
    JULY TERM, 1843.
    Esther Luckey, et al. vs. William W. Dykes, et al.
    A bequest in a will, directing the executors to emancipate slaves of the testator, is void, because in opposition to our state policy.
    The general residuary legatee is .entitled to take, in preference to the next of kin, whatever may, by lapse, invalid disposition, or other casualty, fall into the residue, after the date of the will.
    Where it is plain, from the language of the will, that testator intended to constitute certain persons residuary legatees, not of his estate, but only of the proceeds of property directed to be sold, and, in part appropriated to other objects, then, whatever may by lapse, invalid disposition, &c., fall into the residue, after the date of the will, will go to the next of kin.
    At the April term of the probate court of Carroll county, the appellants filed their petition, setting forth that William Johnson, late of said county, had departed this life, making his last will and testament, which had been duly recorded; by which his executors were directed to emancipate his slaves; that so much of the will, as directed the emancipation of the slaves, was void, and that they, as next of kin, and heirs at law of said Johnson, were therefore entitled to the slaves, or their proceeds, and prayed a sale and distribution, &c.
    At the July term, the appellees filed their cross petition, admitting the facts set forth in the petition of appellants, and claiming the slaves, as residuary legatees. The passages of the will, bearing upon the question involved in the case, are set out in the opinion of the court. The probate court rendered a decree, in favor of the appellees, to reverse which this appeal is prosecuted.
    
      Sheppard and Thompson, for the appellants.
    The counsel of the appellants, in the above case, pray that a reargument may be awarded, and respectfully submit to the court the following considerations, as the grounds of their application :
    1. The testator must die intestate, as to all of his property, not disposed of by the expressions of his will. He directed that certain slaves should be freed, at the death of his wife. This disposition being void, in consequence of its conflict with the fundamental policy of the law, the slaves must pass to the appellants, as the next of kin, unless they are disposed of by some other clause of the will. The first clause of the will, by which it is contended for the appellees that they are disposed of, is as follows : “ At my wife’s death, all my property, except my land, negroes, and household and kitchen furniture, to be sold, and the proceeds to be equally divided between William Young and William Dykes.” The expressions of the will is the only evidence that we have of the intention of the testator. Now, what intention does the above expression evince 1 Certainly it can evince no other, but that these legatees should take a certain and definite quantum of the estate ; and no language could have been used by the testator, which would have more clearly and certainly ascertained the extent of their interest, unless he had specifically enumerated each article of his property, which he intended should go to them; and under this clause of the will, they can only be considered general legatees of a specific fund. And the express exception of the slaves, is a sufficient answer and bar to the claim of the appel-lees, under this clause of the will. The court will not indulge in any speculation or presumption, to ascertain why the slaves were excepted from the fund given to the legatees, or to ascertain what person would have been the object of the testator’s bounty, had he have known that the manumission of them was void. Nor is it considered that the court could regard this exception as surplusage. In the case of Jones v. Colbeck, 8 Yes. Rep. Lord Eldon, in stating the opinion of the court, held, that the effect of a direct and positive bequest, could not be controlled by inference and argument from other parts of the will. The same rule was fully recognized, in the case of Collet v. Lawrence, 1 Yes. Jr. 269; and in the case of Cole v. Wade, 16 Yes. 45, it was held, that an express bequest could not be affected, or controlled, by the reasons assigned by the testator, for making it. And the court refused to strike out and treat as surplusage, certain words in the bequest, because they conflicted with the reasons assigued by the testator, and when it was probable that the words were introduced by mistake. In the case of Davers v. Dewes, 3 Peere Wins. Rep. 40, the testator, in framing his will, specified certain property which he stated he intended to dispose of by a codicil to his will, and made the following residuary clause: “ All my property, not herein disposed of, or reserved to be disposed of, I give to A and B,” naming the legatees. The testator failed to dispose of the property, reserved to be disposed of, by the codicil to the will, and the court held, that the legatees under this clause of the will were not entitled to this fund, which the testator had failed-to dispose of by codicil, because it was excepted in the provision of the will under which they claimed, and it was determined, that the next of kin were entitled to the fund. In the -case of ¡Sinkler v. Sinkler, 2 Dessau s. Rep. 127, the testator made a conditional bequest, giving a certain portion of his persona] estate to a- legatee, if he would comply with certain conditions; the legatee neglected to comply with the conditions, yet the court held, that the legacy should not pass to the residuary legatee, on the ground of an implied intention on the part of the testator, that ■ it should be excepted from the residue. From the -consideration of these authorities, it is respectfully submitted to the court, whether the appellees can establish any right of property to the slaves, under the first clause of the will.
    The last clause of the will, and which seems to have been the one on which the court decided the cause is as follows : “ At my wife’s death, the proceeds of the sale of the crops, stock, farming utensils, or whatever else be sold, my executors to be paid for their trouble about my slaves. As I particularly charge my executors ,to have my slaves attended to, have their freedom, and settled on the land left to them, except they should wish to go to some other state; in that case, sell their land, and see them-renroved and settled; the balance, after all the expenses is paid, will be given to William Young, and William W. Dykes, to be equally divided between them.” This sentence of the will is not grammatically expressed, and as the intention of the testator is obvious and apparent,-the court can supply the proper words; this principle is fully recognized, in the case of Covenhoven v. Skitter, 2 Paige, 122. The charge, in- the above sentence, directing the. -executors to take:care of the slaves, and see them settled, &c., should be included in a parenthesis, as it is obvious that it was suggested to the mind of the testator, by the mention of his slaves, in his providing a fund out of which his executors should be paid for their trouble about them. And the clause of the will, after supplying the words, which it is evident the testator intended to use, and leaving out the matter which should be included in a parenthesis, would read as- follows: “ At my wife’s death, out of the proceeds of the sale of the crop, stock, farming utensils, or whatever else be sold, my executors are to- be paid for their trouble about my slaves; and the balance, after expenses are paid, to be given to Young and Dykes.” Now, the question arises, to what does the word “ balance ” refer ? It certainly was not intended to refer to the whole estate; for, it is evident, on a consideration of the whole will-, that the testator did not contemplate that there would be a.residue of his entire estate, as the whole estate had been disposed of, and there would have been no residue, if the provisions of the will could have been carried into effect. He had given all of his property to Dykes and Young, except- his slaves, land, and furniture; his slaves were freed, all of his land had been specifically devised, and he had bequeathed his furniture to his wife. There would have been no residue, and we cannot suppose-that the testator contemplated a. general residue. It is manifest, then, that the balance referred to, was the residue of the property directed to be sold, at his wife’s death, after deducting therefrom what should be paid to the executors, for the execution of their trust. And this would pass to those legatees the precise quantum of interest which the testator had given them in the first clause of the will, charged with the expenses of the trust. It is a familiar rule, that whenever there are specific dispositions of property, and in the same sentence there is a residuary clause, such clause has reference to the specific fund, and the legatee, under such clause, is considered as a residuary legatee of a specific fund.
    In the case of Ommaney v. Butcher, 1 Turn. 260, the testator, Ackworth, after giving various legacies, directed his books, linen, plate, &c., to be sold, and concluded his will as follows : “ I desire to be given to Mr. Ellis, and nay two executors, five guineas each, for a ring, as a token ; and, in case there is anything remaining, I desire it to be given in private charity.” Sir Thomas Plummer, in stating the opinion of the court, held, that the testator was adverting to the linen, books, and plate, which he had directed to be converted into money, (and that the residuary clause did not comprehend the general residue, but must be considered as applying to the residue of the articles to be sold, after giving five guineas each, to Ellis, and the executors.
    In the case of The Attorney General v. Johnson, 5 Ambl. 577, Lord Camden held, that it was the opinion of the court, that the testator intended to confine the residue to a specific fund, and that it was not a general residue. The clause of the will being as follows : “If my personal estate shall sufficiently reach to the satisfaction of the legacies bequeathed, I direct my executors to give the remainder to the charity schools of Hamburg.” The same principle is fully recognized, in the case of Murry v. Nesbit, 5 Yes. 149, and Baker v. Hall, 12 Yes. 496, in which cases, certain property was excepted from the residue, on the ground of implied intention.
    The clause of the will, giving to each of the heirs one dollar, I do not consider, could control the opinion of the court. For, although it appears that he intended to disinherit his heirs, it is equally clear, that the testator did not intend that the slaves should pass to any legatee under the will; and if, by the expressions of the will, they are not disposed of, they must necessarily pass, by the operation of law, to the next of kin. If the construction of the residuary clause is not fully settled, by the authorities referred to, it will at once be made evident, by considering the context of the sentence. Now, to what does the word “ expenses ” refer 1 Mos.t certainly to the charges of the ex7 ecutors of the will, for executing their trust, and for the payment of which the testator had just provided a fund; and the word balance refers to what remains', after these charges are paid. But these charges are to be taken out of a special fund — to wit, the proceeds of the sale of the, property, which the testator-had directed his executors to sell, at his wife’s death. Then, it is most evident, that the word balance refers to the residue of this special fund, which provision we may very reasonably suppose the testator would make in, mentioning in, this last sentence, the precise fund which he had before given t,o Dykes and Young, and therefore they are only,entitled ta the residue of this special fund.
    If the court, in opposition- to. these views and authorities,, should yet consider, that Dykes, and Young are general residuary legatees of the whole estate, then we would ask,, that the case might be opened for argument, on the p.oint suggested by the court. The cases decided in th,e chancery court, in England, giving to the residuary legatee whatever portions of the personal estate should fail to be disposed of, by the expressions of the will, are overstrained in principle, an,d do not extend, to void devises of the realty; this distirictipn, between real and, personal estate, has n.o solid foundation ip principle, unless on, the following consideration; for, if th,e expressions of the will are sufficient to pass the personalty, it should a,lso carry the realty. But the, distinction seems, to haye been placed on the broad distinctions, recognized by tjie common law, between the real and personal estate, and the superior title of the heir to the real, over the, personal es.tate. Bujt by all out; statutes, taken in pari material, ip reference to personal estate, all. th.e differences, which existed at common law, between it and the realty, are-abolished ; both are subject to the same charges; and under our statutes, the title of the heir- is, as fully secured to him, to. the personal estate, as it was at common law to the real estate.. By statute, here, they both descend alike; and, as at common law, the heir could not be disinherited, by a forced construction of a residuary clause, it seems that under our statute the sanie rule of decision, in a like case, should be applied to the personal estate.
    
      William Yerger, for appellant. ■
    The facts of this case are briefly these. William Johnson, of Carroll county, died, making a will by which he directed the manumission of certain slaves, devising to them certain real estate, and giving several specific bequests. Among others, he bequeaths “ to each and all of his lawful heirs one dollar a-piece.” To his wife, he bequeaths “ all his negroes as long as she lives; at her death all his negroes to be emancipated and set free.” The will contained a residuary clause in the following words. “At my wife’s death, all my property, except my land, negroes, and household and kitchen furniture to be sold, the proceeds to be equally divided between William W. Dykes and William Young.” In another part of the will, the testator uses these words : “ The proceeds of the sales of the crop-stock, farming uteusils, or any property that be sold ; my executors to be paid for their trouble about their slaves, or any other thing; the balance, after all expenses paid, will be given to William Young and William W. Dykes, to be equally divided between them.” The probate court of Carroll county treated the bequest of freedom to the slaves as void, and decided that the appellees were entitled to the slaves or their proceeds as residuary legatees, and that the appellants, the heirs at law, and distributees, were not entitled to any personal thing, except the specific bequest of one dollar, given by the will. •
    The rule of law has been clearly laid down, and repeatedly acted upon ; that where the residuary legatee is general legatee, he is entitled not only to what remains after payment of debts and legacies, but also to whatever may by lapse, invalid disposition, or other casualty, fall into the residue after the date and making of the will. 2 Roper on Leg. 453. 15 Yesey, 589. 4 Hawk. 215. 4 Paige R. 115.' 1 Dev. Eq. R. 386. 3 Howard, 337. 8 Vesey, 12. 1 Roberts on Wills, 444.
    Every testator is presumed not to intend to die intestate as to any part of his estate, and therefore a residuary clause, unless expressly restrained, is always held to pass whatever is not otherwise disposed of. 1 Dev. Eq. R. 388.
    The case at bar, cannot be distinguished from the case of Vick v. M’Daniel, et al., 3 How. R. 337, in which this court held, that where a testator made several specific bequests, and also manumitted several slaves contrary to the law and polic3t of the state, that the slaves went to the residuary legatee, not to the heir at law or distributee.
    In the case of Vick v. M‘ Daniel, the court uses the following language. “The rule of intention, which is cardinal in the construction of wills, when there is doubt in the language of them, cannot be the criterion in cases of this kind.” Again says the court: “It is plain the testator intended the slaves to be emancipated; he did not intend they should belong either to the residuary legatee, or heir a% law, but as his intention is defeated by operation of law, the question of ownership must be settled by established rules,” and “the courts refuse the bequest to the heir, because it is .plain the testator did not intend to die intestate.”
    In the case at bar, it is clear that the testator intended to exclude the heirs at law, because he gives them only the nominal sum of one dollar each. He gives to the appellees all his property, “ except his land, slaves, and household and kitchen furniture.” These parts thus excepted had been previously disposed of; and the fact that he excepts them nominatim and specifically, cannot make the case stronger than the use of the words “not before bequeathed,” as found in the case of Vick v. M’ Daniel.
    
    Had the words of the will been, “I bequeath all the rest of my property, except that herein before disposed of to Dykes and Young,” there would have been no contest in this case, and yet the use of the general words, “except that herein before disposed of,” would evince as fixed a determination to exclude the residuary legatee as the particular words, embracing the articles which had been previously bequeathed. The residuary legatee takes, not because the testator intended to give the thing to him, but because the testator, by making a residuary clause, has shown that he did not intend to die intestate, and not having so intended, all that, of which no disposition has been made by reason of any casualty, shall 'enure to the use of the party who 'seems to hiVe been the object of the testator’s bounty, and to whom it i's to be presumed therefore the bequest would have been made, had the 'testator foreseen the event which took place.
    The case cited from 'Peere William's, '40, of toavers v. Dewes, does not militate against the positions I have taken. Why ? •Because in that case, the 'testator declared his intention not to dispose of Certain plate by his will, but to reserVe it to be disposed'of by a codicil; and in the residuary clause, he gave his wife “ all his estate not before disposed of, or reserved to be disposed of,” and the court held the residuary legatee, hot entitled to 'the part reserved "to be disposed of, b'ec'aiise by making such reservation, it was manifest, that the testator did not intend to dispose of the godds so reserved. Whereas in the "case at bar, and all 'other InValid dispositions, the very fact of such illegal 'disposición baVin'g been made, :is evidence that the testator did intend to dispose of such part, so illegally or informally given.
    The/qtres'tidn fo'r the Court tb consider in cases of this kind is, hó't whéthe'r 'the tCstkfor intended the specific' thing to go to the residuary legatee, beCau'se his’fnakibg a specific beque'st is evidence 'thdt he did not; 'but did he intend to die intestate as tb the Specific fh'i'hg d ítnd thecdurtk Wve'hmfdrfhl'y held, that ‘as the testator has rhade-h ^pecifib bequest,-and then a bequest-of áll tlife residuCdf !his Ip'rdperty, thdre is 'conclusive evidence of an "intention not to die ’intestate, ahd :ks the testator had two objects in view, one to give a specific thing to a certain ‘person, the Hthfer not to die intestate, "inasmuch as the "first intention 'Cannot he-carried into effect, o'wing to same'casualty, the secdhd 'objector intention'of the testator shai'bprevkll.
   Mr. Justice Clayton

delivered the'opinion of the court.

William Jóhn’Son, late of Carroll-county, by his last will and 'testament, directed that his 'slaves should be emancipated hy hisexecutdrs. It is admitted on all "hands 'that'this bequest -is void ¡because'in opposition tobur state'policy. The appellants, the next of kin of the testator, claim the slaves; — the appellees likewise claim them as residuary legatees under the will.

The law is well settled, that the general residuary legatee “is entitled to take whatever may by lapse, invalid disposition, or other casualty, fall into the residue after the date of the will.” Vick's Executor v. M’Daniel, 3 How. 337. 4 Kent, 514. James v. James, 4 Paige, 114. The only question then, seems to be, whether by a fair construction of the will of the decedent, it contains a general residuary clause under which the slaves can pass to the appellees. The testator in this instance was manifestly an illiterate man, but little acquainted with the structure of language: hence there is some apparent ambiguity in his expressions. ■ We shall extract so much of the will as bears upon the point in dispute, leaving out some intermediate passages which break in upon this particular subject, and destroy its continuity, but have no connection with it.

At my wife’s death, all my property, except my land, ne-groes, and household and kitchen furniture, to be sold, the proceeds to be equally divided between William Young, and William W. Dykes. My wife to dispose of the household and kitchen furniture as she thinks proper, my executors to be paid out of the proceeds of the land and stock, for their trouble, until my wife’s death, for any trouble they should be at with the care and freedom of my slaves,.they must be paid, out of the sales of my property. Its understood, at my wife’s death my negro woman Winny draws twenty-five dollars per year out of the sales of my property, to go to any person she should make choice of .living with, at my wife’s death, the proceeds of the sales of the crop, stock, farming utensils, or any other property that be sold, my executors to be paid for their trouble about my slaves, or any other thing; the balance after all expenses is paid, will be given to William Young and William W. Dykes, to be equally divided between them.”

“ I constitute and ordain John W. Dykes, Hugh R. Young, Thomas Bovard, and John J. M’Caughn, or any two of them, executors of my last will and testament.”

When those parts of the will which bear upon the point, are thus viewed together, exclusive of other portions which do not relate to it, it is plain that the appellees were constituted residuary legatees, not of the estate, but only of the proceeds of property directed to be sold, and in part appropriated to other objects. The term balance has reference to what remains of the proceeds of the sale, after paying certain charges and expenses, not to any general residuum of the estate. There are no words going before or following after, to which the term balance can have relation, which would point to the conclusion, that it meant a residuum of the whole estate. The slaves are by words expressly excepted from sale; it would be a great stretch of interpretation to say that they are comprehended “ in the balance of the proceeds of the sales,” when they were forbidden to be sold. Had the testator used the expression, “ the balance of his estate,” or any other of equivalent import, the slaves would have passed under it. But we cannot interpolate words into a will, and without such interpolation, we think the slaves pass to the next of kin.

The probate court, having made a different order, the decree will be reversed, and the cause remanded, with directions to that court to conform to the present opinion.

Judgment reversed.

Note. — This cause was argued, and the 'decree of. the court below affirmed. A rehearing was afterwards granted, and the foregoing opinion delivered. The argument of Messrs. Sheppard and Thompson was made on the application for a rehearing.  