
    David Young and Sarah his wife v. The Surviving Executors of J. M’Intire.
    Devise to widow “one-half of all the personal property,” and subsequent, devise to widow one-half profits of all bis estate for life. Devise to daughter, after widow’s death, profits of all my Z. O. and M. Co. stock, for life; to daughter’s heirs, aall the stock aforesaid." The stock does not pass under the devise of “personal property."
    
    This was a bill in chancery, brought to compel the assignment of thirty-five shares of stock in the Zanesville Canal and Manufacturing Company, which the complainants claim under the will' of John M’lntire, deceased. The bill states that M’lntire in his-will devised to the complainant Sarah one-half of the personal property of which he should die possessed, except his clock, and directed that the personal property should be valued by three men chosen for that purpose by his executors ; and that the will further directed that the said Sarah should make choice of the same if she thought proper, if not, that the whole should be sold and one-half the proceeds paid to her.
    The bill alleged the decease of M’lntire, the proof of the *will, and the qualification of the executors, and their taking upon them the execution of the will, and obtaining possession of' his entire estate. It claimed that the complainant, Sarah, was entitled to one-half of the seventy shares of stock owned by J. MTntire, in the stock of the Zanesville Canal and Manufacturing Company, and prayed a decree that the executors transfer it to-them, the said Sarah having since intermarried with the complainant David.
    
      The answer admitted the will, the devise, and that they took upon, themselves the executorship, and received a large amount of property, and submitted to the court, upon a case stated, whether the complainants were or were not entitled to a transfer of the stock.
    The facts of the case, as agreed by the parties, were as follows: MTntire owned a tract ofland which he agreed to sell to the company for stock. The stock agreed upon as the capital of the company was seventy thousand dollars, tobe divided into one hundred and forty shares, of five' hundred dollars each. Of these shares seventy were subscribed by MTntire, to be paid in the land. The other seventy were subscribed by others, to be paid in money. The agreement was that M’lntire’s shares should draw dividends only upon so much of each as should be actually paid in upon each of the other shares. That so soon as the other shareholders should pay in the one-half of their shares, and give security for the payment of the residue, MTntire should convey to the company the land sold, with the entire privileges of the water. Under this contract the company took possession of the ground, and commenced their works, in the lifetime of MTntire, but did not entitle themselves to a conveyance until long since his death. The conveyance has been made by the executors. The complainant, Sarah, who was the wife of MTntire, agreed to take under the will, and received one-half the personal estate, except this stock, agreeably to the directions of the will.
    The material provisions of- the will are these :
    “ In lieu of my wife’s full dower at law, I give, devise, and bequeath to her, absolutely, the one-half of all the personal property I may dispossessed of, except .my clock, which is not to be sold, but remain in my dwelling house so long as it shall go.” “ All my personal property is first to be valued by three men, chosen by my executors. Then my wife Sarah is to make her choice of the one-half, or should she not take the one-half, the residue is to be sold, and she is to get the money arising from the sale.”
    *The use of the mansion house is then given to his wife, and the executors are authorized to sell certain lands and pay his debts with the proceeds. Then the will proceeds:
    “ After which debts are paid, my executors are to pay to my wife, Sarah, annually during her life, the one-half of the rents, interests, and profits of all my estate, both real and personal.” “ The money arising from the sale of my real and personal estate, after the payment of my debts, as aforesaid, is to bo by my executors vested in stock in the Zanesville Canal and Manufacturing Company.” Some legacies excepted.
    Directions are then given for the sale of real estate, after the death of his wife, and investing the money in canal stock, “As my other money is ordered to be invested.” And the will proceeds:
    “I give and bequeath to my daughter, Amelia M’lntire, at the death of my wife, my mansion-house, with the premises before described, provided she leaves heirs of her body. Also, I give and bequeath to her and the heirs of her body, and their heirs forever, all the rents, issues, interest, and profits of all my Zanesville Canal and Manufacturing Company stock, which are to be paid to her annually, during her life, by the president and directors of said company, on her own personal application and no otherwise. She is not at liberty to sell, under the pain of forfeiture, any part of said stock, nor is the same ever to be liable for the payment of her debts which she may contract, or which her husband, should she marry, may contract. Should she leave an heir, or heirs of her body, then at her death the house aforesaid to be vested in them, in fee simple, and Aim the stock aforesaid, to do with as they may think proper.”
    Silliman, for complainants.
    Goddard, for the executors,
    submitted the question of construction to the court, they only wishing such decision as should protect them in making a disposition of the stock.
   By the Court :

The first clause of the will would doubtless be sufficient to vest the widow with one-half the canal stock, were there no other provisions in the will in direct repugnance to it. The stock is personal property, notwithstanding it is connected in some manner with the realty. But if we decree one-half this stock to the widow, we inevitably defeat what appears to have been the great and leading design and intention of the testator.

That it was not intended to comprehend the canal stock m the bequest of “personal property,” is manifest from almost *every part of the will. In the first place the “personal property ” included is all to be valued by three men, and the widow, upon such valuation, is to take the half. If she does not take it, it is to be sold, and the proceeds paid to her. That it was not intended to subject the canal stock to sale is indisputable, because the proceeds of the personal and real estate are to be invested in canal' stock, and the widow is to receive “ one-half of the rents, issues, interests, and profits of all the estate;" because, too, it is subsequently provided that, after the decease of the widow, the daughter shall receive all the rents, issues, interests, and profits of all the canal stock, and that the heirs of the body of the daughter after her death should have all the stock aforesaid. It is impossible to give the widow half and the daughter all; and we can not reasonably suppose that any such absurd intention was entertained by the testator.

Throughout the whole will a marked distinction is made between the canal stock and ordinary personal property. The intention to extend the amount, and to preserve it for the use of the wife and daughter, during their lives, is clear and manifest. And this intention must be defeated if the canal stock was included in the first devise to the wife, as part of the personal property to be divided.

It is urged that the canal stock, being legally personal property, the devise of it is in express terms, and an express bequest is not to be defeated by implication. But whether is that devise more express which is supposed to comprehend the stock in the general term personal property, or that which specifically names the stock and bequeaths the profits of all, the whole, to the daughter ? Surely the terms of the latter devise are at least as specific as those of the former. There is no implication or inference necessary to understand them. And the intention to give them effect is too clear to be mistaken or disputed. The widow claims upon general terms, and seeks an interpretation contrary to the evident intention. The daughter claims upon a bequest in express terms of the specific subject — and her claim comports with the whole intention. If the two bequests be absolutely repugnant, the latter must prevail. If they are not so repugnant, they must be reconciled by deciding that the widow took a life estate in the profits of one-half the stock, and the daughter a life ^estate in the profits of the whole, subject to the widow’s right in half — the whole remainder to the heirs of the body of the daughter, or to the charitable uses. In either cases the complainants must fail.

Bill dismissed.  