
    *Overton & Wife v. Maben & Others.
    March, 1840,
    Richmond.
    (Absent Bbooke and Pabkkb, J.)
    Wills — Construction—Case at Bar. — Testator, having: provided that his debts should be paid out of the first moneys collected from his outstanding debts, and then that his real estate, his slaves and his furniture, should be sold, and the proceeds applied, along' with the first collections from his outstanding debts, to the discharge of his debts, bequeaths to his wife a specific legacy, “in addition to what the law allows her:” Held, the widow is entitled to the portion which the Jaw allowed her, of the testator’s estate, real and personal, as it stood at the testator’s death, not to such portion as the law would have allowed her if the whole estate had been money.
    Matthew Maben late of the town of Petersburg, in and by his last will and testament, devised and bequeathed as follows: ‘T direct, 1. That all my just and lawful debts be paid out of the first moneys collected from my outstanding debts. 2. That all my real estate (which consists of the house and lot on which I live, a small plantation in Chesterfield, and a lot situated above Poplar Spring Lawn) be sold on a credit of twelve months, that my household furniture, and whatever stock of goods may be on hand, be also sold on a credit of twelve months, and such of my negroes as are not hereafter bequeathed be sold for cash, and that the proceeds be applied, along with the first collections from my outstanding debts, to the discharge of my just and lawful debts. 3. In addition to what the law allows my wife Martha C. Maben, I give her my carriage and horses, a negro woman which col. Perkinson gave me when I was married, named Sukey, and Lucy and Martha, two negro children. 4. I give Edmund Williams his freedom in consideration of his faithful services to me since he was a child. 5. I give to my nephew *John Maben (son of my late brother David) 1000 dollars. 6. I give to my cousin John Maben of Dumfries in North Britain S00 dollars; but in case of his death before this legacy is paid, his sister Ann and her children must have the benefit of it. 7. I give to Matthew Maben Jamieson of the town of Ayr in North Britain, 1000 dollars, to be remitted to his father James Jamieson, also of the town of Ayr. 8. and lastly, I give to my nephew Matthew Maben and my niece Mary Maben the residue of my estate, to be divided equallj' between them, after all my just debts and the above legacies are paid off. My nephew Matthew’s proportion of my estate must be vested in bank stock until he becomes of age, and the interest arising from it must be applied to educating and supporting him during his minority; but in the event of his death before he attains the age of twenty-one years, his portion of my estate must devolve on his brother John and sister Mary, to be equally divided between them; but in the event of John or Mary’s dying subsequent to their brother Matthew and prior to the division of my estate among the legatees before named, the survivor shall inherit the whole of Matthew’s proportion ; but should both John and Mary die subsequent to Matthew and before a division is made of my estate among the legatees as above, then the proportion that would have fallen to Matthew Maben out of my estate, I direct shall be put under the management of the common hall of the town of Petersburg, to be disposed of by them in educating poor ■ children of this place, and in any other charitable way that their judgment may direct.”
    
      The testator died without leaving children or other offspring. His wife Martha survived him. She was afterwards twice married, first to Willis Vick, and last to William Overton.
    The executors appointed by the will having renounced the executorship, administration with the will ^annexed was granted to James Jamieson; but his letters of administration were after-wards revoked, and the administration de bonis non &c. was granted to John Hobson, who had married the legatee Mary Maben.
    In a suit brought in the superior court of chancery of Richmond (aftewards transferred to the circuit superior court of Hen-rico) by the legatees Matthew Maben, John Maben, John Hobson and Mary his wife, and Hobson as administrator de bonis non &c. of the testator, against Jamieson, the first administrator, and Vick and his wife, revived after Vick’s death and her marriage with Overton against Overton and wife, for the purpose of having a settlement of Jamie-son’s accounts of administration, and a division of the testator’s estate among the parties according to his will, the following question arose: Whether the testator’s real estate and slaves, which his will directed should" be sold, should be considered as thereby converted into money, so that, the testator having left no children, his widow should be entitled to an absolute estate in one moiety of this property, or of the proceeds of sale thereof, according to the statute of distributions, 1 Rev. Code, ch. 104, 29, p. 382 ? Or, whether she was entitled only to such provision as the law made for her, considering the property such as it was at the testator’s death, real estate and slaves ? that is, to dower of the real estate, and a moietjr of the slaves for life, and if sold, to the same interest in the proceeds of sale.
    The circuit superior court held, that the widow was entitled to have her portion of the estate according to its character at the testator’s death; and decreed, that dower of the real estate should be assigned to her, and one half of the slave property to be held by her for life, and half of the other personal estate in absolute property. From which decree, this court, upon the petition of Overton and wife, allowed them an appeal.
    *Macfarland, for the appellants,
    contended, that the testator intended, for all the purposes of his will, to convert his real estate and slaves into money, out and out, and to divide it as money among his legatees including his widow, giving her such portion as the law would give her of the property so converted into money. That a conversion of the property into money, at all events, was intended, he said, was plain from several considerations: in directing the sale, he blended real estate, slaves, and other personalty, together: he gave pecuniary legacies, to be paid out of the proceeds, to foreigners; and when he came to divide the residuum between Mary and Matthew Maben, he directed that Matthew’s moiety should be vested in bank stock. And having converted the whole into money, out and out, for all the purposes of his will, one of which was the provision for his wife, when he gave his wife specific legacies “in addition to what the law allowed her,’’ he meant in addition to what the law would allow her of the estate so converted into money. He said, that in all cases of conversion into money directed by will, it should be confirmed and carried out, at least for all the purposes of the will contemplated by the testator; and in all questions between claimants under the will, the property should be considered as money; though it was otherwise, where there was a claim independent of the will. The widow was not to be put off with an equivalent: she was to take under the law, or under the will; if she took under the law, she took her legal share of the property in kind, unaffected by the will; if under the will, she took her share of the property, such as the will made it; and the will making it money, she was entitled to take her share of it as money. He cited Mallabar v. Mallabar, Ca. Temp. Talb. 79; Durour v. Motteux, 1 Ves. sen. 321; Cruse v. Barley, 3 P. Wms. 20; Ackroyd v. Smithson, 1 Bro. C. C. 503; Chitty v. Parker, 2 Ves. jun. 271; Kennell *v. Abbott, 4 Ves. 802; Brown v. Bigg, 7 Ves. 279; Wilson v. Major, 11 Ves. 205; Wright v. Wright, 16 Ves. 188; Maugham v. Mason, 1 Ves. & Beam. 410.
    Taylor, for the appellees,
    mantained that the decree was right. He said, that the testator directed a sale of his real estate and slaves as well as his household furniture, for the specific purpose of raising a fund, in aid of his outstanding debts, for the payment of his debts: if it was not necessary for that purpose, no sale was required. And when he gave his wife specific Legacies, “in addition to what the law allowed her,” having given her by his will nothing but the specific legacies, he referred to the law alone to ascertain what should be allowed her. Now, the law allowed her dower of the real estate, and, subject to debts, a moiety of the slaves for life, and of the other personalty in absolute property.
    
      
      The principal case was cited in Newton v. Poole, 12 Leigh 142.
    
   TUCKER, P.

I am of opinion, that the court below rightly rejected the construction of the testator’s will contended for by. the appellants; the widow being entitled to have her portion of the estate estimated according to its character at the testator’s death, and not otherwise. He never designed, that her share should be estimated as if the whole estate were personalty; thereby enlarging her rights from one third of the real estate for life to one half of its value in absolute property. His intention was, that she should have what the law allowed as her dower in lands, and if with her assent the whole estate should be sold out and out, he intended she should have one third of the proceeds of sale for life. And so of the slaves. Had he designed one half of the proceeds of sale for her, he would have said so in so many words, instead of using expressions, the natural import of which would give her only what the law allowed of his estate, in its existing condition at the time of his death.

*Such seems to me the obvious intention of the testator as declared in this will. And however closely we scan his expressions, the result will be the same. Thus, he gives to the wife certain specific legacies, “in addition to what the law allows her. ’ ’ He does not profess to give her what the law gives, but only something in addition. She does not take her portion then under the will, but under the law. Sow the law cannot give it to her in the landed estate as if it were personalty. If it is to be considered as personalty, it is by virtue of the will, and she would take it, not by gift of the law, but by force of the will. Instead of holding paramount to the will by law, she would hold under the will by bequest; whereas, as has been already said, she clearly holds by law and not by the bequest. And the difference might be very material; since if she took under the will, she would take subject to the debts. In her present condition, too, if she takes money, her husband pockets the whole, but if she takes land, it is at her own disposal. Or, if it be admitted that she had a right to take either land or money, her husband cannot elect to take money to her prejudice; whereas if her rights are only to money, they belong absolutely to him. Pratt v. Taliaferro, 3 Leigh 419.

It has been attempted to maintain the right of the wife to one half the estate, by an argument rested on two propositions; 1. that the whole estate real and personal, including the dower interest, was by the will converted into personalty; and 2. that by the words, “in addition to what the law allows my wife of my estate,” the testator had reference to the conversion of it into personalty, and meant to give her of the proceeds of sale as much as the law would allow her if his whole estate were personal. To say nothing of the gratuitous character of this supposition, and of the inadmissible liberty thus taken with the testator’s words, it is enough to say, that the first proposition, on which *the whole argument rests, is utterly untenable. There was no conversion by the will, either legal or equitable, of so much of the realty as constituted the wife’s third. The whole equitable doctrine of the absolute conversion of land into money, rests upon the jus disponendi. Cujus est dare, ejus est dis-ponere. But where there is no jus dis-ponendi, there can be no equitable conversion by will. Now, here, the husband had no jus disponendi of the dower of his wife. There was, then, no conversion of that portion of his estate. If, indeed, after his death, she had assented to a sale out and out, there might have been a conversion ; yet not by his will, but by her contract; and she would only have had title to the value of her third for life, out of the proceeds of sale. There is, therefore, no foundation for the supposed construction, resting upon the postulate that there was an equitable conversion, out and out, of the whole land into personal estate. In every view of the case, I am satisfied that the construction contended for by the appellants is wrong.

It was suggested in the argument, that the slave Edmund Williams, who was emancipated, was not embraced in the decretal order, directing the estate to be divided, and the widow’s portion laid off. I think this is a mistake. The commissioners are directed to divide the slaves of which the testator died possessed: the slave Edmund Williams was one of these, and, of course, is embraced in the order. If the commissioners, in making the division, should not take him into account, or should assign him to the widow, it will be in her power to except to their report.

Upon the whole, I think there is no error in the decree, and that it should be affirmed.

The other judges concurring, decree affirmed.  