
    AMOS T. JONES AND OTHERS, by Guardian, vs. LUNSFORD A. PASCHALL, Adm’r, &c.
    A. devised, among oilier things, as follows: “It is further my will and desire that all my children, those of my first wife, to-wit, B. C. and D. and those of my second, wife, to-wit, E. and F. shall be equally provided tor in property and their estates upon their arriving at full age respectively, to be as nearly equal as may be; and whereas under the will of Amos Gooch, dec’d, the three children of my first wife will be at my death entitled to the tract of land on which I now live and which is valuable, it is my will and desire that my executors select three good men, to value the said land on which 1 live, and then to value of my slaves, remaining after my wife’s share is set off, a sufficient number to be equal in value to the said land, and that said slaves so valued be set apart by my executors, and it is ray will and desire that they belong absolutely to my two children E. and F. and that they be kept together undivided until the said E. and F. shall arrive at full age and then be equally divided between them”. The testator, in a previous part of his will, had given to E. and F. the remainder in two tracts of land, after the death of his widow; and the only other devise in his will to any of his children was, that the rest of his negroes and all the residue of his estate should be equally divided among all his children, after taking out what he gave his widow. Held that, under the clause recited, the children E. and E. took absolutely the negroes so directed to be valued and allotted to them, independent of what they were entitled to under the other clauses of the will, notwithstanding they would thus obtain a larger portion than the other children.
    This was a bill filed at the Spring Term, 1840, of Gran-ville Courfof Equity. The bill alleged that Thomas Jones 
      died in 1837, seized jand possessed of a large real and al estate, having first duly made his last wall and testament, sufficient to pass lands, which was duly proved at Term of Granville County Court — that, the executors therein named having refused to qualify, administration with the will annexed was duly granted to the defendant, Lulisford A. Paschall, who received into his possession all the personal property of the testator — that, among other devises in the said will, was the following: “It is further my. will and desire that all my children, those of my first wife, to-wit, Amos T. Jones, Ruffin Jones and Duffy Jones, and those of my second wife, to-wit, Loton Jones and Thomas Jones, shall he equally provided for in property and their estates upon their arriving at full age, respectively, be as nearly equal as maybe; and whereas under the will of Amos Gooch, dec’d, the three children of my first wife will be at my death entitl ed to the tract of land on which I now live and Which is valuable; it is my will and desire that my executors select three good men to value the said land on which I live and then to value of my slaves, remaining after my wife’s share is set off, a sufficient number to be equal in value to the said land, and that said slaves so valued be set apart by my executors, and it.is my will and desire that they belong absolutely to ifiy two children,Loton andThomas,and that theybekept together undivided until the said Loton or Thomas shall arrive at full age, and then be equally divided between them” ■ — 'that the complainants Were the three children of the testator mentioned in the said will by the first marriage, and two of the defendants were the children therein mentioned of the second marriage — that the true'construction of the clause referred to was, not that the two defendants, Loton and Thomas, should have all the negroes so- valued, but that the land and the negroes should be valued as mentioned in the said clause, the value of the land and the negroes added together and divided into five equal parts, and, so far as the negroes were concerned, that two of those parts should be given to Loton and Thomas, and the other three parts to the complainants, according to which mode of division, the complainants retaining their land, the children would all be equal in property as intended by the testator, as far as it concerns that clause. The bill then stated that the administrator had put a different construction on this clause, and refused to settle, and prayed an account, &c.
    It appeared from the will, which was annexed to this bill and made a part of it, that in a previous clause the testator had given to the defendants, Loton and Thomas, the remainder in two tracts of land after the death of his wife, and that, excluding the clause in dispute, the only legacy to the three children by the first marriage was in the residuary clause, where he gives to each of his five children the rest of his negroes and all the residue of his estate, to be equally divided among them. The answers of the defendants admitted the facts stated in-the bill. The administrator stated that he was ready to account and pay over, but could not do so with safety, until the court had placed the proper construction on the will, and Loton and Thomas, the other defendants, submitted to whatever decision the court might make, claiming the negroes in question, however in opposition to the plaintiffs.
    At Spring Term, 1841, the cause was set lor hearing, and transmitted to the Supreme Court.
    No counsel appeared for either party in this court.
   Gaston, J.

It is difficult, perhaps impracticable, to give to the section of the will, which we are called upon to expound, any construction, which may not contravene the words of one or other part of it. The first clause: “It is further my will and desire that all of my children, those of my first wife, to wit, Amos Jones, Ruffin Jones and Duffy Jones, and those of my second wife, to wit, Loton Jones and Thomas Jones, shall be equally provided for in property, and their estates upon their arriving at full age respectively, be asnearlyequal as may be” per se obviously imports an intention, on the part of the testator, of individual equality: that each child shall boas nearly equal, as practicable, in point of property. But the latter clause of the section declares in terms, which will admit of no other construction, that the property contemplated in that section shall be so valued and allotted, that the two children of the second wife shall receive as much as shall be equal in value to the whole of that, which at his death will accrue to the three children of the first wife. The equality thereby effected is an equality between the classes, not between the individuals. The words are as explicit as possible: “ and whereas, under the will of Amos Gooch, deceased, the three children of my first wife will be at my death entitled to the tract of land on which I now live and which is valuable, it is my will and desire that my executors select three good men to value the said land on which I live, and then to value of my slaves (remaining after my wife’s share is set off) a sufficient number to be equal in value to the said land, and that said slaves so valued be set apart by my executors, and it is my will and desire that they belong absolutely to my two children, Loton and Thomas, and that they be kept together undivided until the said Loton and Thomas shall arrive at full age, then be equally divided between them.” In this conflict — or apparent conflict — between the first and last clauses of this section, we hold it proper to assign to the latter the controllinginfluence; and this for several reasons. In the first place, this is the enacting or disposing part of the section. Nothing is done —no property is given or allotted, in the section, until we come to this clause. All the preceding parts do but constitute the proem or recital introductory to what is finally directed to be given or allotted in the concluding clause. The testator declares a wish or desire of equality in properly between his children, then states a fact, which may thwart hi® purpose, unless he make a special provision to meet the case;; and finally proceeds to declare directly and specifically what disposition shall be made of his property, in order to effect his purpose. Now it is a rule of good sense, as well ad of law, that a recital or preamble, however important, as explanatory of an ambiguous enactment or disposition, which it introduces, cannot be permitted to overrule the enactment or disposition, if it is free from ambiguity. It is a key to unlock the cabinet, where the will of him, who gives the law in the prescribed ease, is to be found; but it is not the cabinet, in which that will is deposited. In the next place, the language of the final or disposing clause is more unequivocal and unyielding than that in the introductory clause. The former can admit of but one interpretation. Whatever is 4 given by it, is given by name to his two children, Loton and Thomas, absolutely. The gift is of as many negroes as shall be equal in value to the value of the tract of land whereon he then resided; and he expressly recognizes that this tract is, at his death, to be enjoyed by “ the three children of his former wife.” The two, Loton and Thomas, are to have as much as the other three. By no gloss — by nothing less than an explicit declaration to the contrary, and that made under such circumstances as to entitle it to higher reverence, and therefore to be regarded as annulling, to that extent, the precise disposition actually made in this clause, can it be held that Loton and Thomas shall receive but two-thirds of the value of the land, which is to be enjoyed by the other three. Now, while it is admitted, that the more obvious construction of the first or introductory clause is of an intended equality between the children as individuals— its language is not absolutely repugnant to the inference of an intended equality between them as classes — that is to say, “ the children of his first wife, to wit, Amos Jones, Ruffin Jones and Duffy Jones,” on the one side, and “ those of his second wife, to wit, Loton Jones and Thomas Jones” of the other. Moreover — although the declaration of the testator’s will for a certain equality between his children is made,with direct reference to the disposition, contained in that section only, it is, nevertheless, a declaration of an existing motive, at the moment of making his will. As such, it must have had some influence upon all the dispositions therein contained. Now, although these children are constituted residuary legatees and devisees, and therefore take equal shares of whatever is not specifically given away, there are special and exclusive gifts to the two children, Lo-ton aud Thomas, which cannot be controlled by the words in this clause, and which demonstrate, that, at the time of making the will, the testator did not intend an exact individual equality — that he was not under the influence of that motive — and that, therefore, in describing his general purpose of equality in the clause in question, it was a purpose. which would permit each of the two children, Loton and Thomas, to have a larger portion of property than either of his three elder children. The special and exclusive gills, to which we refer and for which there are no compensating gifts to his other children, are of the two tracts on Green’s Creek, subject to the widow’s life estate, with a special appropriation of five hundred dollars to their improvement. These certainly Loton and Thomas do take — and, by taking these, they are, by the act of the testator, made richer than either of their brothers. And finally — if the first clause •could be deemed entirely dispositive, and as completely certain as the last — and they cannot be reconciled to each other by any exposition — then the former must give way to the latter, upon the principle that in a will the last declaration of a testator’s purpose must prevail. It must be declared, therefore, that the construction contended for by the infant defendants, Loton and Thomas Jones, is the true construction of this will.

Pee Cukiam, Declared accordingly.  