
    JOHN J. LOCKHART & AL. vs. JOSEPH J. BELL & AL.
    A testator, after making provision for the payment of his debts, supposing they were much larger than they were found to be, and after devising and bequeathing lands and personal property to his widow and three sons and a grandson, giving the largest portion to his two youngest sons, devised and bequeathed to these two sons B. F. and J. J.ali the residue of bis real estate, including the land and plantation lent to his wife, to them or the survivor of them, their or his heirs. He then gives to his wife and bis said two sons all the rest of his negroes. Pie then directs as follows, “It is my will and desire, that, if the fund set apart for the payment of my debts, that is, the debts due to me, and the sales of all the perishable estate, • shall not be sufficient, then my executors shall sell such of my slaves as shall be necessary ; and all of the devisees shall contribute In proportion to what they may receive under this will; and for the purpose of educating and maintaining my said two sons, provided my estate shall prove to be indebted to a greater amount than may be supposed, it is my will and desire that my executors sell personal property to educate my said sons, either before or after a division ; and the devisees under this will to contribute in like manner.” There was no direct, general residuary clause of the personalty.
    
      Held, that the expense of educating the two younger sons was, in the first instance, a charge upon the residue of the estate, and if any thing remain of such residue, after the payment of the defats and such expense, it must be divided among the widow and next of kin of the testator, as in caso of intestacy.
    Cause removed from the Court of Equity of Northampton County, at ihe Spring Term 1848.
    William B. Lockhart, of Northampton County, died in January 1S41. leaving a widow, Sally, and a son John J. Lockhart, of full age and residing in Alabama, and two other infant sons Benjamin F. and Joseph J., and also a grand-child, William F. Bell, who was the son of Ann E. Bell, a deceased daughter of the testator. That was also the state of the testator’s family, when he made his will on the 36th of December 1839, whereby he devised and bequeathed as follows:
    • “First: For the payment of my debts, I will that my executors sell all the surplus crops, standing, growing, or gathered, and the surplus stocks of mules, horses, cattle, sheep and hogs, plantation and farming utensils, and all other articles and things, except as is herein after excepted and disposed of; and also that all debts due me be applied to the same purpose; and, if the fund set apart ns above shall prove inadequate for that purpose, then to sell such part of the articles excepted, as they may think proper, by and with the consent of my wife, so as to leave her a reasonable portion oí corn, fodder, pork, and other articles necessary for a year’s support for herself and family, and a portion of stock of cattle, horses, mules, hogs and sheep, to commence fanning and raising a stock.
    “Second : I lend to my wife Sally the land and plantation whereon I reside during her life time, and I give her as much provisions as yyill.serve her for one year, including corn, wheat or flour, fodder, oats, and pork, and my carriage and horses, which articles form the exception in the preceding clause : provided that she will not charge my sons Benjamin F. and Joseph J. with- board during their temporary or necessary stay on the said plantation with her : and as a farther exception referred to in the first clause of this will, it is my desire, that my family pictures, clock, secretary, side board, tables and rounds, maps, and library, and such other articles'of furniture as my-wife may think proper to reserve, regard being had by her and my executors to the situation of my estate as to its indebtedness, form, a part;,
    “Thirdly: I give unto my said ' wife my tract of land called Gee’s, to her and her heirs: thinking that if she does not choose to cultivate it, she will permit Joseph' J. Bell to do so until he shall form other connexions, and then permit'him to cultivate it for the benefit of my grandson William F. Bell, and at or before her death give or convey the same to my said grandson, with a proviso that in the event of his death, before coming of age or marrying, the said land shall vest in my two sons Benjamin F. and Joseph J. or the survivor of them, in fee. Provided, however, that the above suggestions be construed not as obligatory or in any way to influence her in her free will to make what disposition of the same she may judge proper or in any way to disparage her fee simple estate.”
    By a fifth clause the testator gave a certain plantation and slaves, stocks and crops thereon to his son-in-law Joseph J. Bell, until the grandson William T. Bell should come of age and then to the grandson ; and, if the said William F. should die under age, then to the said Joseph J. Bell, until he should thereafter die or marry, with remainder to the testator's sons Benjamin F. and Joseph J. or the survivor.
    By a sixth clause the testator gave certain real and personal estates in Alabama to his son John J., with limitations over, in the event of the said John J’s. dying without leaving children, &c., to the wife of John J. for her life and then to the two sons Benjamin F. and Joseph J. or the survivor of them. The testator then adds these words in that clause ; “Provided, nevertheless, that, inasmuch as the said estate added to the money I have paid for my said son John J. is more than his rateable proportion of my estate, I charge upon the estate the sum of five thousand dollars ; three thousand dollars to be paid to my son Joseph J. in six annual payments, and the other two thousand to be paid to my son Benjamin F. in four annual payments, to commence twelve months after my death.”
    In the two next clauses dispositions are made to the wife and the son John Js which are' not material to this case. Then follows, ninthly, a devise to the two sons Benjamin F. and Joseph J. of “all the residue of my real estate, including the land and plantation lent to my wife, to them or the survivor of them, their or his heirs.”
    “Tenth : I give to my wife and my two sons Benjamin F. and Joseph J. all the rest of my negroes: but those which may be allotted to my said sons not to be divided until my son Benjamin F. shall arrive to twenty-one or marry.
    “Eleventh; It is my will and desire that the said negroes which may be allotted to my sons be kept on my Dean’s plantation” (being a part of the land devised to them,) “and a sufficiency of mules, horses, cattle, sheep, and hogs, corn, fodder, oats, wheat, and farming utensils to keep up the plantation for the benefit of my said sons. Although it is my earnest wish that the plantation may be kept up as above, I leave it at the discretion of my executors, after advising with my wife, to do so or not, having a view to the situation of my estate, as regards indebtedness, and to the means of affording my sons a good education.
    “Twelfth : It is my will and desire that, if the fund set apart for the payment of my debts, that is, the debts due to me, and the sales of all the perishable estate, shall not be sufficient, then my executors shall sell such of my slaves as shall be necessary : and all of the devisees shall contribute in proportion to what they may receive under this will; and for the purpose of educating and maintaining my said two sons, provided my estate shall prove to be indebted t.o a greater amount than may be supposed, it is my will and desire that my executors sell personal property to educate my said sons, either before or after a division : and the devisees under this will to contribute in like manner. And to that end I charge the same as a lien on all such devises in real or personal estate, except on the devise to my son John James,” .
    
      “Thirteenth: It is nay will that nay wife keep my grandson William T. Bell with her, at the expense of my estate, until his father may think proper to send him to school; and I also desire Joseph J. Bell to continue to live with my wife, if he thinks proper, as long as he remains single.”
    By a codicil without date, the testator directed a small place he had in Halifax to be kept as a summer retreat for his family, as long as any of them should think proper to use it as such, but afterwards to be sold for the benefit of his two sons Benjamin F. and Joseph J.
    The bill was filed in 184S by the widow, the son John James and the grandson William F. Bell, against the executors and the two younger sons Benjamin and Joseph, and prays for an account, and that the residue of the personal estate, after the payment of the debts and satisfying the specific legacies, may be. declared to be undisposed of by the will and distributed among the widow and next of kin. It appears by the pleadings, that, when the testator made his will, it was probable, a debt of three or four thousand dollars, which was owing to him, might be lost by reason of the insolvency of the debtor, and also that he might he forced to pay a considerable debt as surety for another person : but that it so turned out, that the debt to the testator has been’ collected ; and that the other debt was paid by the principal : and, in consequence thereof, there remains a surplus of four or five thousand dollars, after paying all the debts and the expenses of the administration, and supplying to Mrs. Lockhart all the stocks, crops, provisions, furniture and other things given to her specifically, and after stocking the Deans plantation for the two younger sons, as directed by the will. On the part oí the defendants it is insisted, that the surplus belongs exclusively to the two sons Benjamin' F. and Joseph J. or, at the least, that they are tobe educated out of it and maintained during the period of their education. . '
    
      Bragg, for the plaintiffs.
    
      B. F. Moore and W. N. FI. Smith, for the defendants'.
   Ruffin, C. J.

It does not appear to the Court, that the younger sons are entitled to the surplus of the personal estate absolutely. The residue of the real estate and the residue of the slaves are given away by distinct clauses* But there is no general residuary disposition of the personalty at large, after the payment of debts, charges and legacies: and any surplus, not disposed of, goes of course to those entitled under the statute’ of distributions. It seems highly probable from the face of the will, that the testator did not expect any surplus, or very little, and he may not have considered it worth giving away. But a residue is always more or less uncertain, and the amount of it can afford but a feeble, inference of an intention, that this or that person should have it. Here, indeed, it was said, that the general scheme of the will shows a preference for tht3se two sons, after having made a provision for the eldest son; and therefore the testator must be taken to have intended, they should have the surplus, if there should be any, and not merely be educated out of it. But those considerations cannot have that effect. For, the large bounties to the younger sons — if out of due proportion with the estate — may have induced the testator to give them no more, instead of raising a presumption that his will was, that they should succeed to all that should be left. Besides, the argument is inconsistent with itself, since the charging of their education upon the residue implies, that the sons were not to take the residue absolutely. At all events, whatever conjectures may be formed as to the desires of a testator, and as to what he would have put in his will, if it had occurred to him, yet the will cannot be construed, as if it had a clause expressive of the supposed desire, but must be taken as it is. Here there is no residuary clause, under which the sons, or any one, can claim : and therefore what may remain after deducting the debts and charges must be declared to belong to the widow and next of kin.

But the Court is also of opinion, that the education and maintenance of the two younger sons is in the first instance charged on the residue, if there should be enough to defray the expense after payment of the debts. After directing, in the beginning of the will, that the money due him and all his personal property (except his slaves and such other things as should be afterwards specifically bequeathed) should be the fund for the payment of his debts, the testator in the 11th clause expresses a strong desire, that as much of the stocks of horses, mules and cattle, provisions'and farming tools should be reserved thereon, as would be sufficient to keep up a certain plantation, which he gave to the two sons, and work it for their benefit. Nevertheless, he would not order it peremptorily, but left it to the discretion of his executors. Yet it was not an arbitrary discretion, nor one to be exercised upon'their general judgment of what might be best tor the sons. On the contrary, the testator plainly says, they are to stock and work the plantation, if it can be done consistently with two things, that is, with a view, first, to the indebtedness of the estate, and, secondly, to the means of affording the sons a good education. That implies the intention, that the fund was to be provided for the education before the stock reserved for the plantation should be put on it, and imports a prior charge of the education on the general residue. But it was argued for the plain» tiff, that the testator might have meant there, that the education was to be a charge on the residue, in case the pr'ofits of their own property should not be sufficient for that, purpose ; and that he may have expected they would, if the Deans plantation should be worked for them, and then it would be reasonable they should not look to the residue. The will might have been more explicit on that point. But there does not seetn to be enough to import the supposed restriction on the provision for the education. The argument yields, that it was certainly the intention of the testator, that his younger sons should be well educated at all events, and that the expense was to be paid out of his estate in some events. But it supposes an exception to have been intended, when the profits of their property should be sufficient for the purpose. Now, that exception is not declared in the will: and it could not be interpolated on conjecture, even if the question stood on the 11th clause alone. But the 12th clause furnishes further and convincing proof, that the testator intended them to be educated independent of their own property, except as it might contribute pro rata. For, the testator then again connects the debts and education, and provides, that, if the money due to him and the sales of his perishable estate should not be sufficient to pay the debts, then negroes were to be sold, and each legatee contribute in proportion to the value of his or her donations ; and then immediately follows precisely a similar provision for raising a fund “lor the purpose of educating and maintaining my said two sons, provided my estate shall prove to be indebted to a greater amount than supposed.” The charge on the estates given to the younger sons is only in common with that on the other gifts, and, does not attach to either gift, until the fund constituting the residue should be exhausted. Consequently, as they are to be well educated at all events, the residue is the proper fund to be applied in the first instance for that purpose.

There must, therefore, be a reference to ascertain the residue, and what part of it ought to be set apart for the education of the younger sonsj and. their maintenance during the periods of their education. The costs of the suit will be paid out of the fund in the hands of the executors.

Per Curiam.

Decree accordingly.  