
    *Wood & Wife v. Sampson's Ex'or & als.
    January Term, 1875,
    Richmond.
    Absent. BounmN, J.
    
    1. Wills — Construction—Legacies. —A testator, owning- real and personal estate, after several legacies to grandchildren, says: ’‘All the remaining estate, property and credits, whether real and personal, which 1 may own at my death, I devise and bequeath to my daughter S.” The real estate given to S is subject to the satisfaction of the legacies.
    2. Same — Same—Same—Residuum.—Testator gives a legacy to his wife; hut she dies before him. The legacy will not sink into the residuum of the estate. but will pass to her issue.
    Richard Sampson, of the county of Gooch-land, died in 1864. He left a will which was made in August 1855, and a codicil which was made in September 1863. By the first clause of his will he gave to his wife Mary Sampson $20,000, to bear interest from his death, payable semi-annually, till the full discharge of the principal; also a carriage and horses, and two slaves.
    He gave to each of his four grandchildren, children of his late son the Rev. F. S. Sampson, $10,000, payable without interest as each attains the age of twenty-one or .marries. He made no provision for the intermediate maintenance and education of these grandchildren, as he says, because, from advances made by him to their father, his estate will suffice for such purposes. ’x’He makes a like bequest of $10,000 to each of his two grandchildren, the
    children of his late daughter Janetta Wood, payable without interest as each attains the age of twenty-one or marries. And he makes no provision for their maintenance or education, because of advances made to their father.
    lie confirmed and ratified all advances theretofore made by him to his children or their husbands, and directed that they should not be accounted for as a part of his estate. And he then says:
    “All the remaining estate, property and credits, whether real or personal, which I may own at my death, I give, devise and bequeath to my daughter Susan Josephine, the wife of Dr. William T. Walker.”
    He appointed Dr. Walker his sole executor, and directed that no security should be required of him.
    At the time Mr. Sampson made his will, and at his death, he owned a valuable real estate on which he lived, upwards of sixty slaves, horses, &c., every thing necessary for the profitable cultivation of the estate, and a large amount in stocks of different joint stock companies. He had advanced to his son F. S. Sampson from thirty-five to forty thousand dollars, and to his son-in-law Richard Wood a farm on James river, for which he gave $13,500, and which some years afterwards sold for $35,000. He and his wife were old, and their daughter Josephine lived with them until she was married, and after a short absence she and her husband came back and lived with them until their deaths respectively. Mrs. Sampson died in the lifetime of her husband.
    At the close of the war the negroes had been emancipated, many of the horses had been carried off by the enemy, the stock destroyed, and the stocks had become comparatively worthless, and there was little left of the estate but the land.'
    *In 1867, Mary J. Wood, one of the legatees of Mr. Sampson, instituted her suit in equity in the Circuit court of Goochland county against William T. Walker, as executor of Richard Sampson, deceased, and the said Walker and his wife, as devisees of said Sampson, and the other legatees under the will and a codicil which had been made in 1863, to recover her legacy, and her share of the legacy to Mrs. Sampson, and seeking to subject the real estate devised to Mrs. Walker. The plaintiff af-terwards married Henry Wood, and the suit was conducted in their name; and after various proceedings, came on to be heard on the 7th of September 1869, when the court held that the will of Richard Sampson did not subject the real estate devised to Mrs. Walker to the satisfaction of the legacies; and that Mrs. Sampson having died in the lifetime of her husband, the legacy to her sunk into the residuum of the estate; and decreed that the bill, so far as it sought to subject the real estate to the satisfaction of the plaintiff’s legacy, and to recover a share of the legacy to Mrs. Sampson, be dismissed. And the report of the commissioner was recommitted. From this decree Wood and wife applied to this court for an appeal; which was allowed.
    Jones & Bouldin, for the appellants.
    Guy,-for the executor.
    
      
      Tie had been counsel in the cause.
    
    
      
      Wills — Construction.—The principal case is cited in Lee v. Lee, 88 Va. 809, 14 S. E. Rep. 534; Smith v. Mason, 89 Va. 716, 17 S. E. Rep. 3; Wildberger v. Cheek, 94 Va. 520, 27 S. E. Rep. 441.
    
   STAPLES, J.,

delivered the opinion of the court.

The court is of opinion, that whether general pecuniary legacies are chargeable on real estate is always a question of intention ; that this intention is to be ascertained, not by parol proof of the declarations of the testator, but by reference, as in other cases, to the provisions of the will and the circumstances surrounding *its author. And in examining the instrument, the language used must receive that interpretation which a long series of decisions have attached to particular words. One of the- rules or canons'of construction is, that where there is a general gift of legacies, and then the testator gives the rest and residue of his property, real and personal, the legacies are chargeable upon the realty. It is considered that the testator, in blending his real and personal estate into a common fund, plainly indicates his purpose to make no distinction between them. And as there is no previous devise of any portion of the real estate, the residue can only mean what remains after .satisfying the legacies.

This is the established doctrine of the English courts; is almost universally recognized in this country; and was acted on by the court in Crouch v. Davis' ex’or, 23 Gratt. 62; where the authorities are cited. See Greeville v. Brown, 7 House of Lords 'cases 688; Smith’s ex’or v. Smith, 17 Gratt. 268. In the present case the testator, after various pecuniary legacies to a large amount, gives all his remaining estate, property and credits, real and personal, to his daughter, Mrs. Susan J. Walker. The testator in thus using the words 1 ‘remaining estate,” can only mean what remains after the previous dispositions; and as there is no previous disposition of any part of the realty, the legacies must be looked to to satisfy the terms of the residuary clause. The court is therefore of opinion that the Circuit court erred in holding that the legacies given by the testator are not chargeable upon his real estate.

The court is further of opinion that Mrs. Mary Sampson, the wife of the testator, having died during his lifetime, leaving issue who survived the testator, the legacy of twenty thousand dollars which was given to her passed to her issue under the provisions of the x13th section, chap. 122, Code of 1860. That section declares that “if a devisee or legatee die before the testator leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof be made or required by the will. ’ ’

There is nothing in the will here indicating in the slightest degree, that the testator designed or desired a different disposition of the legacy from that pointed out by the statute. The court is therefore of opinion that the Circuit court erred in holding that the legacy aforesaid lapsed by the death of Mrs. Sampson in the lifetime of her husband, and passed into the residuum of the estate.

Eor these errors the decree must be reversed, and the case remanded for further proceedings in conformity with these views.

Decree reversed.  