McCay, Judge.
1. The construction of this will is simply a question of what the testator meant by the dispositions he has made. Did he intend the various legatees should take the property he has specially pointed out as to be taken by them, at all events, no matter what his estate should be found to be worth ? Or did he intend that his property should be equally divided between his children, each of them taking the specific property mentioned at its value in that division ? I do not see what the rules of law — as to the specific and general legacies standing on a different footing as to abatement — have to do with it. There is no question but that if there be a deficiency of assets the general legacies abate before the specific. But, without doubt, a man may, by his will, provide that specific legacies shall abate before general ones. lie may hamper a specific legacy with any limitations or contingencies he pleases, provided such contingencies are not illegal. And surely it is not illegal for a man to provide in his will that specific legacies shall abate equally with or even before general ones. Clearly a man might give a legacy of a particular form to A, provided his estate, after paying his debts, should have enough to give each of his children a certain amount. The whole question, therefore, is what did the testator mean? This, it seems to me, is very clear. He provides that, after his debts are paid, his estate shall be divided into nine equal shares or parts, each of his eight children to take a share or pairt, and his three [351] youngest daughters to take the ninth share between them extra. He then, item by item, mentions the advancements to be charged against each child, and fixes the value of each advancement. As to nearly all of his children he mentions certain specific property, which he wishes them severally to take as part of their several shares, and he either fixes a value on said property himself or says they shall take it at a valuation to be fixed in a way he points out. The clause of the will now in dispute provides that his son Iverson shall take as part of Ms share or portion a negro man, Peter, at $1,200 00 ; another man, Green, at a fair valuation, and that he take as his choice lot of land number one hundred and seventy-nine, at $1,000 00; or lots one hundred and seventy-nine, one hundred and sixty-five and one hundred and sixty-six, at a fair valuation. At the time this will wat made it is probably true that the testator had a plenty of property to insure that each of his children’s shares would be enough to allow such child to take as part of his share the specific property mentioned, and no confusion or irregularity ensue. But, by the result of the war, his property, largely in slaves, is considerably lessened in quantity and value, and is mostly in land, so that if his children, and especially Iverson, take the land mentioned it will, at its value, be far more than his share. As I have said, the only question is, what the testator meant. 1st. He emphatically directs his property to be divided into nine equal shares, giving to each child (eight) one share and to his three daughters the other extra, and in every item of his will he labors to show that his great leading idea is to do equal justice by dividing his property equally, with the single exception that his three daughters are to have one-third of one-ninth of the whole more than the others. He goes into detail as to the advancements, and shows in every conceivable way that his intent was to give his children equal shares, charging each with the amount already received. But it is plain, that subject to this great leading idea, he desired certain of his children to have certain specific property, and he expresses this idea as to each one by saying that he or she shall take as part [352] of his w her portion the specific property mentioned at a. specified value, either fixed by the testator himself, or to be fixed by a valuation. In this special clause he says Iverson is to take this lot of land one hundred and seventy-nine at $1,000,, or one hundred and seventy-nine, one hundred and sixty-five, and one hundred and sixty-six, at a valuation, as a part of his share. He is not to take it absolutely, but as part of share, and at a valuation. The plaintiff in error would reject this part of the testator’s intent altogether. He sees nothing in the direction that the whole shall be divided into nine- equal shares; he sees nothing in the regular charge against each share of the advancements; he sees nothing in the provision of the payment of his debts before this equal division shares is made; he sees nothing in the provision that the land mentioned is to be taken at a valuation, and nothing' in the provision that it is to be taken as part of Ms share. His eye is completely filled with the fact, that the testator intends Iverson to have certain specific lands, forgetting the qualifications added, to-wit: that the debts are to be paid, then an equal division made of what is left, in nine portions; then each portion to be charged with advancements, and then that the property specifically mentioned as to- be taken by particular divisees, to be taken at a valuation and as part of his share,
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McCay, Judge.
1. The construction of this will is simply a question of what the testator meant by the dispositions he has made. Did he intend the various legatees should take the property he has specially pointed out as to be taken by them, at all events, no matter what his estate should be found to be worth ? Or did he intend that his property should be equally divided between his children, each of them taking the specific property mentioned at its value in that division ? I do not see what the rules of law — as to the specific and general legacies standing on a different footing as to abatement — have to do with it. There is no question but that if there be a deficiency of assets the general legacies abate before the specific. But, without doubt, a man may, by his will, provide that specific legacies shall abate before general ones. lie may hamper a specific legacy with any limitations or contingencies he pleases, provided such contingencies are not illegal. And surely it is not illegal for a man to provide in his will that specific legacies shall abate equally with or even before general ones. Clearly a man might give a legacy of a particular form to A, provided his estate, after paying his debts, should have enough to give each of his children a certain amount. The whole question, therefore, is what did the testator mean? This, it seems to me, is very clear. He provides that, after his debts are paid, his estate shall be divided into nine equal shares or parts, each of his eight children to take a share or pairt, and his three [351] youngest daughters to take the ninth share between them extra. He then, item by item, mentions the advancements to be charged against each child, and fixes the value of each advancement. As to nearly all of his children he mentions certain specific property, which he wishes them severally to take as part of their several shares, and he either fixes a value on said property himself or says they shall take it at a valuation to be fixed in a way he points out. The clause of the will now in dispute provides that his son Iverson shall take as part of Ms share or portion a negro man, Peter, at $1,200 00 ; another man, Green, at a fair valuation, and that he take as his choice lot of land number one hundred and seventy-nine, at $1,000 00; or lots one hundred and seventy-nine, one hundred and sixty-five and one hundred and sixty-six, at a fair valuation. At the time this will wat made it is probably true that the testator had a plenty of property to insure that each of his children’s shares would be enough to allow such child to take as part of his share the specific property mentioned, and no confusion or irregularity ensue. But, by the result of the war, his property, largely in slaves, is considerably lessened in quantity and value, and is mostly in land, so that if his children, and especially Iverson, take the land mentioned it will, at its value, be far more than his share. As I have said, the only question is, what the testator meant. 1st. He emphatically directs his property to be divided into nine equal shares, giving to each child (eight) one share and to his three daughters the other extra, and in every item of his will he labors to show that his great leading idea is to do equal justice by dividing his property equally, with the single exception that his three daughters are to have one-third of one-ninth of the whole more than the others. He goes into detail as to the advancements, and shows in every conceivable way that his intent was to give his children equal shares, charging each with the amount already received. But it is plain, that subject to this great leading idea, he desired certain of his children to have certain specific property, and he expresses this idea as to each one by saying that he or she shall take as part [352] of his w her portion the specific property mentioned at a. specified value, either fixed by the testator himself, or to be fixed by a valuation. In this special clause he says Iverson is to take this lot of land one hundred and seventy-nine at $1,000,, or one hundred and seventy-nine, one hundred and sixty-five, and one hundred and sixty-six, at a valuation, as a part of his share. He is not to take it absolutely, but as part of share, and at a valuation. The plaintiff in error would reject this part of the testator’s intent altogether. He sees nothing in the direction that the whole shall be divided into nine- equal shares; he sees nothing in the regular charge against each share of the advancements; he sees nothing in the provision of the payment of his debts before this equal division shares is made; he sees nothing in the provision that the land mentioned is to be taken at a valuation, and nothing' in the provision that it is to be taken as part of Ms share. His eye is completely filled with the fact, that the testator intends Iverson to have certain specific lands, forgetting the qualifications added, to-wit: that the debts are to be paid, then an equal division made of what is left, in nine portions; then each portion to be charged with advancements, and then that the property specifically mentioned as to- be taken by particular divisees, to be taken at a valuation and as part of his share,
2. He is to taire it, says the plaintiff in error, as a specific legacy. It is not to abate for debts. It is not to be charged with advancements, it is to be taken even if it be more than his share; it is to- be taken, whatever value it may have. Every other thing thought of, provided for, and looked to by the testator, is to be swallowed up in the single thought of a specific legacy. I do not think this. It is clear to me, that the testator intended Iverson to take this land, subject to his lather’s debts, subject to the advancements, and, above all, subject to the great thought and purpose of the will, as part of his equal share. If that share should exceed the value, then well; if not, he was not to take it at all events, but subject to the provision of equality. Had the testator intended to give absolute specific legacies, he would have given them in terms. He would have [353] given them distinctly; and if he intended that, in consequence of these specific gifts, their share of the residue should be less, he would have said the balance is to be equally divided into nine shares — each person taking a specific legacy to have a share as much less than the others as his specific legacy is worth. But he does not do this. He provides that the whole, after paying the debts, is to be equally divided into nine shares; he directs each share to be lessened by the advancements, and that each legatee shall take the specific property mentioned as part of his share, at a valuation. To divide this property on the basis proposed, would be, in my judgment, right in the teeth of this will. The will provides for equality; the proposition is to make it unequal. The will provides that he shall take the specific property as part of his share, at a valuation; the proposition is that he shall take it independently of his share, and independently of its value, unless his share is more than the value. This, in my judgment, would be contrary to the clear, positive directions of the will, and grossly unjust besides. Nor is there the least trouble in carrying out the will as the testator intended. He intended each to take certain specific property, at a fixed valuation, as part of his share. If his share, after paying the debts, and accounting for advancements, was more than the specific property at its value, each was to take that much less. If the share was less, he was to pay to the others the difference. Nothing is. more common in divisions than this. It is very often not desirable to sell property for a division, and it is common for the dividers to give to one a specific article, charging it with a sum to be paid. That was clearly the intent of the testator in this case. That intent was not illegal, unwise, or unjust, and it ought to be carried into effect.
3. When this case was before this Court before, the only matter was between the executor and this particular legatee. They were the only parties here, and the question was simply as to the value and assent of the executor. The bill has now been amended, the assent denied, and all the parties are before the Court. The whole estate is to be divided, and the rights [354] of each legatee, not only as to the executor, but as to each other, are to be settled by the decree. The jury has 'found there wa.s no assent, and the proper construction of the will is the real issue.
5. We should not have given the direction to the jury the Judge gave, as to the mesne profits or interest, but the counsel for the plaintiff in error, in his argument, distinctly waives that ground of error, and if he is content with it, we have no desire to interfere. It is clear to us, that the will does not intend any of these legacies to be absolute, but that they are all to be taken only as part of the share of the taker, and subject to the diminution that share may receive from the payment of debts, or from the loss of the testator’s property, without fault of the executor.
Judgment affirmed.
Montgomery, Judge, concurred, but furnished no opinion.