
    Malone, adm'r. vs. Majors.
    .1. When there is a devise of property to the children of the testator’s brothers and sisters, the devisees take per capita and not per stirpes. Seay, aclm'r. vs. Winston et als, 7 Hum, 471, referred to and approved.
    2. By the act of 1784, ch. 22, a provision for the wife in a will, of itself, forces her to elect whether she will take under or against the will; and if she does not declare her dissent in open court, within the six months allowed by the act, the provision will be considered fully satisfactory, and she cannot claim any portion of property \ as to which her husband died intestate.
    3. Thompson Ward executed .an assignment to Mary Ward, by which he conveyed to her “all his interest, title, and claim to any and every part of the estate of the late Wm. Ward, whether consisting of real or personal property, money or choses in action, which he was entitled to under the will of the said Wm.-Ward, after the death of her, the said Mary.” Held that this passed only such interest as Thompson Ward took under the will, and not his interest in the property as to which Mr. • Ward died intestate, nor any interest purchased from other devisees or distributees.
    4. Two of the legatees named in William Ward’s will died before the testator. Held that the legacies lapsed, and that as to that portion of his estate, William Ward died intestate.
    The bill in- this case was filed to obtain a construction of the will of William Ward, deceased. The principal controversy grew out of the following clause: — “I do also give and bequeath the one-half of my property above, given to my said wife, Mary Ward, during her life, to be equally divided at her death between my brother Joshua Ward’s three daughters, Rachael, Rhody and Sealy, and Thompson Ward, son of my brother James Ward, to them and their heirs forever.” Rhody and Sealy died before William Ward, the testator. -
    The cause was heard before Bromfield L. Ridley, chancellor, and an appeal taken from the decree rendered by him.
    
      Charles Ready, for complainant.
    This is a bill filed for a construction of the.will of Wm. Ward, deceased, and for directions to his administrator de honis non with the will annexed, how to make distribution of the estate under the will. Wm. Ward died intestate as to the portions of Ms estate devised to Rhody and Sealy. 1 Roper on Legacies, 320-331.
    - A question is raised in the record as to the quantum of interest Thompson Ward is entitled to, under said devise. It is insisted by those claiming in his right, that he is entitled to one half of all the property which would pass under said devise, that is, he is entitled to as much as Rachel, Rhody and Sealy would all be entitled to, if all were living.
    This claim cannot be admitted. The four persons named were to take per capita, and not per stirpes; and each was therefore to have an equal share. 1 Roper on Legacies 126, 2 Roper 264.
    It is also insisted by the devisees of Mary Ward, deceased, that Wm. Ward died intestate as to the shares of Rhody and Sealy; that Mary Ward, widow of Wm. Ward, was entitled to one half, or one third of said lapsed legacies, under the statutes of distribution; and that they ás her déviseés are entitled to whatever she was.
    This claim in right of the widow cannot be allowed. She was entitled to the half of the testator’s whole estate, (except a specific legacy to Thompson Ward,) and to no more. She did not dissent from the will. The Stat. 1784, ch. 22, sec. 8, governs her rights.
    Also a question as to what interest or portion of the'estate •passed to Mary Ward by a deed from Thompson Ward; whether or not his share of the lapsed legacies passes under said deed; and also whether or not, a supposed interest he had by purchase from Large and wife, passes under said deed.
    ’ The terms of the deed from Thompson Ward to Mary show, be only conveyed' to her the property real and personal, to which he was entitled under the will of Wm. Ward.
    
      H. M. Burton and E. A. Keeile, for defendant.
   Turley, J.

delivered the opinion of the court.

This is a bill filed for a construction of the will of William Ward, deceased, and to have declared the rights of the different persons claiming under it. William Ward, by his last will, devised all his estate of every kind and description, (with the exception of that portion of it devised, specifically, to his nepliew, Thompson Ward,) to his wife, Mary Ward, for her use and benefit during her life, and at her death, to be equally divided; the one-half to be disposed of in any way, his said wife might wish, at her death; the other half to be equally divided between Rachael, Rhody and Sealy Ward, daughters of his brother Joshua Ward, and Thompson Ward, son of his brother James Ward, and their heirs.

Rhody and Sealy Ward, two of the devisees of one-half of the estate, after the death of Mrs. Ward, died without children before William Ward, the testator: and the legacy as to them lapsed. Upon' this clause of the will, and the lapsing of the legacy of Rhody and Sealy Ward, two questions are presented.

1st. 'What interest did Thompson Ward take under the devise to himself and Rachael, Rhody and Sealy Ward? That is, do these devisees take per stirpes? Thompson Ward as representing his father, James Ward, and Rachael, Rhody and Sealy Ward, as representating their father, Joshua Ward, or per capita, each, one individual fourth part of the devise? We are clear, that they take per capita, and not per stirpes. In the case of Seay, adm’r. vs. Winston and others, 7th Humph. 472, it is held, that under a devise of property, at the death of the wife, to be equally divided between the children of the brothers and sisters of the devisor, the nephews and nieces took equal shares per capita.

The 2d. question is, what interest, if any, did Mary Ward, the wife of the testator, take in the lapsed legacy of Rhody and Sealy Ward? And we think, none at all. As to that portion of his estate, William Ward died intestate, and his wife, having had provision made for her in the will, with which she was content, cannot claim any interest therein, either as dower or by distribution.

Previous to the act of 1784, ch. 22, a devise to a wife, by her husband, was not held to be in satisfaction of dower, unless it were so expressed, or the implication, that it was so intended, was too strong to be resisted, and she might take both her dower and her-bequest; but, by that statute, a provision for the wife in a will, of itself, forces her to elect, whether she will take under or against the will, and that within six months after the probate of the will; for if she do not express her dissent to the will in open court, within that time^ the provision made for her, shall be considered as fully satisfactory to her. But if she do so dissent, then the will is not in her way, and she shall have her dower in the lands of her husband, and her distributive share of his personal estate. Mary Ward, the wife, did not thus dissent, in this case, and she, therefore, can claim no portion of the estate of her husband, either real or personal, but what has been bequested to her by the will.

A third question arises, as to the .construction of a deed from Thompson Ward to Mary Ward, executed on the 21st of August, 1841, and by which he conveys to her, “all his interest, title and claim, to any and every part of the estate of the late Dr. William Ward, whether- consisting of real or personal property, money or choses in action, which he was entitled to under the will of the said. William Ward, after the death of her, the said Mary.”

Nowit is observed, that Thompson Ward was ah heir and distributee of the said William Ward; deceased, as well as a legatee, and, therefore, as such, was entitled to a portion of the lapsed legacy of Rachael and Sealy Ward, which he does not take under the will; and it also appears, that he purchased Trom one J. C. Large and his wife, Elizabeth, who claimed to be an heir and distributee of the said William Ward, all their interest in his estate, and took from them á deed therefor, on the 10th day of January, 1840; and it is how contended, that their interest passed by the deed to Mary Ward, as well as. that claimed by him under the will.

We do not think so. Thompson Ward sold and conveyed to Mary Ward, all his interest in the estate devised to him by the will, and no more, for such were the express words of the bargainor used in the deed; and for us, now, to hold, that any interest derived'by descent, or distribution in the estate, or that may have been acquired by him, by purchase from others, and not by the deed, would'be to make a contract for him, and not to expound one.

We, therefore, reverse the decree of the chancellor in this case, and declare the rights of the parties, according to the principles of construction given by us to the will, and deed of Thompson Ward, and direct a reference to the clerk and master to report accordingly.  