
    KNOXVILLE:
    SEPTEMBER TERM, 1853.
    Blair and Gillenwater, adms. vs. David Snodgrass and Jacob Lyon, et als.
    
    Will. Revocation. Executory Contract; sale of land by, previously devised. "Where a testator by executory contract, sells land which he had previously devised by will; in the view of a court of equity, such sale operates as a revocation of the will pro tanto, provided the contract of sale, be such as the court can in view of well settled principles, specifically execute. Don-ohoo vs. Lea, 1 Swan R., cited and approved.
    Specific Performance. Breach of Contract. Bemedy. It being a higher and more perfect remedy than the damages which a court of law may award for a breach, it is a matter of course, that a court of equity will decree a specific performance of a contract for the sale of real property, in the absence of any valid objection. As when the contract is in writing, signed by the party to be charged, for an adequate consideration, certain in its terms, fair in all its parts, and capable of being performed.
    Statute op Frauds. The Eoion of the Instrument. The form of an instrument purporting to be a contract for the sale of real estate, is not material, the statute of frauds merely requiring that the contract or some memorandum or note thereof, shall be in writing. Nor is it essential to its validity, that the whole should be comprised in a single document. If it can be clearly and plainly defined from any writings of the party — or even from bis correspondence it will suffice. But when several papers are relied upon, as written evidence of a contract for the sale of land — those papers must contain intrinsic, proof that they relate to the same contract; for if the court cannot ascertain the terms of the same from the writing or from some other writing to which it refers, with reasonable certainty, the writing does not take the case out of the statute.
    Contract. Vagueness. Parol Proof to Explain. It is a well settled rule under the statute of frauds, that when divers writings are relied upon to elucidate a contract for the sale of land, parol proof is not admissible to connect or explain them, or to show that the several writings relate to the same transaction.
    "Will. Residuary Clause. Construction. When the testator had already made provision for the children of his son J. S., doc’d, and by the residuary clause oí the will bequeathed the fund equally to all his heirs, “ except that G.’s children and F.’s children ” (who were the children of his daughter who had been twice married,) were to have an equal part or one share with his other heirs, held, that by the word heirs, the testator meant hie children, and that the heirs of J. S. wore excluded.
    lfROM SULLIVAN.
    This was a bill filed in the Chancery Court at Jones-borongh, by the complainants as administrators “ with the will annexed,” of William Snodgrass, deceased, against David Snodgrass and other heirs and devisees of the said testator, and Jacob Lyon, asking a construction of said will, which is sufficiently quoted in the opinion, in reference to the interest of the “ heirs of James Snodgrass,” under the residuary clause thereof — and asking the construction of a certain contract in writing, which is also quoted in the opinion, whereby the testator sold to said Jacob Lyon certain tracts of land — subsequent to the execution of the will, which had been devised by the same to the “heirs of James Snodgrass, deceased;” especially in relation to the effect of said contract upon said devise. Testimony was produced before the Chancellor, to show, that part of the land sold to Lyon was the same devised to “James Snodgrass’ heirs,” and that the lines and boundaries were shown to Lyon at the time of the contract, and that the reason they were not more minutely described in the written contracts, was the want of skill in the draftsman thereof. The testator was induced, as appears in proof, to sell said land, by the request of the devisees, and upon verbal condition that they were to be reimbursed in money. It appears in proof also, that the legatees mentioned by the designation of “ Joel Gillenwater’s children and John Fleming’s children,” are the children of testator’s daughter who was twice married. The bill submits multiplied questions, in reference to the proper adjustment of the rights of the heirs and devisees, which it is not important to notice; the Chancellor, (Hon. Thomas L. Williams,) among many other things not necessary to be here stated, decreed, a specific performance of the contract with Jacob Lyon, for the land devised to the “ heirs of James Snodgrass, ” and subsequently sold to him; that the conveyance to Lyon was a revocation of the devise to the heirs of James Snodgrass; and that said heirs were not entitled to the purchase money, or to any interest under the residuary clause of said will; from which decree the “heirs of James Snodgrass appealed to this court.
    UELSOir, for Complainants.
    1. The receipts executed by the legatees, or those representing them, for the sums therein specified as being “by bequest,” having been given after the date of the will, and for the same amounts mentioned in it, operated as ademptions of the legacies. 2 Story’s Eq., § 1111, and note 2 to p. 508, 4th ed. "Ward on Legacies, 16 Law Lib., 134-135. 2 Spence’s Eq., J., 427-8-9.
    2. If the principle — stated in 2 Story, § 1115, and Ward on Legacies, 136 — 4s correct that the doctrine of constructive satisfaction, or ademption of legacies, does not apply to the devise of a mere residue, then the sums receipted for as “donations” should not be accounted for by those who thus receipted, and are entitled by the will to the residuum. But if this rule has been modified — or, if its true meaning is, that the devise of a residue is not a satisfaction of a previous legacy or a previous debt, (as may fairly be inferred from the cases cited in 2 Spence’s Eq. J., 434, 455,) then the donees, being also residuary legatees, should account for the “ donations ” out of their shares of the residuum, so as to produce that perfect equality in the distribution of his estate, which, both by the eighth and residuary clauses in his will, and all his acts subsequent to its date, seems- to have been the cardinal object of the testator.
    3. The legacy to Nancy Meek, did not lapse by her death in the lifetime of the testator, because she died leaving issue, which issue was living at the death of the testator. The will is dated 11th May, 1842, and the case is within the 3d and 5th sections of the Act passed 5th Feb. 1842, Nic. Sup., 147.
    4. The agreements, made by the testator after the date of his will to convey to Jacob Lyon the two plantations devised to the heirs of James Snodgrass, operated as a revocation of the devise, and they are not entitled to any part of the purchase money. 4 Kent, 6th ed., 528 to 530. Walton vs. Walton, 7 J. C. K., 267 to 274. 1 Jarman on Wills, 130 m., 145 m. Powell on Devises, 19 Law Lib., 321, and 331 note. Brydges vs. Ohandos, 2 Sumner’s Yesey, 417-18 notes, 435 text, 437 note i. JBennet vs. Tmhemlle, 19 Yesey, 178, and note 2, p. 179. Adams vs. Winne, 7 Paige, 97. Plowden vs. Hyde, 9 Eng. Law and Eq. R., 243. 3 Greenl. Cruise, 106, § 58, 107, § 62, and note to p. 109, § 69. See 1 Swan’s Reports, 119.
    These agreements are not void for uncertainty. Pa-rol evidence is admissible to explain them. 1 Greenl. Ev., 404, § 282, p. 409; § 286; § 287; § 288; p. 339," prop, v.; p. 340, § 287.
    The lands intended to be sold were shown to the vendee, together with the deeds describing them on the day of sale; and as upon one construction the description of one of the tracts was omitted by mistake, it is not contrary to the statute of frauds or the course of a Court of Equity to let in parol proof to show which lands were intended. 2 Story’s Eq., 4th ed., 94, § 770 a. Meigs’ Dig., 203-4, 28To. 3, 544, No. 1003.
    But giving the instrument the proper punctuation, and the five tracts are made which D. Snodgrass says the testator showed Lyon.
    The two instruments were executed on the same day and should be construed together, and when thus construed, they show clearly enough that the intention was to sell the tract on which the old residence stood, the mill tract, the Jones tract and one half the Ganóle, and J. Snodgrass tract.
    Under all the circumstances, the administrators with the will annexed, had the power to enter into the agreement with Lyon to convey the lands intended to be sold, and to pay compensation for the two small tracts which he had agreed to convey, and to which he had no title, and, having done so, the case stands upon the same footing- as if a bill for specific performance had been filed by Lyon, and the contract had been admitted in the answer. No cross bill necessary, because two of the heirs are complainants and none of the heirs of testator, object.
    5. The declarations of the testator, as to his intention to sell the land, and to give part of the proceeds to the heirs of James Snodgrass, were not admissible in evidence, and cannot have the effect to entitle them to the proceeds of sale. 1 Jarman on Wills 349 note, 350 m., 351 note 1., 370 note 1. Lovelass on Wills, 23 Law Lib., 189. 3 Greenl. Cruise p. 122, No. 89.
    Such deliberations, if admitted, would, in effect, mate a new will for the testator, contrary to the statute of frauds. .Ward on Leg. 16 Law. Lib. 7. Watkins vs. Flora, 8 Iredell’s Law, 374. Btowe vs. JDamis, 10 Ire-dell’s Law K. 431.
    Treated as promises, the will, being revocable and ineffectual until the death of the testator, was no consid-. eration. And the fact that the heirs had, of their own accord, determined to remove to Missouri, and that the testator, at their request, sold the land and declared his intention', out of the proceeds to give them an outfit, but was prevented from doing so by his death, does not bring the case within the operation of any known rule of law, because the promise was verbal — made at the solicitation and risk of the heirs — without any consideration whatever on their part, either of detriment to themselves or benefit to the party promising — without oven a removal to Missouri in the testator’s lifetime — and was, in every sense, nudum pactum. 1 IT. S. Eq. Dig., 24, No. 114. 3 Greenl. Cruise, 113, Ho. 75.
    The cases in which promises were made by devisees and executors taking a beneficial interest under a will, in consequence of which 'the testator failed to insert a provision in, or make an alteration of his will, are cases of fraud, wholly inapplicable to a mere promise to make a will, or to do some other act in lieu of the provision contemplated by a will. If the will was revocable, the testator’s vei’bal agreement, without consideration to make an advancement, ,was equally so.
    6. The testator, on a division' of his own money among his children, caused - six hundred dollars of his own money to be loaned • to Jesse J. Jones, and took Jones’ note payable to the heirs of James Snodgrass. He retained the note in his own hands, never delivered it to the heirs, and collected three hundred and eighty dollars of the amount. This was not a valid gift to the heirs. It was void for the'want of consideration, and because of the non-delivery of the note. See 2 Kent’s Com., 6th ed., 438 to 440. In the case of Brv/nson vs. Brunson, Meigs 630, the facts on which the opinion of the'court was predicated were, (See opinion p. p. 641-2) that the notes were actually delivered to the donee and suit brought upon one of them for his use in the lifetime of the donor, and that case substantially recognizes the principle that delivery is absolutely essential- to the validity of a gift.
    But if this proposition is erroneous, there can be no question, that as the gift was made subsequent to the date of the will, it operated as an ademption of the pecuniary legacy of five hundred dollars to the heirs of James Snodgrass. See authorities cited in support of proposition 1.
    7. The heirs of James Snodgrass are not included in the residuary clause, and are not entitled to any part of the residue. Although the words “ other heirs ” in the sixth clause are used in such a manner as to show, hy implication, that the testator regarded James Snod-grass’ heirs as part of his heirs, yet it is manifest that this is not the sense in which the words — to he equally divided amongst all my hews •— are used in the residuary clause; for, the words which- immediately follow — “giving to Joel G-illenwater’s child/ren and John Fleming’s children an equal part, or one share with my other heirs — show, conclusively, that the testator knew the dif ■ ference between his own heirs and his son’s heirs, and between children and grand-children. See Kay vs. Conner, 8 Hum., 633, 634. T&nberlaJce vs. jETa/rris, 7 Ifed. Eq., 189, and 1 IT. S. Eq. Dig., 357^ No. 335.
    When providing for the division of his property, the testator uses the word “heirs” to signify his own children, and his intention in the residuary clause was to give what he styles “the overplush” to his own children (except Jane Fleming,) and to exclude Jane Fleming by the substitution of her children. Ward on Legacies, 16 Law Lib., 55-6. 1 U. S. Eq. Dig., 360, No. 407.
    8. The words in the seventh clause — “ as they have got their proportionable part of my estate already” — when taken in connection with the special provision in the last clause in favor of Joel Grillenwater’s children and John Fleming’s children, (i. e. the children of Jane Fleming,) show that it was the intention of the testator to exclude Jane Fleming from any share of the residue. See cases cited in 2 IX S. Eq. Dig., 294, No. 88; 215, No. 297. 1 U. S. Eq. Dig., 358, No. 74.
    The word “overplush” is sufficient to pass the residue of the testator’s estate. The case cited in behalf of defendants, from 1 Swan, 431, does not sustain the proposition assumed, because in that case. the codicil revoked the gift of the residue to Harriet, and her share was undisposed of by the will — that share being a residuary interest. But the devise to James Snodgrass’ heirs is specific, and whenever it was revoked by the sale of the land, the proceeds of that sale fall into the residuum according to Donohoo vs. Lea, Swan’s Reports, 122, and Walton vs. Walton, 7 J. C. R., and numerous other authorities before cited.
    "We omitted to answer the statement that James Snodgrass’ heirs will be deprived of the greater part of their interest in the estate. They get nearly as much now as the others, and if the contract for the sale of the land is annulled, they will get greatly more. See Will and Master’s Reports.
    10. The two instruments can be connected without violation of the statute of frauds.— because they bear date on the same day — relate to the same transaction — are proved by D. Snodgrass to have been executed for the same purpose, and are so treated in all the plead- . ings.
    In 1 Greenleaf § 268, it is said — “It is not necessary that the written evidence required by the statute of frauds, should he comprised in a single document,” &c. “It is sufficient if the contract can he plainly made out in its terms from any writings of the jpmiyf &c.
    
      In the note to 2 Greenleaf’s Cruise, p. 50, top, (being vol. iv.) it is said, among other things, “All contemporaneous writings relating to the same subject matter, are admissible in evidence.” 4 Greenleaf’s Cruise, Title 32, ch. 3, § 3, and note.
    See also Coles vs. Trecothich, 9 Vesey, 250, and note 9 to p. 253 a. Allen vs. Bonnet, 3 Taunt., 375.
    Deadeick, for Complainants.
    After the execution of his will, the testator sold his lands to Jacob Lyon. These lands, by the terms of the will, were devised to the heirs of James Snodgrass.
    On the sale of the lands, the testator executed the two papers found in the Record at p. 84 and 85.
    The first is an article of agreement signed by William Snodgrass and Jacob Lyon. The operative language is, “That said William Snodgrass has this day bargained and sold said Jacob, several tracts or parcels of land, all joining my old residence; also two tracts called the mill tracts, also the Jones’ tract, and one half the Ganóle, and J. Snodgrass’ tract,” &c., dated, May 22, 1849.
    The second — a paper not under seal, signed by Wm. Snodgrass, binding himself to make a title to Jacob Lyon. The operative words of which are, “Have this day bargained and sold to Jacob Lyon, a certain parcel of land, which said Wm. Snodgrass binds myself to have said land surveyed and run out, and make said Jacob Lyon a good warrantee deed,” &c., dated, May 22, 1849.
    By David Snodgrass it is proved, that he went with his father and Jacob Lyon to look at the lands, and the boundaries of tlie lands were shown. That witness drew tlie papers, and that the want of sufficient accuracy in the description, was on account, of his want of shill.
    The question presented upon these facts is, whether they operate as a revocation of the will as to the lands devised to the heirs of James Snodgrass.
    On behalf of the complainants,.we insist that they do.
    , 1. If after the date of a will', the testator contracts for the sale of land devised, if that contract is obligatory on- the testator, it operates a revocation of the will. 1 Jarman, 145, margin. 2 Am. L. Cases, 673, citing 5 J. O. R., 441. 7 J. C. R., 258. 7 Paige’s R., 97. (See page four of this brief.)
    2. But it is insisted that the instruments executed by Vm. Snodgrass, on the 22d of. May, 1849, do not operate a revocation, because as alledged, they are void for Uncertainty.
    To this we answer—
    1. The paper signed by Snodgrass alone, does not on its face refer to the other agreement. It is therefore not limited to any particular tract of land. Yet it is a sufficient compliance with the statute of frauds, and taken in connection with the proof of David Snodgrass sufficiently indicates the lands intended to be conveyed.
    2. Construing both papers as one and the same transaction, as they really were, there is no patent ambiguity.
    The difficulty is presented upon the phraseology of the agreement; “all adjoining my old residence, also two tracts called the mill tracts,” &c. This language, it is insisted, upon its face excludes the farm on which the testator resided — and that parol'evidence cannot be heard to show that it waé in point of fact intended to he included.
    
      We understand the rule to he, that if the intention of the party is sufficiently ascertained in the instrument, hut the persons or things to which that intention applies are inaccurately described, that parol evidence is admissible to show to whom and to what such intention really applied. 1 Greenl., § 290, 299, 300, 285, 297. 3 Hump., 267, 272. IT. S. Ecp Dig., 322, No. 367, 369. 3 Hay., 40. 2 Tenn., 49. 6 Hump., 447. See 1 Meigs’ Dig., 487, citing most of the above authorities.
    Thus in illustration of the rule, “certain premises were leased, including a yard, described by metes and bounds, and the question was whether a cellar under the yard was or was not included in the lease; verbal evidence was held admissible to show, that at the time of the lease, the cellar was in the occupation of another tenant, and therefore, that it could not have been intended by the parties, that it should pass by the lease.” 1 Greenleaf, § 286.
    . If then a fact inconsistent with an intention to pass the cellar in the case put, is admissible to show, that although the language might import such an intention, yet no such intention existed, we submit that it is admissible in this case, to show by parol a fact, that shows the intention of the testator to pass or convey the farm on which he resided.
    This view, it is submitted, is much strengthened by the provision in the agreement that Snodgrass will surrender by the first of September, all the premises, except buildings' enough to save the crop on hand.
    These buildings were on the home place, and the reservation of the oiit-buildings to save the crop, shows an intention to pass the whole.
    Again, the word residence, means a house of abode, and lands adjoining my residence, may, or may not include the dwelling; and so the force of the expression does not exclude the idea of a sale of the home place; therefore, it is competent to prove the circumstances that surrounded the testator at the time, and in reference to which he used the words.
    Purchase money due on land will not pass by a devise of the land. 2 Am. L. Oases, citing 7 Paige’s R., 97.
    The devise of the proceeds of land is removed by the sale of the land. 1 Eq. Dig., 389, No. 872.
    M. T. Haynes, for John and Jane Eleming.
    What part of the testator’s estate, does Jane Fleming take, under the sixth, seventh, and residuary clauses in his will ?
    1. In the latter part of the sixth clause, the testator directs, that six negroes be given - to the heirs of James Snodgrass, out of them now on the plantation; cmd the others to be equally divided among his “ other heirs?
    
    By this clause in the will, the testator evidently meant, that after the specific legacy of six negroes to the heirs of James Snodgrass, deceased, all the balance of the negroes, remaining on the plantation, should be equally divided among his children; or as he calls them, “hews? Jane Fleming, is a child and heir, and therefore, is entitled under this clause, to an equal share with the other children, in the negroes remaining on the plantation, after the specific legacy to the heirs of James Snodgrass.
    2. The seventh clause gives to Jane Fleming a pecuniary legacy of $550, and these words are added, “as they have got their proportionable part of my estate already.”
    And the residuary clause directs that the “overplush” of the testator’s estate, be equally divided among “all” his “heirs,” giving Joel Gillen water’s children and John Fleming’s children, an equal part or one share with his “ other heirs.”
    Is Jane Fleming excluded from any share in the residuary clause? The intention of the testator is the great end to be aimed at in the construction of the will; but this intention is to be collected from the words used by the testator. Vide New Law Lib., vol, 1, No. 3, p. 243, and note 5.
    Extrinsic evidence is not admissible to alter, detract .■from, or add to the terms of a will. Vide 1 Jarman on Wills, marg. p. 358, note 1.
    All the parts of a will are to be construed together, in relation to each other, and so as if possible, to form a consistent whole; but if several parts are absolutely irreconcilable, the latter must prevail. Vide 1 Jarman on Wills, p. 411, 412.
    The court is bound to give effect to eve'ry word of a will, without change or rejection, provided an effect can be given to it, not inconsistent with the general intent of the whole will taken together. Vide 1 Jar-man on Wills, p. 411, note 1.
    An heir is not to be excluded by implication, unless that implication imparts such a strong probability, that a contrary intention ccmnot he swpjposect. Vide 1 Jarman ■on Wills, p. 465.
    Negative words, merely, without words of exclusion, are not sufficient to exclude the title of the heir or next of kin. Vide 2 Jarmon on Wills, p. 741.
    Where the testator has 'used teehnioal words, he is presumed to employ them in their legal sense, unless the context clearly indicates to the contrary. Vide 2 Williams’ on Executors, p. 788, 789. Also 2 Jarman on Wills, p. 744. Also Kay vs. Cornier, 8 Hump., p. 624.
    With these principles, applied to the will of the testator in this case, we must conclude that it could not have been the intention of the testator to negative the title of the defendant, Jane Fleming, by using the words, “ as they have got their proportionable part of my estate already,” to a share in the residuum of his estate.
    The first thing to be noticed, in interpreting the meaning of these words is the fact, that the pecuniary legacy of $550, is the smallest of all the pecuniary legacies ; and the words, “ as they have got their propor-tionable part of my estate already,” are used in immediate connection, with this small legacy to Jenny Fleming; and only show the reason why the testator gave his daughter Jane Fleming a smaller pecuniaiy legacy, than he had given any one of his “ heirs.” These words have no reference to the residuary clause; they are used in reference to the pecuniary legacies, and are employed to show Jane Fleming and the other heirs, why it was that this legacy was so much smaller than the others.
    If they had got their proportionable part of the testator’s estate already, it would have been inconsistent for him to have given them even the $550 legacy.
    
      It was not meant that Jenny Fleming had got her proportionable part of the testator’s whole estate, because that was not true; but it was true that the testator had made unequal advancements to his children, which were finally equalized by the unequal legacies in the will; and it was true that Jane Fleming had gotten that proportion of the testator’s estate, which, in addition to $550 bequeathed to her, would mate her equal to the other heirs in that part of his estate, which he had adnxmced to his children. And this being true, we must conclude, that when the testator said “they have got their proportionable part of my estate already,” he did not mean the whole of his estate, but all except the “ overplush.”
    This construction will make the will consistent with itself.
    If it had been the intention of the testator to exclude Jane Fleming from a share in the residuum, and to substitute her children in her stead, he would have used words of exclusion, to except her out of the general technical description of “heirs,” in the residuary clause. He has used no words of exclusion; but so far from that he has used the very words to vncl/ude her; for “ all his heirs ” as certainly include Jenny Fleming, as if she had been particularly named. She is not only included in the word all, but also in the word hews.
    
    But even if the words in the seventh clause are words of exclusion■, then the words in the last clause are words of mclusion, and the clauses are therefore contradictory ; and if they are contradictory, the latter must prevail, and Jane Fleming takes a share in the resí-
      
      dmtm, It could not have been the intention of the testator to substitute the children of Jane Fleming in her stead; because he has employed no words to exclude Jane Fleming from a share in the residwum. And the principle is clearly settled, that before one person can be substituted for another, the testator must not only designate the object of his gift, but he must use words of a negative and exclusive character, as words which raise so strong a probability, that an intention to the contrary cannot be supposed.
    The doctrine of “ Double portions ” cannot apply to Jane Fleming, because, if she gets all we ask for her, she only gets a single portion. A double portion is a double gift to the same person. Tide Story’s Eq. Jr. § 1100.
    D. T. Patteesoh, for the heirs of James Snodgrass.
    1. It is conceded that an agreement to convey land, entered into after the date of the will, if it is a valid agreement, certain in all- its parts, such as a court of equity would specifically execute, will operate in equity as a revocation of the will.y?n> tambo.
    
    A court of equity will not enforce the specific execution of a contract to convey lands, when the contract to convey, rests partly in writing and partly in parol- — and parol evidence cannot be resorted to in order to aid or explain the written contract. 3 Johnson’s Rep., 418, 419 PwrWmrsb vs. Yam Oourtlandt, 1 J. O. R., 274. Olinam, vs. Ooolc, 1 Sch. and Lef. R., 22. 2 Story’s E. Jr., 767. 1 Hump. R., 826.
    2. A court of equity will not- enforce the specific execution of a contract to convey land, when it would be inequitable to do so, or when it would result in injustice. It is a matter of sound discretion in the court to interfere or to leave the party to his remedy at law. 2 Story’s E. Jur., see 742, 750, 767, 769, and authorities cited in note.
    3. The Chancellor erred in decreeing the specific execution of- the contract mentioned in the instruments of writing signed by William Snodgrass, and set out at p. 84, 85, and 86, of the manuscript, on the prayer of the defendant Jacob Lyon. The purchaser should have filed a cross bill praying for that specific relief, against the heirs of James Snodgrass. 3 Daniell’s Chancery Practice, 1742, 1743-4. 10 Hump. K., 238.
    4. It is insisted that under the residuary clause of the last will and testament of William Snodgrass, the heirs of James Snodgrass are entitled to one distributive share of the “ overplus.”
    It is manifest from the language of the sixth clause of said last will and testament, that the testator did not' intend to discriminate between his children and his grand children.
    It is true he speaks of the defendants in said sixth clause, as the heirs of James Snodgrass. But in the same clause and in regard to the same subject matter, the testator speaks of his own children as my “other heirs.” Thus clearly demonstrating that the testator did not intend to discriminate among his heirs. In the 7th and last clause of said will, the testator directs the over-plus of his estate after the “bequeaths,” to be equally divided amongst “all of his heirs.” This language is broad — and sufficiently comprehensive of itself to embrace the heirs of James Snodgrass — unless it clearly appears from the mil, that the testator intended to exclude them from taking any share of the overplus mentioned in said residuary clause. This has not been done by the language in the sixth clause, nor indeed in any part or clause of said will. The intention to exclude must be clear and undoubted; the language of the testator must be explicit and not ambiguous.
    It is a settled rule in the construction of wills, that the intention of the testator must prevail, and that intention is to be collected from the language of the will. 4 Kent’s Com., 534-5, and notes. 2 Williams on Ex., 707, 709, 711, top.
    W. H. Sneed, for the heirs of James Snodgrass.
    1. Specific execution will not be decreed at the instance of defendant in his answer without cross bill. 3 Dan. Ch. P., 1742, et. seq. Title Cross Bill. 10 Hump. Rep., 238, and most especially in this case will specific execution be refused. The agreement with administrators was for thew own benefit, and specific execution only of pant under the agreement. No purchase money was paid by defendcmt, therefore no im/jv/ry to him. Testator had special rega/rd for devisees, and intended proceeds of devise for them, and specifically executing, would defeat all these considerations.
    2. It is submitted that revocation of devise by sale, will not pass proceeds into residuum. Revocation of devise or lapse or ademption does not, but the land will go to heir. This 'is the universal rule, and is recognized in the case of Donohoo, Swan’s Rep., 119, and it is submitted that there is no reason why the proceeds should take different courses, and that case is the only authority that such proceeds will go into residuum.
    3. Devise of lands can only be revoked by other writ/mg of equal dignity. This is the universal rule, and the case of Donohoo is not in conflict with it. The instruments here relied upon, are simple conti'acts — and further reviewed still, before they can be effective, mere verbal proof must aid the simple conti'aet writing, and thus aided be specifically executed pro tanto, an agreement made for their own benefit by the administrators with vendee for pa/rt only of the property, and to the prejudice of devisees without benefit to vendee. It is confidently urged this cannot be done.
    4. The uncertainty of the agreement cannot be supplied, and thus by ven'bal proof constituted definite as to terms or subject matter, and then specifically set up and executed; and to be aided in these particulars by other writing, such other writing must be referred to in the one to be executed. 7 Vesey’s Kep., 221. 2 Sch. and Lef., 7-8. 1 Sch. and Lef. Kep., 22, 39. 3 Johnson’s Rep., 418, 419. 420. 1 Hump. Kep., 325. 1 John. Oh., 273. Gresly’s Eq. Ev., 276, and seq. and notes, and authorities there cited.
    5. But whenever verbal proof has been admitted it has been on bill filed to reform the writing because of fra/ud, accident, or mistake, and to make the instrument speak the contract, which for one of these causes it did not do. There are no such cha/rges or proof in this case.
    6. In any event, it is urged that the clause insisted upon here as residuary, will not embrace former devises or bequests which for any reason do not pass by tbe will — but is only operative on tbe “overplush after tbe bequests,” and sucb was tbe intent of testator as manifested in tbis clause. 2 Will, on Ex., 896. 3 P. Williams Rep., 40. 12 Yesey, 497. Ambler’s Rep., 577. Swan’s Rep., 431, and as to sucb former devises or bequests testator died intestate.
    .7. Tbe children of James Snodgrass are beirs of testator and embraced in last clause of will. See tbe schedule to will — sixth clause of will. Tbe including Joel Gillenwater’s children and John Fleming’s children as beirs in tbis clause, is'conclusive that he imtmded to embrace all his grand ohild/ren.
    
   Totten, Judge,

delivered tbe opinion of tbe court.

The plaintiffs bring their bill as administrators, “with tbe will annexed,” of William Snodgrass, deceased, to have tbe will construed, and the. rights of the devisees and legatees under tbe same, stated and declared. All persons having an interest in the subject, are made parties to tbe suit, and tbe chancellor has proceeded to .mate bis decree therein, from which decree, tbe “beirs of James Snodgrass ” have appealed to tbis court.

On tbe 11th May, 1842,.William Snodgrass made bis will: be died in September, 1849, and at tbe October term, 1849, of tbe county court of Sullivan, tbe will was duly proved, and tbe plaintiffs were appointed administrators, with tbe will annexed. In said will are the following clauses.

Sixth. “I give and bequeath in like manner, unto tbe beirs of my son, James Snodgrass, deceased, tbe two plantations whereon they now reside, with all tbe appurtenances thereunto belonging, consisting of stock and farming utensils of every kind, and two wagons and five hundred dollars in cash, and six negroes out of them now on the plantation, to be left to a majority of my heirs, to select them out of the family now on the plantation, and the others to go to my other heirs equally divided.”

After other bequests, comes the clause as to the residue, to-wit:

“As the balance of my estate, if no failures in collection, will be a tolerable sum, it is my wish and desire that the overplush, after the bequests, be equally divided amongst all of my hews; giving Joel'Gillenwater’s children and John Fleming’s children, an equal part, or one share with my other heirs.” It is to be remembered that these are children of the testator’s daughter who was twice married. James Snodgrass, a son of the testator, died before the date of the will, and his children are William Snodgrass, Ellen, who married Geo. Hardin, and David, Mary, and Catharine Snodgrass, the three last being minors who defend by their guardian.

The bill charges that on the 22d May, 1849, the testator made sale of his lands in Sullivan county to Jacob Lyon, at the price of $4500, that the sale includes the lands devised to the “heirs of James Snodgrass, deceased, and is to that extent, a revocation of said will, and it insists upon a specific execution of the contract against Jacob Lyon.

Two papers containing said contract of sale are produced, and are as follows:

First. “Sullivan county, State of Tennessee, May 22d, 1849. Article of agreement made and entered into between William Snodgrass, Sr., of Sullivan county, and State of Tennessee, of tbe one part, and Jacob Lyon, of Smith county, and State of Yirginia, of tbe other part, witnesseth: that said William has this day bargained and sold said Jacob, several tracts or parcels of land, all joining my old residence, also two tracts called tbe mill tracts, also the Jones’ tract, and one half the Cañóle and J. Snodgrass tract, which said William agrees to give possession against the first day of September, of the whole premises, except so much of the buildings as will suffice to save the present crop now on the land.”
" Teste: David Snodgrass, William Snodgrass,
Mary A. Lyon, Jacob Lyon.”
Second. “Title bond for several tracts or parcels of land given 22d May, 1849.
“ Sullimcm county, State of Tennessee — Know all men by these presents: That I, William Snodgrass, of Sullivan county, State of Tennessee, have this day bargained and sold to Jacob Lyon, of Smith county, Virginia, a certain parcel or tract of land, which I said William Snodgrass, bind myself to have said land surveyed and run out, and mate said Jacob Lyon a good warrantee deed, in consideration for which said Jacob Lyon, is to pay said William Snodgrass, four thousand five hundred dollars.”
Teste: David Snodgeass, William Snodgeass.”
Maey A. Lyon.

At the same date, Jacob Lyon executed his notes to William Snodgrass, for the purchase money, that is, one note for $3,000, and another for $1,500. In his answer, Jacob Lyon says, the lands and the title papers therefor, were shown to Mm at the time of the contract. That the home plaee, called the “ old residence,” and the other tracts designated, were intended to be sold: offers to pay the purchase money, and insists upon a specific performance of the contract.

The plaintiff’s say they have reason to believe and so charge, that the land intended in one of said instruments, was the “home place of the testator, and that intended in the other, was the tract adjoining or contiguous thereto. The pa/rol proof makes it clear, that the home place was intended to be sold with the other tracts. The answer of the “heirs of James Snodgrass,” concurs in the belief that the “ home plaee ” was intended to be sold, with the other lands, that the lands devised to them, was the land intended to be sold.- That the object of the testator was to convert said lands into money for the use and benefit of said devisees, and to give the money to them, as they had concluded to remove from this State to Missouri; but the testator died before the fund was collected or delivered to them. They insist that said contract is void for vagueness and uncertainty, and resist its execution.

This case may be regarded in several points of view.

First: As to the effect of a sale of land by execu-tory contract, where the vendor by his will had previously devised the same. This was the case of Donohoo vs. Lea, 1 Swan’s R., 119, where the siibject is fully considered, and it is held, that such sale will operate as a revocation of the will pro tamdo. In the view of a court of equity, the nature of the estate is changed, the realty is converted into personalty — -the vendee is entitled to the land, and the vendor to the purchase money, which has become a part of his personal estate. Walton vs. Walton, 7 J. C. R., 268.

Second. But to have this effect, the contract of sale must he such as a court of equity may, in view of well settled principles, specifically execute. It is true, that in the absence of any valid objection, it is a matter of course to decree the specific performance of a contract for the sale of real property. It is a higher and more perfect remedy than the damages, which a court of law can give for a breach of the contract. 9 Ves., 608. 12 Ves., 395. 4 Peter’s R., 311, 328.

As a general rule, “courts of equity will decree a specific performance, where the contract is in writdmg, cmd is certain, and is fair in all its parts, and is for an adequate consideration, and is capable of being performed; but not otherwise.” 2 Story’s Eq. Jur., 751. Denton vs. Stewart, 1 Cox Cathcart vs. Robeson, 5 Peter’s R., 264.

The contract must be in writing — be certain in its terms, and be signed by the party to be charged with its performance. The form of the instrument is perfectly immaterial, as the statute of frauds merely requires that the contract “ or some memorandum or note thereof shall be in writing.” But the written evidence of the con-; tract must be reasonably certain in itself, as to the es-' tate intended to be sold, and the terms of sale; as parol evidence to supply a writing defective in this respect is inadmissible. Patton vs. McClure, M. & Y. R., 333. Baily vs. Ogdens, 3 J. R., 419. 2 Greenleaf’s Cruise, title deed C. 3, and note. 1 Greenleaf’s Ev. S., 268. Parkhurst vs. Van Courtlandt, 1 J. C. R., 281.

RTor is it necessary that the contract should be contained in a single document. “It will be sufficient if it can be plainly made out, in all its terms from any writings of tire party, or even from his correspondence.”

Tlwrd. But when several papers are relied upon for written evidence of a sale of land — these papers must afford mtrmdo proof, that they relate to the same contract of sale. Parol evidence is inadmissible to connect them, or to show that they relate to the same transaction. This is a well settled rule under the statute of frauds.

Thus, says Chancellor Kent, (in Parkhurst vs. Van, Courtlandt, 1 J. C. R., 281,) “I am warranted in considering it a settled principle, that if the court cannot ascertain, with reasonable certainty, the terms of the agreement from the writing, or from some other paper to which it refers, the writing does not take the case out of the statute.” “ It appears to be equally well settled,” says the chancellor, in the same case, “that when the agreement is thus defective, it cannot be supplied by parol proof, for that would be at once to open the door to perjury, and to introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent.” The cases to this point are numerous and decisive. Brodie vs. St. Paul, 1 Ves., 331. Clinan vs. Cook, 1 Scho. & Lef., 32. Boydell vs. Drummond, xi East, 156. Abeel vs. Radcliff, 13 J. R., 298.

Row to apply these principles to the present case; it is clear that we can only 'look to the written papers before referred to, for the nature and terms of the agreement between the parties; the parol evidence relied upon to supply these defects, must be kept entirely out of view.

The first paper after stating a sale of land imperfectly-described, is wholly silent as to the price and terms of sale. The second paper mentions a “parcel of land,” to be surveyed and conveyed to the vendee for the price of four thousand five hundred dollars. No description whatever is given of the land intended to be sold.

-If these papers be taken separately, it is perfectly cleai-, that as contracts, they are void for vagueness and uncertainty.

Nor can they be taken and construed together as evidence of the same contract for the sale of land. Eor neither paper makes any reference to the other, nor contains other intrinsic evidence that it refers to the same subject matter or sale. So far as anything appears in the papers themselves, they relate to separate and distinct sales, and so indeed, the bill construes them, as we have seen.

From this view of the case it results, that the supposed sale of the land was merely void, and had no effect to revoke the previous devise, to the “heirs of James Snodgrass,” — that the devise remained in force and took effect at the testator’s death.

Fov/rth. As to the residuary clause of the will now before us. The testator gives the fund equally to all his hews; except, that Gillenwater’s children, and Fleming’s children, were to have an equal part or one share with his other hews. ¥e can have no doubt from the context, and other portions of the will, but that by the word heirs, the testator meant his children. He therefore specially provides that the children of his daughter shall be interested in this fund. He does not provide that the children of James Snodgrass shall take under this clause, as in tlie other two cases, and therefore, we consider that they are excluded. They are not named, nor are they included in the general words of this clause.

Let the decree of the chancellor be modified.  