
    ELIZABETH TUCKER & AL. vs. SILAS TUCKER & AL.
    A. by will devised certain lands to his wife, children and grand-children, and also directed certain parts of his personal estate to be delivered over to them. He then devised as follows* “ The balance of my land and other property 1 appoint and ordain to be sold, and the money arising from the sale thereof, not given away, to be applied to paying my debts; and the balance, if any, to be equally divided among the herein named legatees.” The will was afterwards declared good as to the real estate, but not good as to the personal estate. Held, that the balance of the proceeds of the land directed to be sold, after payment of the debts, should be divided among those who were named as legatees, though in fact the legacies had failed, by reason of an informality in the execution of the will.
    The cases of Holmes v. Mitchell, 9 Mur, 238, Williams v. McComb, 3 Ire. Eq. 450, Melchor v. Bmgen, 1 Dev. & Bal. Eq. 634, cited and approved.
    Cause removed from the Court of Equity of Stokes County, at the Spring Term, 1847, by consent of parties.
    By a will made in September 1843, Robert Tucker devised as follows. To bis wife Elizabeth lie gave 100 acres of land. To his daughter Susannah Martin $50, to accrue from the sale of his land and to her daughter Sarah, 50 acres of land. To the children of his daughter Elizabeth Norton, he gave two parcels of land, to be equally divided between them.
    Besides those devises the will contained dispositions of personalty, as.follows. To the widow two slaves. To-the testator’s children John and daughter Elizabeth, five shillings each. To Sarah, a daughter of the son John, a negro girl: and to his sons Anderson, Paul,Silas,George, Robert, and Daniel, and to his daughter Sarah, and his grand-daughter Sarah Priddy certain slaves, each.
    Then follows this clause : “ The balance of my land and other property, I appoint and ordain to be sold,'and the money arising from the sale thereof, not given away. to be applied to paying my debts ; and the balance, if any, to be equally divided among the herein named legatees.”
    The will was upon a caveat pronounced to be good, as to the real estate, but not, as to the personal. Tucker v. Tucker, 5 Ired 161. Administration was then granted ; and the residue of the real estate was sold.
    The testator’s daughter, Elizabeth, had six children. The bill is filed by the testator’s widow and children,and the grand-daughter Sarah Priddy against the administrator, the grand-daughter Sarah Martin, the grand-daughter Sarah Tucker (daughter of John Tucker) and the six children of the daughter, Elizabeth Norton; and the prayer is lor an account and distribution of the personal estate, and of the proceeds of the residue of the real estate.
    
      Morehead, for the plaintiffs.
    No counsel for the defendants.
   Ruffin, C. J.

No difficulty is made, as to the personal estate proper. The will was not effectual to pass it, and therefore it must go, as if there had been nothing said in the will about it. Consequently, after the payment of debts, and the charges of administration, the surplus is to be distributed, according to the statute, among the widow and children of the testator, or their representatives. Rev. St. Ch. 61, Sec. 1, and Ch. 121, Sec. 12. Johnson v. Johnson, 3 Ired. Eq. 426.

A question is, however, made, as to the proceeds of the real estate, upon the terms, “the herein named legatees,” as descriptive of the donees in the last clause. For the plaintiff it is contended, that no one takes under that description, inasmuch as the instrument is inoperative as to the personalty, and, therefore, no “legacy” is given in it. And; if that be held otherwise, it is moreover insisted, that the testator meant, by “legatees,” his children who were his heirs and next of kin, and not the widow, the children, and grand-children, indiscriminately, to whom the paper purports to make donations. But the Court cannot agree to that construction. It is true, that the more appropriate definition of “ legatee” is, a person to whom personalty is bequeathed. But that is not the only sense in which it is used. - It may also embrace a donee of realty by devise. Holmes v. Mitchell, 2 Murph. 228. Williams v. McComb, 3 Ired. Eq. 450. It does not follow, because the will is inoperative as. to the personalty, that the parts of it, which purport to be gifts of personalty, cannot be looked at, for any purpose whatever. As dispositions of the personal estate, they are not to be read. But for any other purpose — for example, to explain the meaning of other parts of the will, which refer to those dispositions — the whole will may considered. Thus, when the will gives legacies to particular individuals, and then adds, that the land, is given to the same persons to whom the legacies were given, the disposition of the land, does not fail merely because those of the personalty fail by reason of the want of some formality in the execution of the instrument, requisite to constitute it a will of personalty. The gift of the realty is not dependent on the efficacy of those of the personalty ; but the only purpose of the reference in the former to the latter is to designate the donees of the land, as a class of persons. The operation of such a designation is as effectual as if those donees were particularly named, although the clauses, in which personal legacies purport to be bestowed on them, fail of that end. Melchor v. Burgen, 1 Dev. & Bat. Eq. 634.

Then, as to the other sense in which it is said this term “ legatees” is to be taken, it is necessary to say very little. It is perhaps, true, that sometimes, among the very illiterate, heirs or next of kin, or both, are vulgarly called “legatees.” But there has been no such judicial acceptance of that term ; nor can there be, unless it be perfectly plain up.on other parts of instrument, that the testator meant it in that sense. We find nothing to control it in this will; and therefore we must understand by it, here, the persons, to whom the testator, had, in the previous parts of the instrument, made or professed to make donations of some sort. It is true it seems singular, that after cutting off two of his children with five shillings, and, at the same time bestowing- bounties on their children, the testator should divide the residue equally among all his children and those same grandchildren. Yet, it must be so, if the testator has said so ; for the Court cannot undertake to recog-nise all incongruities in such wills, nor refuse to carry out the directions of the testator as far as they are intelligible and consistent with law, because we may not be able to account reasonably for them. Indeed, it is often the case, that unlettered men set down to' make their wills without any settled plan in their own minds, and that they are drawn up by persons, not capable of expressing correctly the directions given to them. Nevertheless, the. Court cannot receive their words in any other than their legal sense, unless it be quite clear, in what other sense they were intended. Consequently, it must be declared, that the proceeds of the land are to be equally divided per capita, between the widow and the testator’s children, and those of his grand-children, to whom any gift had been made, or purported to have been made, in the previous parts of the will.

Per Curiam.

Decreed accordingly  