and 16 before the death of the testator. At the time of his father's death he was about 42 years of age, and had no children then, nor has he had any since. The wife of the testator died 12 years before he did; and from the time of his wife's death until his own death the testator and his son, Peter, lived together on the farm of 950 acres. The value of said farm, according to the testimony, is about $18,000, and its annual rental value from $800 to $1,000. The net value of the personal estate paid over to the daughter, under the provisions of the will, was $9,719. The only controverted question before this court is the true interpretation and effect of said first clause of the will; and even that is narrowed down to the simple inquiry whether or not the $4,000 therein given to the daughter is an absolute gift and charge on the farm, or merely contingent upon the son's taking the farm in fee-simple. The following rules for the interpretation and construction of wills have been fully settled by the courts of Virginia and of this state: (1) When the language of the testator is plain, and his meaning clear, the courts have nothing to do but to carry the expressed will of the testator into effect, if it is not inconsistent with some rule of law. Whelan v. Reilly, 5 W. Va. 356; Graham v. Graham, 23 W. Va. 36; Rayfield v. Gaines, 17 Grat. 1. (2) In the interpretation of a will, the true inquiry is not what the testator meant to express, but what the words used do express. Burke v. Lee, 76 Va. 386. (3) Where the will affords no satisfactory clue to the real intention of the testator, the court must from necessity resort to legal presumptions and rules of construction. But such rules yield to the intention of the testator, apparent in the will, and have no application when the intention thus appears. Tebbs v. Duval, 17 Grat. 349. (4) To aid in ascertaining the true construction of the will, evidence may be received of any facts known to the testator which may reasonably be supposed to have influenced him in the disposition of his property, and also as to all the surrounding circumstances at the time of making the will. Wootton v. Redd, 12 Grat. 196; Atkinson v. Sutton, 23 W. Va. 197. In Burke v. Lee the court says: "If there be found a subject which satisfies the disposition of the property as contained in the will, evidence cannot be received to show that the testator intended a greater or a different subject or estate. The only exception to the rule excluding parol testimony of the intention of the testator is in the case of latent ambiguity." 76 Va. 389. Avery v. Chappel, 6 Conn. 270, 16 Amer. Dec. 53. The provision or clause of the will now under consideration is expressed in plain and unambiguous terms. The objects of the testator's bounty, as well as the subject disposed of, are fully identified. According to the rules before stated, it seems to me there is very little room for any attempt to construe this will. To undertake to do so can be little more than to repeat its provisions. In clear and positive terms, the testator devises to his son, Peter, his farm of 950 acres, less $4,000. He bequeaths to his daughter, Sarah, his personal estate, and $4,000 out of the farm. In making this charge on the farm, the testator explains why he does it. He says he did it in order to make the division of his property between his two children as nearly equal as may be. The context clearly shows that his purpose in using the words, "it being my desire to divide my property as near equally as may be between my two children," was to declare or explain why he required Peter to pay his daughter the $4,000. These words were not used in any substantive sense. But, if they were employed to declare an intention or purpose to divide the estate equally, still they cannot be construed to mean that the testator intended to delegate the authority to make this division to his executor or his neighbors. He made the division himself; and, whether he did so correctly or not, it was his absolute right to do it in any way he might choose, and therefore there is no appeal from his judgment, or power in the courts to change it. We have already decided in reference to this same will that if the testator made a mistake, and did in fact what he did not intend to do, we cannot go beyond the will itself to correct such mistake. Couch v. Eastham, 27 W. Va. 796. There is, however, no complaint as to this portion of the will. It is conceded by the appellee if this were all, that the division of the property would be about equal, and it would be his duty to pay the $4,000 at once. But the inequality, it is contended, may possibly result from the subsequent provision, which devises the remainder in the farm to Sarah or her children in the contingency that Peter dies without leaving children surviving him. It is said that if the fee of the farm, less $4,000, is equal to the personal estate, plus $4,000, it is manifest that a life-estate only in the farm, less the $4,000, must of necessity be greatly less than the personal estate, plus the $4,000, plus the fee in remainder in the farm. That in this latter event the division would be grossly unequal, and Peter would in fact get little or nothing, instead of one-half the estate. If we concede this to be true, unless we can find in the will itself a different purpose, we have no power to change it. When a testator has the legal capacity to make a will, he has the legal right to make an unequal, unjust, or unreasonable will. Voluntas stat pro ratione. Boylan v. Meeker, 28 N. J. Law, 274. The courts may construe and enforce a will, but they can neither make nor change one. That is the province of the testator alone. But, in reply to this position, it is contended by the appellee that the testator has on the face of his will declared his intention to divide his property equally between his two children; and that, therefore, he could never have intended or assented to such an unjust and unequal division as the one above suggested. We have already shown, as we think, that this declaration of the testator was not the manifestation of a substantive disposition of his property, but simply the reason for a particular provision in his will. If, however, it be conceded that this general declaration may be considered as the manifestation by the testator of a purpose to divide his property equally, and that this purpose should have a substantive operation in the interpretation of the will, still, that would not warrant us in imposing conditions which are not only not contained in the will, but which are in positive contradiction of other portions of the same clause of the will. The express command of the testator in his will is: “I direct my said son, Peter S. Couch, to pay to his sister, Sarah Frances Eastham, the sum of four thousand dollars, and I hereby make said sum of four thousand dollars a lien and charge upon the real estate aforesaid devised to said Peter S. Couch, until the same is paid to said Sarah F. Eastham or her heirs." This is an absolute and unqualified direction to Peter to pay to his sister $4,000 without any condition or contingency of any kind, and to make the command and requirement, if possible, still more absolute, the said sum is made an express lien and charge upon the farm until it is paid. There is no word or sentence in the will, that by any just construction can make the payment of this legacy dependent upon the dying of Peter leaving children; nor is there any instruction that it is not to be paid until Peter dies leaving children, or, in the event he dies without leaving children, that it is not to be paid at all. Whether Peter will die leaving children surviving him cannot be determined until the death of Peter occurs, and then it will be impossible for him to pay it. Yet the positive command is that Peter shall pay it, and not his heirs or personal representative. It seems to me, therefore, that the circuit court plainly erred in deciding that said legacy should not be paid unless and until Peter should die leaving children surviving him. Even if this conclusion should be made to appear, by extrinsic evidence, to be in positive conflict with any notion or opinion this court, or the witnesses who testified in these causes, might have of what would be an equal division of the testator's property in any possible contingency, we would still be bound to adhere to it; because it is the judgment or opinion of the testator as what shall be considered an equal division, and not that of us or the witnesses which is to control our decision. But if we were permitted to enter upon this forbidden inquiry, and attempt, with the aid of the extrinsic evidence before us, to reconcile the judgment of the testator with our own and that of the witnesses, it does not necessarily follow that there would be any very decided difference of opinion. Putting ourselves, therefore, in the place of the testator at the time he made his will, and having regard to the surrounding facts and circumstances of which he must have been cognizant, was the judgment of the testator that he had made, as near as may be, an equal division of his property between his two children, plainly erroneous, if the interpretation we have given the will is to prevail? According to the scheme of the will, the objects of the testator's bounty were divided into two classes. On the one side were Peter and his wife, and |