
    Read v. Payne.
    [Tuesday, May 4th, 1802.]
    Wills — Ex Parte Affidavits of Matters Not Appearing in —Effect.—An ex parte affidavit of a witness to the will, stating- matters not appearing in the will, is no evidence; and ought not to be recorded.
    Same — Residuary Devise. — What passes under a residuary devise.
    Jesse Payne, by his last will, after some specific devises of land to his sons, devised as follows: “I give and bequeath unto my beloved wife Erances Payne, during her natural life, the following eight negroes, Dick, Gerald, Hannah and her child, Sarah Truelove and her two children, Bett and Harry and Joe.” He after-wards gives seventeen other negroes to his two sons; and then devises as follows: “All the rest of my estate I leave at the time of my death, I desire may be equally divided between my beloved wife Prances Payne, and my dear sons George Morton Payne and Richard Baylor Payne, and their heirs forever.” *At the time of proving the will, one of the witnesses deposed, that the testator “desired that the eight negro slaves left to his widow for her life, and their increase, should be equally divided between his two sons, George Morton Payne, and Richard Baylor Payne, after the decease of his said widow Prances; and further, he, the witness, wrote the will, and that the reason this disposition was not mentioned in the will was, that the testator appeared to be going out of his senses, and time would not permit to insert it.” The question was, whether the remainder, after the death of the wife, in the said eight negroes devised to her, were part of the residuum, or belonging to the sons, in exclusion of the representatives of the wife? The Court of Chancery decided in favour of the sons, and Read, who had married the widow, appealed to this Court.
    Randolph, for the appellant.
    The residuary clause clearly passed the reversion in the slaves given to the testator’s wife for life. The word estate, is genus generalissimum, and passes the whole interest. 19 Vin. Abr. 222; Co. Eit. 345. If this construction be not adopted, then the reversion will not .pass, although the testator has declared his intention to dispose of the whole of his estate. In Cole v. Clayborn, 1 Wash. 262, an estate for life, in slaves, was given with a general residuary clause of the remainder of his estate, and it was held that the residuary clause carried the reversion, and this is confirmed by the doctrine in Ken-non v. M’Robertset ux., 1 Wash. 96. That the tenant for life, in the present case, was one of the devisees, will make no difference; because, still the residuary clause is broad enough to embrace the reversion. The affidavit of the subscribing witness will not help the appellee, as it was ex parte, and made when those interested were not present to cross-examine. Besides, if regularly taken, it would be inadmissible to destroy the effect of the words of the will. Pow. on Dev. 518. Which clearly ^proves that parol evidence cannot be received in a case like this.
    Nicholas, contra.
    The word estate may be confined to the subject of the devise, and does not necessarily, in all cases, include the interest. It is, therefore, an equivocal expression, and, according to Mr. Randolph’s own book, Pow. on Dev., may be explained by parol evidence. Besides, it is intended to supply a clause which was accidentally left out. It appears, from the general complexion of the bill, answer and will, that there was other estate to satisfy the residuary clause ; and then it falls within the influence of Kennon v. M’Roberts et ux., 1 Wash. 96: Which expressly takes that distinction; for, the residuary clause there was held to be satisfied by the other property. This is confirmed by the doctrine in Cole v. Clay-born, 1 Wash. 262: Which, rightly understood, is a case in our favour. The devise is of the property he should leave at his death; which means not an ideal reversion, but such as was susceptible of a division. This construction is to be preferred, because it is consistent with the disposition made by the testator of the rest of his slaves; and, because the whole complexion of the will shews, that the testator only intended a provision for his wife during her life, and that his children should have the residue. The affidavit having been made ex parte, will make no difference; as the witness is dead and could not be examined.
    Randolph, in reply.
    The reversion is as capable of division as the slaves themselves: Of course, there is no reason for excluding it from the operation of the residuary clause. Besides, there is no proof in the record that there was any other property to satisfy the residuary devise. None of the cases prove, that parol evidence may be received in such a case as this; or, that a new clause may be added to the will, by evidence.
    Cur. adv. vult.
   *PER CUR.

“The Court is of opinion, that the information, or additional testimony of Joseph Robinson, who was a witness to the will of Jesse Payne, the testator in the bill named, given at the time he proved the said will in the County Court of Goochland, without any notice thereof to the parties interested in the estate of the testator, in order to prove the desires of the testator, and to explain the written will exhibited in Court for proof only, ought not to have been admitted, or registered, with the probate of the said testament, or read in evidence in this cause, without the consent of the parties ; and this Court, being of opinion that the appellant is, under the residuary devise in the said will, entitled, in right of his late wife Prances, who was widow and one of the residuary legatees of the testator, Jesse Payne, to one-third part of the eight slaves devised by the will of the said Jesse, to the said Prances for life, and to one third of their increase, with their profits since the death of the said Prances; and, that so much of the decree aforesaid, as directs the appellant to deliver up to the appellee more than two thirds of the said slaves, with their increase, and to account for their profits, is erroneous; doth decree and order, that so much of the said decree as is herein before stated to be erroneous, be reversed and annulled-, and that the residue thereof be affirmed.”  