
    *Mitchells v. Johnsons &c.
    November, 1835,
    Richmond.
    Will-Power of Appointment — Renunciation of Will by Widow — Effect—Case at Bar. — Testator, after giving large pecuniary legacies to one son and three daughters, devised the land on which he lived to his wife for life ; and bequeathed her absolutely, all slaves, furniture, plantation utensils and stock on the premises, that is, she should enjoy them during life, and then dispose of them among his lineal descendants as she should think proper ; and then he directed all the residue of his estate, real and personal to be kept together for the benefit of his five sons till the youngest come of age, to be then divided equally between them : the widow renounced the will, and took her dower of testator’s real and distributive share of the personal estate, and died without executing the power of appointment vested in her by the will — Held,
    i.Same — Same—Same—Property Subject to Power.— That the remainder of the real estate expectant on the life estate devised to the wife, is not subject to the power of appointment vested in her, and being undisposed of by that clause of the will, passes by the residuary clause to the five sons.
    2. Same —Same—Same—Same.—That the personal property bequeathed to the wife for life, was subject to the power of appointment vested in her, which was a trust for the objects of appointment; that the widow’s renunciation of the will did not extinguish the trust; and as the power was not executed by the trustee, the subject shall be divided among the testator’s lineal descendants, according to the statute of distributions.
    3. Same — Renunciation by Widow — Rights of Disappointed Devisees and Legatees. — That the profits of the property, real and personal, given to the wife for life by the will, which accrued during her life, shall be applied to compensate those of the testator’s devisees and legatees out of whose devises and legacies the widow’s dower and distributive share were taken.
    Same — Same—Effect on Power of Appointment— Quere. —Whether, in the case of a testator making a provision for his wife for life, and giving her a power of appointment of the remainder, if the widow renounce the provision, she thereby renounces the power of appointment also, and disables herself from exercising it?
    Thomas Mitchell, late of Uouisa county, died in 1816, and by his last will and testament, — after bequeathing ^2000. to a trustee for the use of his daughter Barbara wife of Francis Johnson, ^2000. to his daughter Ann ^Mitchell, ^1000. to his daughter Sarah wife of Garland Thompson, and ^4000. to his son George Mitchell, — devised and bequeathed in the fifth clause of the will, as follows: “I give to my wife Sarah Mitchell the tract of land whereon I now reside, with all the appurtenances and appendages, during her natural life — I also give her absolutely all the slaves, household and kitchen furniture, plantation utensils, and stock of every description, on the premises; that is to .say, she is to enjoy them during her life, and then to dispose of them among my lineal descendants as she thinks proper.” Then followed a residuary clause, in these words: “My will further is, that my debts and specific legacies be paid within twelve months; and that all the rest and residue of my estate, both real and personal, be kept together by my executors for the benefit of my five sons hereinafter named, until my youngest son becomes of age, and then divided into five equal parts;” one of which fifth parts, the testator devised and bequeathed to James Innes, upon a very peculiar trust for his son Francis; one to Innes, upon a like trust for his son Thomas; one to his son William, one to his son Alexander, and the other to his son George. The testator’s son William, one ot the executors appointed in the will, took probat thereof and qualified as executor.
    The testator left eight children ; namely, Barbara, the wife of Francis Johnson (who was a daughter of his first marriage), Sarah the wife of Garland Thompson, Ann the wife of Hugh Pettus, William, George, Alexander, Francis and Thomas Mitchell.
    The testator’s widow, Sarah Mitchell, renounced the will, and took the provision made for her by law, in lieu of that made for her by the fifth clause, according to the statute 1 Rev. Code, ch. 104, § 26, p. 381. *And, thereupon, William Mitchell, the executor, sold all the personal property bequeathed by that clause to the widow, except the slaves; and held the proceeds of sales, and the slaves, during his life. He died in 1822, leaving a will of which Garland Thompson, one of the executors therein named, took probat, and thus became the executor of Thomas Mitchell, the first testator; and so became accountable for the slaves, and for the proceeds of sales made by William Mitchell of the other property, mentioned in the fifth clause of Thomas Mitchell’s will. And Sarah Mitchell, widow of the testator Thomas, died in 1825, without executing, in any manner whatever, or attempting to execute the power of appointment given to her in that clause.
    Francis Johnson and Barbara his wife exhibited their bill against Garland Thompson, as the 'executor of the testators William and Thomas Mitchell, and all the other surviving children, devisees and legatees, of the testator Thomas, in the superiour court of chancery of Richmond, — setting forth the will of the testator Thomas, and all the facts above stated ; and insisting, that either the testator must be regarded, under the actual circumstances of the case, as intestate in respect of the whole subject mentioned in the fifth clause, or at least, the x'personal part thereof; or, as so far testate, in respect of the whole, and if not of the whole, certainly of the personal part of the subject, as that the same was devised and bequeathed to his lineal descendants; which last they insisted, was the true effect of the will, since the power of appointment had not been executed by the widow and trustee; but that, in either case, the property was now divisible and distributable among the testator’s children, and the plaintiffs were entitled to one eighth part thereof. Therefore, the bill prayed an account of the proceeds of sales made by William Mitchell, and of the profits of the property remaining in kind, and a decree for a division of the whole subject among the parties thereto entitled according to law.
    The answer of Garland Thompson as the executor, and of Thompson and wife, submitted the construction of the will to the judgment of the court. And they exhibited, 1. a deed executed by Alexander Mitchell to William Mitchell, in his lifetime, whereby Alexander sold and conveyed to William, all his interest in the real estate devised to him in his father’s will; 2. the will of William Mitchell, by which, after some pecuniary legacies (which had been all paid), he gave all the residue of his estate real and personal to his mother Mrs. Mitchell, and his sister Mrs. Thompson, to be equally divided between them; and 3. the will of Mrs. Mitchell, devising and bequeathing all her estate to her daughter Mrs. Thompson, including, expressly, all the property left her by her deceased son William, and appointing Garland Thompson her executor. And so, these defendants claimed Alexander Mitchell’s share of the real estate in question, and all of William Mitchell’s share, as well as Mrs. Thompson’s own share, of the whole subject, real and personal, whatever such shares might be.
    The answers of the defendants Francis, George and Thomas Mitchell, denied the right of the female plaintiff to any share of the subject, real or personal, mentioned *in the fifth clause of their father’s will, on the ground 1. that the pecuniary legacy of .¿2000. given to Mrs. Johnson, was all the testator intended she should, in any event, receive of his estate; and 2. that the whole subject mentioned in that clause, under the actual circumstances that had occurred, sunk into the residuum, and passed by the residuary clause to the testator’s five sons.
    The defendants Pettus and wife, and Alexander Mitchell, being non-residents, were proceeded against as absent defendants, and the bill was regularly taken pro confesso as to them.
    The chancellor, upon the hearing, declared that the plaintiffs were entitled to their just and equal share of the subject, real and personal, mentioned in the fifth cause of the testator Thomas Mitchell’s will, according to the prayer of their bill ; and he directed accounts to be taken, 1. of the proceeds of sales made by William Mitchell, in bis lifetime, of any part of the subject; 2. of the names, ages and sexes of the slaves, and their increase; 3. of the profits of the slaves; 4. of the lands comprised i-n the fifth clause, their quantity and situation, and the profits thereof, and by whom received; and S. an account, if required, of Garland Thompson’s administration of his immediate testator William Mitchell’s estate. He instructed the commissioner, in stating' the accounts of profits, to distinguish such as accrued before, from those which accrued after, the death of Mrs. Mitchell, the widow. And if all parties should consent to waive the account of the names, ages and sexes of the slaves and their increase, in that case, he ordered a division of the slave property to be made among them, by commissioners in the country, according to their rights, as insisted on in the bill.
    The defendants, George . and Thomas Mitchell, applied by petition to this court, for an appeal from the decree; which was allowed.
    *The cause was argued here by Johnson and John Robertson for the appellants, and by Leigh for the appellees.
    I. The first question argued, was, Whether the land mentioned in the fifth clause was subject to the power of appointment thereby vested in the widow, or only the slaves and other personal property therein mentioned?
    The appellants’ counsel maintained, that the power of appointment applied only to the personal part of the subject; that the remainder of the real, after the termination of the life estate therein devised to the wife, was left undisposed of in. this clause of the will, and therefore was part of the residuum of real estate devised by the residuary clause to the five sons.
    The appellees’ counsel contended, that the power of appointment related to the real as well as the personal part of the subject : for, he said, the testator gave his wife the land on which he resided, for life,— and then gave her for life, the slaves and all the other personal property “on the premises,” — thus shewing, that the real and personal subject were blended in his mind; and then gave her the power, at her death, to dispose of “them” (meaning all, land and personalty) among his lineal descendants. But if this were not so, he insisted, that the testator was wholly intestate as to the remainder of the real estate. For, that it was not comprised in the residuary clause, he said, was obvious from the consideration, that all the rest and residue of the real and personal estate, disposed of by the residuary clause, was directed to be kept together by the executors for the benefit of the five sons, till the youngest should come of age; a provision, which could not possibly have been intended to embrace the land he had devised to his wife.
    II. The next question was, as to the effect of the disposition to the widow for life, and the power of appointment given to her (whatever was the subject of the *power of appointment, — the real and personal, or only the personal subject), under the circumstances that had actually occurred, of the wife’s renunciation of the will, and failing to execute the power of appointment.
    The appellants’ counsel said, that the rule was settled, that all personal property not well disposed of by the will, though there was an attempt to dispose of it, went to the residuary legatee. Here, the personal property was not effectually given to the widow, for as she refused to take it, the gift was not complete. Therefore, whatever was of the slaves and other personal property bequeathed to her, which did not fall within her distributive share, was undisposed of, during her life at least, and therefore sunk into the residuum. And whether the remainder of the personal property bequeathed to the widow, passed to the residuary legatees at her death, or to all the testator’s children, depended on the question whether that remainder was well disposed of by the will? Now, the will did not, in terms, limit that remainder to any body; it did not, in terms, create any remainder. It, in terms, gave the property to the widow “absolutely;” and if it had stopped there, there could have been no doubt, that upon the widow’s refusal to take it, it would have sunk into the residuum. But this absolute property given to the widow, was afterwards qualified by the provision, that she should enjoy it during her life, and then dispose of it among the testator’s lineal descendants as she should think proper. Then, the only effect of that qualification was to restrain her from disposing of the subject, beyond her life, to any other than the testator’s descendants: within that limit, her discretion was absolute: she might have disposed of it as she pleased, by parol, deed or will, by gift, sale or bequest, provided she sold, gave or bequeathed it, to or among the testator’s lineal descendants. Her power to dispose of the remainder, was a power coupled with an interest; that is, it was intended to be so. The *whole devise and bequest, indeed, was intended for the benefit of the widow: and when she renounced the will, she renounced all benefit under it, including the power of appointment. The testator could not have intended, that this power to dispose of the subject should remain with the widow, notwithstanding her renunciation of the will, and taking the provision made for her by law; for then, she would have a double satisfaction — first, her legal provision — and then the full benefit of the remainder of the property bequeathed to her, by making disposition of it among the testator’s descendants. The widow, by renouncing the provision made for her by the will, took what she deemed of greater value, the provision made for her by law; and she took this, not from the pecuniary legatees, but from the residuary legatees, whose portions of the residuary estate were proportionably diminished. It was, thej' said, but equitable to hold, that when the widow took her legal provision out of the residuum, in lieu of the testamentary provision, the whole property given to her by the will (life estate and all) fell into the residuum, in lieu of what she withdrew from it. Or, the widow’s renunciation of the will, might well be considered as a virtual appointment to such of the lineal descendants as were residuary legatees, and that for the valuable consideration given by them, in furnishing her, out of the residuum, the whole provision given her by the law; a construction, which would prevent the widow from doing injustice to those descendants, by taking from them, whom the testator preferred, that which he had expressly given them, without any equivalent. Or, it might be a fair interpretation, to hold the power of appointment given to the widow, contingent upon her permitting the residuum to go as the testator has appointed it; and the condition being broken, the power did not arise, or any right under it. Or, the power of appointment among the testator’s lineal descendants, might be considered as appurtenant *to the life estate given to the widow; and if so, her refusal to take the life estate extinguished the power, and prevented the rights of the lineal descendants from ever vesting. But if the chancellor’s decree was right in principle, yet, at any rate, the profits of the whole subject given by the fifth clause to the widow for life, which accrued during her life, ought to be applied to compensate those devisees and legatees, whose portions were diminished by the assignment of her dower, and of her distributive share of the personal estate.
    Leigh, for the appellees,
    said, the chancellor had made no decision respecting the disposition of the profits; he reserved that question for consideration upon the final hearing, when the accounts of the profits should be before him; so that upon this appeal from the interlocutory decree, that point was not properly before this court. Yet he had no objection to the court considering it now, and indicating the proper disposition of the profits; and he submitted the point without further remark upon it. As to the main point, he maintained, that whatever was the subject to which the power of appointment given to the widow had relation, it was quite obvious that the testator gave her only a life estate in it, and gave the remainder to his lineal descendants, as the widow should think proper to appoint the same to and among them. Such a power of appointment was a trust; and the trustee, in the execution of such a power, would indeed have had a right to divide the subject among the objects of the testator’s bounty, in such proportions as the trustee thought proper, yet so as to give each and every one a reasonable share: and if the trustee made a bad appointment, either omitting one or more of the objects of the bounty, or appointing an illusory share to any of them; or if the trustee failed to make any appointment at all; in either case, the court of chancery took upon it the execution of the trust, and in doing so, divided the subject according to the statutes of descents and '^distributions. Knight v. Yarbrough, Gilm. 27. In the present case, if the power of appointment given to the widow remained in her, notwithstanding her renunciation of the provision made for her by the will, then this was the simple case of a power of appointment nowise executed by the trustee to whom it was confided. But, supposing that the widow’s renunciation of all estate and benefit under the fifth clause of the will, was also a renunciation of the power of appointment, thereby confided to her, over the remainder expectant on the life estate given to her; yet she did not, and she could not, by renouncing the benefits given to herself by the will, defeat the rights of the testator’s lineal descendants, among whom she was empowered to appoint and divide the subject. If she did renounce, and had a right to renounce, the character of trustee, as well as that of dev-isee and legatee, she had no right or power to extinguish the trust, and deprive the cestuis que trust of their rights. The trustee could no more destroy the trust, which such a power of appointment created, by refusing to accept it, than by failing to execute it after accepting it. In every view, therefore, the principle of the chancellor’s decree was right; namely, that the property which was the subject of this power of appointment, ought now, in the actual circumstances of the case, to be divided among the testator’s lineal descendants, according to the statutes of descents and distributions; which gave that rule of equality, by which courts of equity invariably administered unexecuted, or ill executed, trusts of this kind.
    
      
      Will — Power of Appointment. — The principal case is cited and approved in Milhollen v. Rice, 13 W. Va. 564.
    
    
      
      Same — Widow’s Renunciation. — The principal case is cited in Morriss v. Garland, 78 Va. 227, for the proposition that the renunciation of the will by the widow will not be permitted to disappoint the will of the testator and to unsettle his scheme for the disposition of his property further than may be absolutely necessary for the enforcement of her rights. The principal case is cited and approved in Cowan v. Epes, 2 Pat. & H. 527; Morriss v. Garland, 78 Va. 226.
      Same — Same—Election.—In Findley v. Findley, 11 Gratt. 439, the court said: “The appellee cannot assert her paramount claim to distribution against the will, and also claim the provision, or any part of it, made for her by the will. Having made her election to take the first, she must give up the last to indemnify the parties who are disappointed by her election. Mitchells v. Johnsons, 6 Leigh 461; McReynolds v. Counts, 9 Gratt. 242.” See foot-note to McReynolds v. Counts, 9 Gratt. 242.
    
   . BROCKENBROUGH, J.

I am of opinion, that the power of appointment conferred on the widow, by the fifth clause of the testator Thomas Mitchell’s will, extended only to the slaves and other personal property, and did not extend to the land, comprised within that clause; that on the death of the widow, the personal subject *should have been distributed according to the statute of distributions, among all the lineal descendants of the testator; and that the land ought to fall into the residuum, and be divided among the testator’s five sons. Therefore, there is no error in so much of this interlocutory decree of the chancellor, as declares that the plaintiffs are entitled to an equal share of the personal subject according to the prayer of their bill; but the decree is erroneous, in declaring, that the plaintiffs are entitled to an equal share of the real estate. And, as the widow renounced the provision made for her by the will, and as the allotment of her dower and distributive share of the personalty, may have lessened the provision made by the will for the residuary devisees and legatees, the rents and profits of the real estate, and the profits and interest of the personal subject, comprised within the fifth clause of the will, which accrued during the life of the widow, (unless they constituted a part of the dower and distributive share assigned to her,) should be applied, as far as they will go, towards compensating any loss which may have been sustained by the residuary devisees and legatees; and, if they require it, the court of chancery should direct an account to be taken of those rents and profits, from the death of the testator to the death of the widow, and direct them to be divided among the residuary legatees and devisees.

CARR, J.

I think the decree clearly wrong in declaring the plaintiffs entitled to a share of the land mentioned in the fifth clause of the will. That is expressly given to the widow for life; and the remainder, being undisposed of, falls into the resid-itum. Then the question is as to the personalty comprised in the clause. As to this, my opinion is, that the decree is right. The renunciation of the widow rendered in operative every devise and bequest made for her benefit; she could not *claim against the will, and under it: but her renunciation could not affect the rights of others under the will. The bequest to her of the slaves &c. for life, with a power at her death to dispose of them among the lineal descendants of the testator, as she might think proper, made her a trustee for those descendants; and no act of hers, or refusal to act, could disappoint that trust. Notwithstanding her renunciation, then, I consider that she might have exercised the power of appointment, and having neglected to do so, equity will interpose and execute the trust. In doing this, it will take the statute of distributions for its guide, where it is necessary. Here, the eight children or their descendants were, clearly, the persons meant by the words “lineal descendants.” The cases which settle these principles, are numerous; Knight v. Yarbrough, Gilm. 27; Pierson v. Garnet, 2 Bro. C. C. 38, 226; Malim v. Keighley, 2 Ves. jr. 333, 529, and many others. In the last case, the ruling principle is thus expressed by the master of the rolls, and approved by lord Loughborough on appeal: “Wherever a person gives property, and points out the object, and the way in which it shall go, that does create a trust, unless he shews clearly, that his desire expressed, is to be controlled by the party, and that he shall have an option to defeat it.” Here, the objects were clear; “among” the testator’s “lineal descendants.” The trustee could not under the word “among,” have left out any one of them. The words “as she thinks proper,” relate to the proportions in which she might give. “My lineal descendants” are narrower words than “my relations,” which have often been decided to be certain enough. In Pierson v. Garnet, the chancellor says, — “If the word used had been relations, it would go to those within the statute of distributions; but under these words [meaning “among the descendants of C. ”] it will go only' to such relations as are descendants, which is still more limited.” The way *'in which the property shall go, is pointed out with equal clearness. I think, therefore, that the decree should be reversed, and the case sent back, to be proceeded in according to the principles of this opinion. The chancellor, I observe, has, among other things, directed an account to be taken of the profits both of the land and slaves mentioned in the fifth clause; and that the commissioner, in such account, shall distinguish between the profits which accrued before, and those which accrued after, the death of the wife. It will be remarked, that the plaintiffs by their bill, claimed no interest in the subjects of the fifth clause, prior to the death of the widow; and could not, because they claim those subjects only after, her death. It is not, therefore, perceived for what purpose this account was ordered; but as this is an appeal from an interlocutory decree, and this court has often said, that in such cases, it would only correct what the court below had actually done amiss, it would, perhaps be premature to give, at this time, any opinion as to the propriety of this order; or the proper destination of these profits, when they shall be ascertained; especially, as the report itself will probably develop facts materially influencing such opinion.

CABELL, J.

I think the chancellor’s decree correct, so far as it relates to the personal subject mentioned in the fifth clause of the will; but that he erred as to the real estate which was the subject of that clause. The land sunk into the residuum, and must pass, under the residuary clause, to the Ave sons.

But in his case, an important question arises, which, although it must have frequently arisen in other cases, has never, so far as I am informed, been judicially decided. The widow having renounced the provision made for her by the will of her husband, and having claimed that part of the estate to which the statute, in *such case, entitles her, the other arrangements of the will may, in consequence thereof, have been materially broken in upon and disappointed. What, under such circumstances, is to be done with that part of the estate devised and bequeathed to the wife, but which she has renounced? Shall it be equally divided between all the heirs and distributees, according to the statutes of descents and distributions, as if the testator had died intestate? I think not. The legislature could not have intended that the renunciation of the wife should disappoint the will of her husband, farther than is absolutely necessary for the enforcement of her rights. In all other respects, it ought to be executed, as nearly as possible according to the wishes and intentions of the testator. Eor this purpose, the property renounced by the widow should be subject, in the first place, as far as necessary, to the indemnification of those legatees or devisees, whose devises or legacies may have been impaired or lessened by the effect of the renunciation of the widow. In this case, a life estate only was given to the wife by the will. I am, therefore, of opinion, that the profits of that estate, real and personal (except such part thereof as may have been assigned to her in consequence of her renunciation) shall be applied to the indemnification of such of the devisees and legatees as may have sustained loss, and that all proper accounts should be directed for that purpose.

I am of opinion, that the decree should be reversed with costs, so far as it is inconsistent with these principles, and the cause remanded, to be proceeded in to a final decree.

BROOKE, J., concurred.

TUCKER, P.

I have no doubt, that the lineal descendants of the testator are entitled equally, under the clause of the will in question. But there is a view of *the case, which does not appear to have been taken in the court below, and which seems to me essential for the fair adjustment of the rights of the parties.

By our law, a widow is entitled to renounce the provision made for her by her husband’s will, and betake herself to her dower and distributive share of his estate. Where she does this, she must of necessity break up the provisions of the will, unless the testator has taken the precaution to make other dispositions in anticipation of such a step. Such a precaution has not been observed here. A provision is made for the wife, which she has renounced, and the testator has not provided for that event. What then is the effect of this renunciation? It throws the rights of the wife upon the other parts of the estate, and relieves that which was burdened with the provision for her. What then does equity require? Assuredljq that the interest devised to her should be given to the party or parties, whoever they may be, who are disappointed of their legacies by this election, and overthrow of the will of the testator to compensate their loss as far as it will go.

I have not been able to find a case exactly in point, but the english cases upon election are, to say the least, very strongly analogous. There, as well as here, it is a rule, that no person shall claim an interest under a will, and at the same time defeat its provisions, where it is in his power to do so. In such cases, he is put to his election. If he takes under the will, he must acquiesce in all its provisions, though it should even have disposed of his own property to a third person. If, on the other hand, he renounces the will, he loses all claim to the legacies bequeathed to him. And what is to become of them? I apprehend they are always to be applied, to make satisfaction to the disappointed devisee. It is true, that some difference of opinion has been entertained, as to the extent to which the party electing will forfeit his rights under the will; some judges holding *that “the equity of the court is to sequester the devised interest quousque, until satisfaction is made to the disappointed devisee;” and others holding, that the whole is forfeited, and that it is not sufficient that the party electing should “give up sufficient to compensate those who are disappointed.” Lady Cavan v. Pulteney, 2 Ves. jr. 544, 560; Green v. Green, 19 Id. 664. But it is obvious, that this difference does not respect the destination or disposition of the fund, but only the extent of the surrender or forfeiture of right under the will. In either event, I apprehend, “the court lays hold of what is devised, and makes compensation out of that to the disappointed party.” Accordingly, in Whistler v. Webster, 2 Ves. jr. 367, 372, the court declared “that no one claiming a legacy under the will shall have any part of the fund devised, to the disappointment of those to whom it is given by the will. If they will have this fund,” said the chancellor, “I will take away their legacies, which shall go in compensation, as far as they will.” These principles appear to me peculiarly proper in those cases where a widow breaks the will of her husband. When she does so, whatever is given her by the will, should go in compensation to those out of whose interests her legal provision is carved.

If this be so, then it will be proper to direct an inquiry on whom has fallen the burden of the widow’s dower rights arid distributive share, in order that the rents and profits, during her life, of the subject devised to her, may be decreed in compensation to those who have been disappointed, in proportion to their respective losses by her election. From the opinion expressed by the chancellor, it does not appear whether this was intended by him; though the direction that the commissioner should discriminate between the rents and profits accruing in the lifetime of the widow, and those subsequent to her death, would seem to indicate such a design. However, the decree being interlocutory, *cannot be pronounced erroneous for this omission. But it is erroneous in this, that the remainder in the lands on which the testator resided, does not pass to the lineal descendants generally, as the chancellor seemed to think, but sinks into the residuum devised to the testator’s five sons. The rents and profits of that land during the widow’s life, if it was not assigned to her in part of her dower, together with the rents and profits of the personalty during her life, ought to be applied in compensation to the relief of those whose devises and legacies may have been trenched upon by the assignment of the widow’s dower and distributive share; and the personalty bequeathed to the wife for life, with remainder to the lineal descendants of the testator, must be distributed among them all, and does not fall into the residuum as was contended bjr the appellants’ counsel.

Upon the whole, I am willing to concur in reversing the decree so far as it is inconsistent with the foregoing opinion, and to add a direction, that it shall be ascertained, on whom has fallen the burden of the widow’s dower right and distributive share of the testator’s estate, in order to their relief, upon the principles already stated.

DECREE — That this court, dissenting from the opinion expressed by the chancellor, that the real estate comprised in the fifth clause of the testator’s will, passed under that clause to the lineal descendants of the testator, and thinking that the remainder of the real subject expectant on the life estate given to the widow, sunk into the residuum, holds the decree, in that respect, erroneous: and that this court is further of opinion, that the rents and profits of the real estate during the widow’s life, and the profits of the personal subject also during her life, in the fifth clause mentioned, should be applied, so far as necessary, to compensate any loss sustained by those devisees and legatees, whose devises *and legacies had been lessened by the assignment of the widow’s dower and distributive share of the testator’s estate; and that proper inquiries should be instituted as to those matters, by reference to a commissioner, or otherwise, as should seem expedient to the court of chancery. Therefore, decree reversed, with costs to the appellants, and cause remanded, to be proceeded in according to the principles here declared.  