
    Miars and Others v. Bedgood Ex’or of Fulgham.
    April, 1838,
    Richmond.
    Wills — Construction — What Passes by Residuary Clause — Case at Bar. — A testatrix, by the first clause in her will, desires that her negro man Kit shall have his freedom, and receive from her estate $50. By the second, she gives to D. A. her negro Harry, and directs that D. A. receive from her estate $100 for the purpose of supporting Harry during his life. By the third, she gives to S. G. $20. By the fourth, she gives to D. A. A. one buffet and one large trunk; and to K. D. one trunk and one patched hed cover. The fifth and last clause Is as follows: “I give to my negro Kit above named a blue cotton hed cover, and to the above named negro Harry one yarn hed cover. I do hereby appoint James Bedgood my executor to this my last will and testament, and that he shall receive the balance of my estate, if any.” The testatrix, besides some furniture worth about $200, dies possessed of $2978 in money. — Heed, that Bedgood is entitled to the money, as well as to any other balance of the estate.
    Same — Same—Same—Parol Evidence. — Whether parol evidence is admissible in such a case, to show that the testatrix did not intend that money should pass by the residuary clause.
    The will of Elizabeth Eulgham contained the following clauses :
    “1. After my funeral expenses and just debts are paid, my desire is that my negro man Kit have his freedom, and that he receive from my estate the sum of 50 dollars, to defray his expenses to any free state or country that he may prefer. 2. I give to Daniel Aswell my negro *Harry, and that the said Daniel Aswell receive from my estate 100 dollars, for the purpose of supporting the above named Harry during his life. 3. I give to Sarah Cathen twenty dollars. 4. I give to Diza Ann Arthur one buffet and one large trunk: to Keziah Deans, one trunk and one patched bed cover. 5. I give to my negro Kit above named a blue cotton bed cover, and to the above named negro Harry one yarn bed cover. I do hereby appoint James Bedgood my executor to this my last will and testament, and that he shall receive the balance of my estate, if any.”
    The will bore date the 11th of September 1833, and was offered for probat to the court of Nansemond county the 14rh of September 1835. The record of tjie court of probat states, that it “was opposed by Nancy Miars ; and upon the examination on oath of James S. Arthur and John Benston, the witnesses to said paper writing, and the arguments of counsel, it was the unanimous opinion of the court that the said paper writing, purporting to be the last will and testament of Elizabeth Eulgham, be received as her said last will and testament, and ordered to be recorded as such.” Bedgood thereupon qualified as executor.
    The bill in this case was filed in the circuit court of Nansemond by Nancy Miars (who opposed the probat of the will) and other plaintiffs, claiming to be the next of kin; and set forth that the decedent had no children or descendants, and left no father, mother, brother, sister, or descendant of any, and no grandfather or grandmother. In such case, supposing the decedent to have died intestate, the estate would be divided into two moieties, one of which would go on the paternal and the other on the maternal side, to uncles, aunts, and their descendants. The bill stated that the plaintiff Nancy Miars was a cousin of the decedent, and that the other plaintiffs were children of cousins. It farther stated that the decedent died possessed of a large sum of *money, which was never intended to pass by the residuary clause ; and in support of this construction, alleged declarations of the decedent at the time her will was drawn, and of the executor since her death. It called for a discovery from the executor, of the circumstances attending the execution, and as to his belief in regard to the intention of the testatrix.
    The answer of Bedgood stated, that the decedent was possessed of a little furniture worth about 200 dollars, and had in money 2978 dollars. It stated his belief that the complainants would, in the legal course of distribution, be entitled to the decedent’s estate if it had not been differently disposed of by her will, but insisted that under the will the balance of the estate, by force of the residuary clause, passed to him. It stated also the circumstances under which the will was written, as follows — On the day the will bears date, the decedent came to defendant’s house, he being a near neighbour, and in the habit of attending to her business. She informed him that she had come to make her will, and requested him to write it for her ; which he did according to her directions, and, as near as he could, in her own language. Towards the conclusion of the will, as well as he recollected, he enquired of her if she had seen any one who would act as her executor? having been previously applied to by her to act as such, and having advised her to get some other person. Upon her replying that she had not, and being still solicited to act as such, he mentioned himself as executor, and by her directions he was named the residuary legatee. The will was read over and explained to her in the presence of the attesting witnesses, signed by her, and delivered as her will. She stated that her object in making a will was to exclude the Miarses from any portion of her estate ; and that such was her dislike for Nancy Miars, the female complainant, that if by any act of hers she could prevent it, she should not have so much as the *wrappings of her finger. — The defendant further stated, that he was sent for by the decedent and visited her in her last illness, and she expressed not the slightest dissatisfaction with the will she had made, and manifested not the least disposition to have it altered. He admitted that the decedent said her estate was not much, and that she might have said at the time of making her will, as charged in the bill, “that the balance of her estate would not exceed 30 or 40 dollars.” Such, he said, might have been her opinion, as she was then in good health, and the prospect was a fair one that she would live many years, and the little estate she had be entirely comsumed in her support. But, in his opinion, one great reason for such a remark was to conceal from the world the amount of money she had, she living alcme, and fearing the same might be a temptation to rob and despoil her of it. He said that he knew nothing as to her intention to give him her money, except what appeared on the face of the will. Taking that as the basis of his opinion, he claimed the money as his property, and could not suppose a different intention. • ■ :
    An amended bill was afterwards filed, making the specific legatees parties, and charging that the estate which came to the hands of the executor, apart from the money, was more than sufficient to pay the debts and legacies, and that after paying them there remain some estate, exclusive of the money, for the residuary clause to operate upon.
    The answer of the specific legatees and the executor admitted that there was estate enoug.h to pay the specific legacies, independently of the money, but the executor said that he did not believe the estate, exclusive of the money, would be more than sufficient to pay the debts and legacies.
    There was no replication to either of the answers.
    The only evidence in the cause was the deposition of James S. Arthur, one of the attesting witnesses, taken by agreement, without notice, to be read as evidence. * Arthur deposed that the will was written by Bedgood ; that after all the provisions of the will had been written except the last clause, the deponent asked the testatrix what she would do with the balance of her estate; that she replied, there would be none, but afterwards said, there might be 30 or 40 dollars, and that the man might have it who attended to her business ; which the deponent understood to mean mr. Bedgood her executor. The deponent stated, that Bed-good afterwards said, he hardly thought she intended him to have her money. But the deponent added, that he had no doubt she intended mr. Bedgood to have what should be found in her house at her death. 1 . ■ ; : : :
    Upon the hearing, the circuit court decreed that the bills be dismissed, and that the defendants recover aga inst the plaintiffs their costs. •
    Erom this decree an appeal was allowed.
    The cause was twice argued in this court. Upon the first argument, only four judges were present, and they were equally divided. The second argument was before a full court, by Carter M. Braxton for the appellants, and Robinson and Howard for the appellee Bed-good. ; , l ■
    I. Braxton contended, that the terms of the will directing that the executor ‘ ‘ shall receive the balance of the estate,” only repeated the injunction of the law, and the executor must be considered a trustee for the next of kin. : : : :
    The counsel for the appellee answered, that this ground was taken away by the previous : s clauses of the will, where the same language is used with a manifest intention that the legatee shall have the thing received. If, however, the word receive could be considered ambiguous, and it should be deemed necessary or proper to look dehors the will, to ascertain in what sense it was used, both the answer and the evidence established that it was used as meaning have, and that whatever might *be embraced by the words “■ the balance of my estate,” was the property of the executor absolutely, and not as trustee.
    II. Braxton said, that if the term receive should be construed have, still it remained to enquire what the testatrix intended to pass by the words “ the balance of my estate, if any.” The court should hold; that the residuary clause passed only what the testatrix intended to pass thereby. And it might go out of the will to ascertain the intention. It was evident from the answer of the executor and the evidence of the witness, that the testatrix did not contemplate any thing but her slaves and furniture. The legacy to the executor should be applied only to things ejusdem generis. She never designed to pass the money. He cited Cook v. Oakley, 1 P. Wms. 302 ; Trafford v. Berrige, 1 Eq. Cas. Abr. 201 ; Timewell v. Perkins, 2 Atk. 103 ; Ex parte Fearon, 5 Ves. 638; 2 Roper on Legacies 533 ; Philips v. Melson, 3 Munf. 76, and particularly relied on Minor v. Dabney, 3 Rand. 191.
    The counsel for the appellee replied that there was no ambiguity on the face of the will, and that no case could be found admitting parol evidence to prove that the testator declared his intention to be exactly the opposite of what he had said in his written will. They cited Chichester v. Oxenden, 3 Taunt. 147 ; 4 Dow’s Par. Cas. 65 ; Leighton v. Bailie, 9 Cond. Eng. Ch. Rep. 30; Mounsey v. Blamire, 4 Russ. 384 ; 3 Cond. Eng. Ch. Rep. 718 ; Reno’s ex’ors v. Davis, 4 Hen. & Munf. 291; Puller’s ex’ors v. Puller, 3 Rand. 90 ; Bowyer v. Martin, 6 Rand. 525. But if the court could look out of the will, neither the answers nor the evidence shewed, that when the testatrix said she wished Bedgood to have the balance of her estate, she did not mean that he should have it. They only shewed that for some reason, best known to herself, she did not wish it to be known in her lifetime how much she had. She could not foresee what *the balance of her estate would amount to at the time of her death ; but if there should be any, she wished him to have it, whatever the amount might be. The doctrine of ejusdem generis was examined, and the following cases cited in regard to it: Mayo v. Carrington, 4 Call 472 ; Crooke v. De Vandes, 9 Ves. 192 ; S. C. 13 Ves. 330 ; Bland v. Lamb, 2 Jac. & Walk. 398 ; Fleming v. Burrows, 1 Russ. 276 ; Arnold v. Arnold, 8 Cond. Eng. Ch. Rep. 40. It was denied that the doctrine had any application to this case. Where certain things are left to A. and in the same clause the residue is given to him, the doctrine, it was said, was applicable ; but it had no application where a testator gives specific legacies to other persons, and in a general clause (without any particular enumeration of things) gives the residue to A. Yet if it were conceded that the words “ if any ” imported any balance of such estate as is mentioned, still it would not help the plaintiffs ; for in the previous clauses of the will, there are bequests of money as well as of other things. Moreover, in this case, if the money be not held to pass by the residuary clause, there will be nothing at all for that clause to operate upon.
    
      
      Wills — What Passes by Residuary Clause. — On this subject, see Stephen v. Swann, 9 Leigh 404, 417; Gallagher v. Rowan, 86 Va. 823, 826, 11 S. E. Rep. 121; Irwin v. Zane, 15 W. Va. 646, 654, all citing and approving the principal case. See also, Smith v. Smith, 17 Gratt. 268, and foot-note.
      
      Same — Construction—Intention of Testator Governs. —As the law gives the power to dispose of property i by will at the discretion of the testator, his intention must always govern in the construction of his last will and testament; and, if that intention be consistent with tbe rules of law, it will be carried into effect whether the will be draughted with technical accuracy or not. The consequence of these principles seems to be, that, in the construction of wills which carry evidence upon their face that they have been the work of ignorant testators, and not of experienced and enlightened scriveners, adjudicated cases can afford little aid. This language Used by Ttjckeb, P., in the principal case was approved in Bartlett v. Patton, 33 W. Va. 76, 10 S. E. Rep. 22.
      In foot-note to Wootton v. Redd, 12 Gratt. 196, many cases are cited to support the proposition that, in the construction of wills, the true intention of the testator must govern with absolute sway, if it is clear, and no rule of law is thereby violated.
    
   PARKER, J.

The clause in the will of Elizabeth Fulgham under which James Bed-good her executor claims the whole residue of her estate is in the following words: “ I do hereby appoint James Bedgood my executor to this my last will and testament, and that he shall receive the balance of my estate, if any.”

There is no difficulty about the import of the word receive, whether we look to other clauses in the will, where that word is used as synonymous with give, or to the parol testimony in the cause, proving that no resulting trust was intended to the next of kin. Whatever Bedgood takes, he is to take as his own property. This is plain, and .has scarcely been contested.

*The only serious question that can be made in the case, is whether, taking the words of the will in connexion with the facts proved or admitted, the testatrix has made a valid bequest of the money left in the house (amounting to the sum of 2978 dollars) to the appellee.

On the words themselves, no doubt can arise. In relation to the balance of the estate, they are general. The testatrix could have employed no words more significant to give the whole residue of her property, than those she has used. The word estate (as lord Mansfield said in Urry v. Harvey, 5 Burr. 2638,) “ carries every thing, unless tied down by particular expressions and the balance if any, comprehends all. These words are not equivocal of themselves, nor doubtful and ambiguous, and therefore I think it is not proper to resort to parol averments or extrinsic circumstances, to control or to restrain them. The difficulty here is suggested by the fact appearing aliunde, that she had a considerable sum of money in the house ; and hence it is inferred that she could not intend to bequeath it by words implying, as it is said, a doubt whether she would leave any balance. The words, however, are plain and comprehensive ; and being so, they should not be limited by such considerations.

This would be putting something in the will that did not previously stand there, and drawing inferences of intention, not from the words of the will, but from extrinsic proof. The cases in which this may be done are accurately stated by judge Cabell in Puller’s ex’or v. Puller, 3 Rand. 90, and are referred to, more at large, by Powell in his treatise on devises, pp. 338 and 341, — but there is no case, not even that of Cole v. Rawlinson, 1 Salk. 234, or Fonnereau v. Poyntz, 1 Bro. C. C. 472, there mentioned, which would justify us in restraining the general, unequivocal, and clear words of this will, to a small part of the balance of the testatrix’s property, instead of the whole.

*If, however, we look to the circumstances of the testatrix, and to the facts stated in the deposition and the answers (which the complainants admit to be true; by not replying to them) there is nothing which ought to induce us to say that the testatrix died intestate as to the sum of money left in the house, or that she did not intend to give it to the executor to whom the law formerly gave the whole undisposed of residuum. She had no near relations. The complainants are distant connexions, towards whom she seems to have entertained some prejudice, for she has not once mentioned them in her will. The appellee was a near neighbour, and had been in the habit of attending to her business; and it is more likely that she would have, wished him to have the residue of her property, than distant relations, to one of whom, at least, she expressed the strongest aversion. The witness who was present when she made her will, has no doubt she intended the whole residue to go to Bedgood ; and certainly she could have used no word more effectually excluding her next of kin, than words giving all the balance of her estate, if any, to her executor.

It is said, however, that the testatrix could not have intended to pass this money, but something necessarily of small amount, of which there might probably be nothing left. This is mere matter of conjecture founded on the words “if any,” connected with the proof that she probably had, at the time of making her will, a larg-e sum of money by her. But those words might have been added, because she thought she might spend the greater part or the whole of her money before her death: or because she wished to conceal the fact of her having so large a sum in the house : or because, at the moment, she did not advert to it: or for some other reason, which was satisfactory to her bu't unknown to us. In this uncertainty, is it not better to abide by the plain ^Construction of the words, than to reply on circumstances in themselves equivocal and doubtful?

It is very evident that the testatrix did not mean to die intestate as to any portion of her property. No one does, who makes a residuary bequest. And if she did not mean to die intestate, all her residuary estate will pass by force of the words, although she might have had no reference to this money. There are many cases to shew that property not intended to pass under a residuary clause, as where it is given to charitable uses void by the statutes of mortmain (Durour v. Motteux, 1 Ves. sen. 320,) or where the legacy lapses, or where the specific legatee cannot claim in consequence of fraud practised on the testator (Kennell v. Abbott, 4 Ves. 803,) does yet go to the residuary legatee. The cases of Cambridge v. Rous, 8 Ves. 14; Bland v. Lamb, 5 Madd. 412, and several others cited in 2 Roper on Legacies, ch. 24, § 1, are of the same character. Sir John Leach, in the case of Bland v. Lamb, observed that “ the question is not what the testator had in his contemplation, but what the words he has used will embrace according to their ordinary signification, which must prevail unless qualified- by other expressions in the instrument;” and lord Eldon, in afterwards affirming the decree, remarks in allusion to this rule, that it has sometimes operated directly contrary to the intention of the testator, but notwithstanding, has been allowed to prevail. I know that a testator may, by terms of the will, so circumscribe and confine the general residuary clause, as that the residuary legatee shall be a specific instead of a general legatee. This may be done by a clause particularly enumerating certain things, and then using general terms in the same clause, and is the disposition to the same person. This is what has been known as the doctrine of ejusdem generis, established in the cases of Cook v. Oakley, 1 P. Wms. 302 ; Trafford v. Berrige, 1 Eq. Cas. Abr. 201 ; Timewell v. Perkins, 2 Atk. 103, and *Minor’s ex’x v. Dabney, 3 Rand. 191, — to which may be added the more modern cases of Fleming v. Burrows, 1 Russ. 276, and Arnold v. Arnold, 8 Cond. Eng. Ch. Rep. 40, explaining, and, as I think, limiting that doctrine. Taking it, however, as broadly as it is stated in Minor’s ex’x v. Dabney, it does not apply to this case; first, because money was given in the previous clauses, and upon the doctrine of ejusdem generis, ought to pass in the residuum ; and secondly, because that doctrine does not permit a reference to be made to other clauses of the will, giving specific property to different persons. 'The clause in this will in favour of Bedgood contains no enumeration, but gives all the balance, if any. Taken per se, it passes every thing ; and unless the words had been restrained by something in the context, they cannot be limited.

I am of opinion that the decree should be affirmed.

BROCKENBROUGH, J.

The only difficulty in this case arises from the use of the words “if any,” in the residuary clause. They indicate a doubt in the mind of the testatrix whether there would be any balance of her estate over and above her debts, funeral expenses, and legacies. I was at first strongly inclined to think that from the expression of this doubt by the testatrix, she had in contemplation only the disposition of her furniture, and other little property in possession, independently of the large sum of nearly 3000 dollars which was found in her house at her death, and that this sum did not pass to the residuary leg-atee. But my first impression is removed.

To what time does the doubt in the mind of the testatrix apply ? Not to the time of making the will, but to 1he time of her death. She could not doubt that there was a balance, and a large balance, when she made the will. She knew there was a large sum of money then in her house. Her debts were small, and *her legacies trivial. The words “if any” were used to express a doubt whether there would be any balance at the time of her death. She was then in good, health, she might live a long time, and might spend the money ; or, as she lived alone in the world, she might lose it by pilfering or plunder.

Understanding these words in that sense, the question is, whether the words of the residuary clause will pass the money to Bed-good. “He shall receive the balance of my estate.” This is a very comprehensive word, and carries every kind of personal estate, money, slaves or furniture, unless restricted by the plain meaning of the testator. The argument of the appellants’ counsel is, that the bequest of the balance must be restricted to things ejusdem generis with those specifically bequeathed. I am disposed to think that the rule laid down by judge Coalter, in Minor’s ex’x v. Dabney, 3 Rand. 203, is correct. “If a testator gives to A. specific legacies, and also to B. C. and D. and in a general clause gives the residue to A. he is undoubtedly residuary legatee of every thing not perfectly disposed of. But when certain things are left to A. and in the same clause the residue is given to him, it is either a general residuary clause to him, of every thing not perfectly disposed of, or to be construed and restrained to things of the like kind, according as a sound and just construction of the whole will demands.” The decision in that case was undoubtedly correct. The bequest was of “my books, medicine and shop furniture, and all the estate not before devised, including my gig and saddle horses.” The judgment was that lots in a town (including the lot on which the shop was erected) and slaves, did not pass, but that the legacy should be restricted to property ejusdem generis. That case will not apply to this, because there is no specific legacy to Bedgood, either in that or any other clause of the will, with which to connect the residuary legacy, so as to make the latter of the ' like kind with the former.

*But if it were right to make a farther restriction of the legacy, to things of the same kind with those given to the other legatees by the other clauses of the will, still it will not apply to this case, because this residuary legacy is ejusdem generis with those of the other legatees. The testatrix bequeathed money to three several persons; namely, to the freedman Kit, to Aswell for the support of the slave Harry, and to Sarah Cathen ; and the residuary clause to Bedgood bequeaths money to him.

I am for affirming the decree.

CABEEB, J., concurred in affirming the clccrcc»

BROOKE, J.

I shall say very little on this case. Parol evidence is admissible to prove the,person intended by the devise, the condition of the testator, or the amount and condition of the property on which the will is to operate. Nothing in all this contradicts or varies the meaning of the words of the will. It only explains the object and subject to which the words of the will were intended to apply. Thus, in the case of Harris v. The Bishop of Lincoln, 2 P. Wms. 136, parol evidence was held admissible to ascertain which of two persons named John, and equally answering the description in the will, was meant by the testator to take under the devise. So as to the property intended to be bequeathed : in Fonnereau v. Poyntz, parol evidence was let in to prove that the testator intended to give specific sums of money, and not annuities. Now, in the case before us, if parol evidence is let in to prove what the testatrix said at the making of the will, there can be no doubt that she did not mean the residuary clause to comprehend the large sum of money found in her house at her death ; and whether she feared to let it be known that she had so much money or not, is immaterial. When asked how she meant to dispose of the balance of her property after *the payment of the legacies, she said, there could not be more than 30 or 40 dollars, and that she intended to give to her executor (who was then writing the will) for his trouble; on which he drew the residuary clause, and inserted the words if any; which words certainly had reference to the 30 or 40 dollars, and not to the sum found in the house. They could not refer to the probability that the testatrix was to live long enough to spend the whole of it. Her age, her circumstances, in short, every thing discountenances the suggestion. By this exposition, the words in the residuary clause are not changed in their meaning. “The balance of my estate, if any,” it is true would comprehend any property coming to her, whether she knew of it or not: but the parol evidence of what she said when the executor was writing the will, if admissible, as I think it is on authority, confines the clause to the property in her contemplation at the time, and negatives the idea that she intended to give more than expressed by her.

Very little aid is to be gotten from cases in the construction of wills. In Minor’s ex’x v. Dabney, I cited none, because the words in the residuary clause were peculiar; and though as broad as the words in the clause before us, they were held not to embrace the whole of the estate not before devised.

I am of opinion that the decree should be reversed.

TUCKER, P.

I have seen no reason to change the opinion which I gave in this case on the first argument; but as it has been so much discussed, and as I am so unfortunate as to differ with some of my brethren, it may not be improper that I should endeavour to present, in a clearer manner than before, the considerations which have led me to this result. In doing so, I shall altogether avoid most of the topics discussed and the cases cited in argument, which appear to me irrelevant; and confine myself'to the single question of the true construction of the residuary clause in the will before us. *1 begin with the postulate, that as the law gives the power to dispose of property by will at the discretion of the testator, his intention must always govern in the construction of his last will and testament; and I will add, that if that intention be consistent with the rules of law, it will be carried into effect, whether the will be draughted with technical accuracy or not. The consequence of these principles seems to be, that in the construction of wills which carry evidence upon their face that they have been the work, of ignorant testators, and not of experienced and enlightened scriveners, adjudicated cases can afford us little aid. As has been truly said by the great luminary of this court, “ adjudged cases upon wills have more frequently been produced to disappoint than to illustrate the intention.” It is better that we should look to the situation and circumstances of the testator, to the probabje intelligence of the draughtsman of the will, to the sense in which he, if a common man, unskilled in technical niceties, has probably used the words of the will, than incur the hazard of defeating his legitimate intention, by affixing to them the meaning a professional man.would give them. In these views, I found myself not only upon the principle established by the common law for centuries, but also upon the decisions of this court itself. Kennon v. M’Roberts & ux. 1 Wash. 99, 100 ; Shermer v. Shermer’s ex’ors, Id. 271.

With respect to the facts of the case, I shall proceed upon the assumption that the sum of 2978 dollars was in the testatrix’s possession at the date of the will. If this matter were doubtful, I should deem it important to send the cause back to have it ascertained. But in truth the case has proceeded upon that hypothesis, and the answer of the defendant impliedly admits it, since he declares that in his opinion One great reason for the remark attributed to her,, “was to conceal from the world the amount of money she had.” *The case, then, stands thus. A single woman (said in the argument to be an old lady) has by her upwards of 2900 dollars, together with a very small personal property, estimated (exclusive of two slaves) at about 200 dollars. One of the slaves is emancipated, and has a legacy of 50 dollars : the other is bequeathed to a friend, with 100 dollars for his support. A buffet, two trunks, three bed covers, and twenty dollars constitute the bequests of the will, which concludes with the following clause: “ I appoint James Bedgood my executor, and that he shall receive the balance of my estate, if any.” Under this clause, he claims the 2978 dollars. On the other hand, the testatrix’s next of kin claim it. These are Nancy Miars, and the descendants of three other stocks, to wit, Nancy Powell, James Cathen and William C’athen. With the first, the defendant tells us she was at variance : but it seems that she was not so with the rest. Thus circumstanced, she sends for Bedgood to draw her will; and at the time it was preparing, she said, in speaking of the balance of her estate, that it would not exceed thirty or forty dollars.

The first question which presents itself in the case, is as to the admissibility of this declaration. It cannot be denied, that in construing the will, we must look to the subject upon which it is to operate; and evidence is therefore proper to prove the value of the personal estate of the testatrix, and the fact of the possession by her of this 2978 dollars. But this is not all. The declaration of the testatrix, as to her supposed estate, is also evidence to explain the ambiguity as to her intention in relation to the bequest of the sum in question, which is disclosed by the proof of the fact of its existence. She is in possession of a large sum in money, and yet says, she wills the balance of her estate, if any, to her executor. Now, if she looked upon the money as comprehended by the word estate, she could have no doubt that there would be a balance to the amount of ^nearly 3000 dollars. When, therefore, she speaks in those doubtful terms “ the balance of my estate, if any,” we are forced to doubt whether, by the word estate, she did mean to comprehend her money. To explain this doubt, the evidence is introduced of her declaration that “there might be 30 or 40 dollars, and that the man might have it who attended to her business.” Such evidence is not in conflict with the statute of frauds ; at least that part of it which relates to her estimate of the probable balance of her estate. The cases clearly shew its admissibility. I might content myself with referring to the case of Langham v. Sanford, 17 Ves. 435 ; S. C. 19 Ves. 641, where parol evidence was admitted of what passed at the time the will was written; and although declarations of the testator prior and subsequent to the making of the will weighed little, his declarations when it was made were deemed important. I will add, however, that all of the cases decide that in the construction of wills, we may and must look to the circumstances of the testator, of his estate, and of his connexions ; and this is distinctly admitted and acted upon in the case of Puller’s ex’ors v. Puller, 3 Rand. 83. See also Bucher’s Case, Goul. 99 ; Reat v. Lee, 2 Eq. Ca. Abr. 298; Fonnereau v. Poyntz, 1 Bro. C. C. 472 ; Dyose v. Dyose, 1 P. Wms. 305 ; Duke of Rutland v. Dutchess of Rutland, 2 P. Wms. 210, 1 Ball & Beatty 449, 481, 6 Eng. C. L. Rep. 244, 245, 246 ; Goodinge v. Goodinge, 1 Ves. sen. 231; Shelton’s ex’ors v. Shelton, 1 Wash. 56 ; Kennon v. M’Roberts & ux. Id. 99, 100; Guthrie v. Guthrie, 1 Call 14 ; 3 Binney 484 ; 2 Maule & Sel. 448. In Goodinge v. Goodinge, evidence was admitted to prove that the testator knew he had poor relations living in a distant county. The knowledge of the testator of such facts, therefore, seems admissible, and the fact of such knowledge is best derived from his own declarations. So, too, with respect to the property of the testator. If, at the time of making the will, he makes *a declaration in reference to his property, such declaration may be resorted to, to explain a latent ambiguity in his will. Thus, in the present case, in looking to the estate which is the subject of the will, and considering it in reference to the expressions “the balance of my estate, if any,” a doubt at once suggests itself whether the testatrix did or did not design to embrace, under the term estate, this large sum of money. To explain this doubt, we have evidence of the testatrix’s declaration that the balance of her estate would not exceed 30 or 40 dollars ; whence the inference is irresistible, that she did not mean to comprehend the 2978 dollars. This evidence seems to me beyond all exception.

Taking, then, the evidence of the testatrix’s declaration, let me proceed to state some of the considerations which induce a conviction on my mind, that she never designed this sum of money for Bedgood.

1. Because, without any assignable reason, she thus cuts off those united to her by the ties of blood, with only one out of seven of whom is it pretended she had any disagreement ; and the allegation as to that one is not proved. It is said, indeed, she has shewn her disregard of them by not mentioning them; but that is begging the question, if, as I suppose, she designed to leave the 2978 dollars to the legal distribution among them.

2. Because she has given her property to a stranger, who had no claims upon her, except that she named him her executor ; and it is not conceivable that she would give 2978 dollars as a compensation for administering 200 dollars.

3. Because her declaration that there might be a balance of her estate of 30 or -40 dollars, and that her executor might have it, clearly negatives the idea of her designing to give him this large sum. If those words had been inserted in the will, they would have excluded all doubt. They ought not to have less weight, upon the proofs in the cause. *4. Because that declaration clearly shews, that the testatrix used the word estate in a more limited sense than it has in legal parlance ; for as, on the one hand, she must have known that she had this money, so, on the other, if she had looked upon it as a part of her estate, she could have no doubt that the balance would have been 3000 dollars instead of 30. Now, the word estate, however comprehensive, is often limited and restricted in its signification. Thus in Minor’s ex’x v. Dabney, the testator clearly thought his gig and saddle horses were not embraced by the words “all the estate not before devised ;” and the court decided that those words did not comprehend undevised lands, slaves and other personal estate. So also is it with other general expressions : they are susceptible of limitation according to the plain intention. Thus, in Trafford v. Berrige, the bequest was of all the testator’s goods, chattels, household stuff, furniture and other things in the house. Yet £2f>$. in ready money in the house was not included under the words goods, chattels or other things. So in Timewell v. Perkins, the devise was of plate, jewels, linen, household goods and coach horses, and every other thing whatsoever or wheresoever. Yet goldsmiths’ notes and bank bills were held not to pass under this sweeping expression. And truly I think they were rightly rejected. For money, particularly where it is in large sums and composes the bulk of the testator’s property, cannot reasonably be supposed to be thrown into a residuary clause, which, from its very character and phraseology, is designed to cover unremembered fragments of a testator’s personalty. Still less can this be believed where that personalty is a beggarly property not exceeding 200 dollars in value. To include the bulk of the estate in such a residuary clause, while the testator has enumerated and bequeathed personal things of far inferiour value, would violate every known principle of human nature. In 1 Ves. sen. 273, a case is*cited from Precedents in Chan. 8, where it was held “that a large sum of money did not pass, because, if the testator had intended it to pass, he would not have couched the gift under such general words and in the case itself in Vesey, it is clearly implied that a large sum of money would not be held to pass under the general expressions “goods and chattels in my house.”

All these cases prove, that however general a term may be, its signification will be limited and restricted to meet the views of the testator. The word estate in this will may therefore be so limited ; and the rather, as it is a word that an ignorant person may well be supposed to use in a restrained signification, confining it sometimes to landed property, or, if used in reference to personalty, embracing by its slaves, stock, moveables, and other like articles, but rarely comprehending money, bonds, &c. In the case of Minor’s ex’x v. Dabney, the testator’s language shewed that he doubted whether the word would include gig and saddle horses, and the court decided that it did not include certain undevised lands, slaves and other property. So too in Arnold v. Arnold, the testator, by the use of the terms “wines and property,” seems to have had some doubt whether wines would pass under the word “property.” Such discrepancies in the use of the most common terms are of every hour’s occurrence. In the present case there can be no doubt that money was not intended to be comprehended, as it is impossible, if it had been, that the testatrix could have expressed any doubt of the existence of a balance of her estate, after the deduction of the insignificant legacies she had specifically given.

Eor these reasons, and without any reference to the cases on the doctrine of ejusdem generis, I am of opinion to reverse the decree. Decree affirmed.  