Dickerson, J.
This is a bill in equity brought by the complainant, widow of Thomas Lord, formerly of Kennebunk, deceased, against the defendants as executors of the will of said Lord. The bill alleges that after the executors had paid and made over to the complainant all that was specifically devised and bequeathed to her, and all the other legacies, and debts of the testator and the funeral charges and expenses of administration, there remained in their hands a large amount of personal estate not specifically disposed of by the will. The complainant claims that the clause in the testator’s will giving “all the residue” of his property to his “legal heirs,” is void as a testamentary bequest,^ and that said “residue” can only be legally distributed in accordance with the provisions of the statutes by which she is entitled to have and receive one-half of all the personal estate of said “residue,” and, further, that if said residuary clause is valid she is entitled to have aiid receive one-half of all the personal estate of the “residue” aforesaid.
The answer among other things denies that the residuary clause in the will is void as a testamentary disposition, and that the com[377]*377plainant is entitled by law to one-balf, or any part, of said residue. The answer admits that there remained in the hands of the executors, after executing their trust in all other respects, for distribution among the heirs of the testator, three thousand five hundred and three dollars and seventeen cents, which they afterwards paid and distributed to and between the mother, brothers, sisters and nephews of said testator, according to the requirements of the will. The defendants further answer that they have fulfilled all the directions and requirements of, the will, administered upon all the estate, and duly rendered to the probate court, at proper times, full and true accounts touching said estate, and of their doings in the settlement thereof; and they pray to be hence dismissed with their costs.
The clause in the will calling for construction is as follows: “The reversion of the foregoing life estate given to my wife, and all the residue of my property, real and personal, I give to my legal heirs.”
Though in the reverse order adopted by the learned counsel in their able and exhaustive arguments we will consider the questions raised by the bill in the order therein presented.
I. The validity ok the residuary clause in the will.
The controlling principle in the construction of wills is to ascer tain and give effect to the intention of the testator. A will, in a testamentary sense, contains the solemnly recorded wishes of the testator upon matters of grave moment, and in which he feels a deep solicitude. Both the language and meaning of a will are the testator’s; and in order to ascertain what the meaning is, it is oftentimes necessary to examine and compare clause by clause, or paragraph by paragraph in the Tight of the tes tator’s standpoint. When the intention of the testator has been once ascertained, effect will be given to it, unless it is contrary to some positive rule of law.
The language of the clause of the will under consideration is too clear, explicit and intelligible to leave any doubt as to the testator’s intention to give the reversion and residue of his real and [378]*378personal estate to his legal heirs; there being nothing in the context to qualify or control this language he must be taken to mean what he said.
The rule of law invoked by the complainant to defeat the intention of the testator by rendering the residuary clause in the will void is of ancient origin, and though altered by statute 3 and 4 William 4, c. 106, has been recognized as the common law of Massachusetts, and has not been changed by statute in this State. Sears et al. v. Russell et als., 8 Cray, 93.
That rule is, that a devise to an heir, of the same estate in nature and quality as that to which he would be entitled, is void; in such cases the heir takes by descent and not as purchaser.
One of the tests to try the applicability of this rule is to ascertain whether the heirs take an estate different in quantity or quality from that which they would have taken if no will had been made. Ellis et als. v. Page et als., 7 Cush., 161.
If we apply this test in the case under consideration it is clear that the rule does not apply. Without any will, the heirs would have inherited the “residue” of the real estate in fee simple, subject to the widow’s life estate in one-third part thereof; under the will, they take it by the same tenure, without that incumbrance. Thus the heirs receive a material advantage from the will. If the rule is applicable to personal property the difference is still greater, as the heirs get the whole of the residue of the personal property under the will, whereas under our statutes they would be entitled to only one-half of it, if no will had been made. But we think the rule does not apply to personal property. The reason assigned for it exists only in reference to real estate ; it is, that the title by descent is the worthier and the better title, by taking away the entry of those who might have a right to the land. Moreover, the exception to the rule which we have considered can have no application to personal estate, as the words quantity and quality, when used in their legal, technical sense, refer only to the nature and tenure of real estate. Further, personal property does not come within the rule because it is not the subject of inheritance in [379]*379the sense that real estate is. Coke on Litt., 22, b.; Whitney v. Whitney, 14 Mass., 90; Ellis et al. v. Page et als., ante; 1 Story’s Equity, 542; Emerson v. Cutler, 14 Pick., 115; Dingley v. Dingley, 5 Mass., 537.
II. Who are “legal heirs.”
The word heir has a technical signification, and we will first consider what its meaning is when used in a technical sense_. “Heir,” says Jacobs, “is he who succeeds by descent to lands, tenements, and hereditaments, being an estate of inheritance.” Jacob’s Law Diet., “Heir.” Bouvier defines “heir” to be one born in lawful matrimony who succeeds by descent, right of blood, and by act of God to lands, tenements and hereditaments, being an estate of inheritance. Bouvier Law Diet., “Heir.”
“A bequest,” says, 1 Boper on Legacies, c. 2, § 3, part 2, “to the heirs of an individual without addition or explanation will belong to the next of kin.”
A devise or bequest to next of kin vests the property in the persons (exclusive of the widow) who would take the personal estate in case of intestacy, under the statute of distribution. 2 Jarman on Wills, 28, 4th Am. ed.
The distinction between widow and heir, or next of kin, was recognized in statute 21 Henry 8, c. 5, which provided that administration was to be granted to the widow or next of kin or both. Under that statute the husband is not heir to the wife, nor she to him, and she takes administration not as next of kin, but as widow. Holt v. Wait, 3 Vesey, 247.
Sq, under our statute, if administration is not taken out within the time limited by law, when a person dies leaving personal property, such property becomes the widow’s, or if none, it goes to the next of kin; and administration of intestate estates is granted to the widow, husband or next of kin, &c. R. S., e. 64, § 1.
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Dickerson, J.
This is a bill in equity brought by the complainant, widow of Thomas Lord, formerly of Kennebunk, deceased, against the defendants as executors of the will of said Lord. The bill alleges that after the executors had paid and made over to the complainant all that was specifically devised and bequeathed to her, and all the other legacies, and debts of the testator and the funeral charges and expenses of administration, there remained in their hands a large amount of personal estate not specifically disposed of by the will. The complainant claims that the clause in the testator’s will giving “all the residue” of his property to his “legal heirs,” is void as a testamentary bequest,^ and that said “residue” can only be legally distributed in accordance with the provisions of the statutes by which she is entitled to have and receive one-half of all the personal estate of said “residue,” and, further, that if said residuary clause is valid she is entitled to have aiid receive one-half of all the personal estate of the “residue” aforesaid.
The answer among other things denies that the residuary clause in the will is void as a testamentary disposition, and that the com[377]*377plainant is entitled by law to one-balf, or any part, of said residue. The answer admits that there remained in the hands of the executors, after executing their trust in all other respects, for distribution among the heirs of the testator, three thousand five hundred and three dollars and seventeen cents, which they afterwards paid and distributed to and between the mother, brothers, sisters and nephews of said testator, according to the requirements of the will. The defendants further answer that they have fulfilled all the directions and requirements of, the will, administered upon all the estate, and duly rendered to the probate court, at proper times, full and true accounts touching said estate, and of their doings in the settlement thereof; and they pray to be hence dismissed with their costs.
The clause in the will calling for construction is as follows: “The reversion of the foregoing life estate given to my wife, and all the residue of my property, real and personal, I give to my legal heirs.”
Though in the reverse order adopted by the learned counsel in their able and exhaustive arguments we will consider the questions raised by the bill in the order therein presented.
I. The validity ok the residuary clause in the will.
The controlling principle in the construction of wills is to ascer tain and give effect to the intention of the testator. A will, in a testamentary sense, contains the solemnly recorded wishes of the testator upon matters of grave moment, and in which he feels a deep solicitude. Both the language and meaning of a will are the testator’s; and in order to ascertain what the meaning is, it is oftentimes necessary to examine and compare clause by clause, or paragraph by paragraph in the Tight of the tes tator’s standpoint. When the intention of the testator has been once ascertained, effect will be given to it, unless it is contrary to some positive rule of law.
The language of the clause of the will under consideration is too clear, explicit and intelligible to leave any doubt as to the testator’s intention to give the reversion and residue of his real and [378]*378personal estate to his legal heirs; there being nothing in the context to qualify or control this language he must be taken to mean what he said.
The rule of law invoked by the complainant to defeat the intention of the testator by rendering the residuary clause in the will void is of ancient origin, and though altered by statute 3 and 4 William 4, c. 106, has been recognized as the common law of Massachusetts, and has not been changed by statute in this State. Sears et al. v. Russell et als., 8 Cray, 93.
That rule is, that a devise to an heir, of the same estate in nature and quality as that to which he would be entitled, is void; in such cases the heir takes by descent and not as purchaser.
One of the tests to try the applicability of this rule is to ascertain whether the heirs take an estate different in quantity or quality from that which they would have taken if no will had been made. Ellis et als. v. Page et als., 7 Cush., 161.
If we apply this test in the case under consideration it is clear that the rule does not apply. Without any will, the heirs would have inherited the “residue” of the real estate in fee simple, subject to the widow’s life estate in one-third part thereof; under the will, they take it by the same tenure, without that incumbrance. Thus the heirs receive a material advantage from the will. If the rule is applicable to personal property the difference is still greater, as the heirs get the whole of the residue of the personal property under the will, whereas under our statutes they would be entitled to only one-half of it, if no will had been made. But we think the rule does not apply to personal property. The reason assigned for it exists only in reference to real estate ; it is, that the title by descent is the worthier and the better title, by taking away the entry of those who might have a right to the land. Moreover, the exception to the rule which we have considered can have no application to personal estate, as the words quantity and quality, when used in their legal, technical sense, refer only to the nature and tenure of real estate. Further, personal property does not come within the rule because it is not the subject of inheritance in [379]*379the sense that real estate is. Coke on Litt., 22, b.; Whitney v. Whitney, 14 Mass., 90; Ellis et al. v. Page et als., ante; 1 Story’s Equity, 542; Emerson v. Cutler, 14 Pick., 115; Dingley v. Dingley, 5 Mass., 537.
II. Who are “legal heirs.”
The word heir has a technical signification, and we will first consider what its meaning is when used in a technical sense_. “Heir,” says Jacobs, “is he who succeeds by descent to lands, tenements, and hereditaments, being an estate of inheritance.” Jacob’s Law Diet., “Heir.” Bouvier defines “heir” to be one born in lawful matrimony who succeeds by descent, right of blood, and by act of God to lands, tenements and hereditaments, being an estate of inheritance. Bouvier Law Diet., “Heir.”
“A bequest,” says, 1 Boper on Legacies, c. 2, § 3, part 2, “to the heirs of an individual without addition or explanation will belong to the next of kin.”
A devise or bequest to next of kin vests the property in the persons (exclusive of the widow) who would take the personal estate in case of intestacy, under the statute of distribution. 2 Jarman on Wills, 28, 4th Am. ed.
The distinction between widow and heir, or next of kin, was recognized in statute 21 Henry 8, c. 5, which provided that administration was to be granted to the widow or next of kin or both. Under that statute the husband is not heir to the wife, nor she to him, and she takes administration not as next of kin, but as widow. Holt v. Wait, 3 Vesey, 247.
Sq, under our statute, if administration is not taken out within the time limited by law, when a person dies leaving personal property, such property becomes the widow’s, or if none, it goes to the next of kin; and administration of intestate estates is granted to the widow, husband or next of kin, &c. R. S., e. 64, § 1.
It is obvious from these citations that the term “legal heirs,” when used in a technical sense, does not include the widow.
But is this term, as used in the residuary clause of the will, to be construed according to its technical meaning, or is it to receive [380]*380a more enlarged signification? The general principle is that the word heir, like other legal terms, when unexplained and uncontrolled by the context, must be interpreted according to its strict, technical import, in which sense it obviously designates the person or persons appointed by law to succeed to the real estate in question, in cases of intestacy. 2 Jarman on Wills, 9. But this is only theprima facie construction, which maybe repelled by evidence of a contrary intention of the testator. 1 Roper on Legacies, c. 2, § 6.
There is nothing in the context of the testator’s will which shows an intention to include his wife as a beneficiary, under the residuary clause. Nor do we think that the evidence aliunde is sufficient to overcome the prima facie case established by the will, which excludes the complainant from taking as one of the testator’s “legal heirs.”
The residuary clause of the will was drawn by an eminent counsellor at law, after full consultation with the testator in regard to his purposes. With the knowledge and experience that counsellor had, he must be presumed to have used the term “legal heirs” in its technical sense; and he testifies that he remembers that he drew the clause containing these words to suit his (defendant’s) purpose. That purpose undeniably was to use such language as would in law carry into effect the declared intention of the testator, in regard to the final disposition of the reversion and residue of his estate. This testimony of the solicitor is strongly corroborative of the theory that the technical meaning of the testator’s language is in strict accordance with his actual intention. It would be establishing a dangerous precedent to allow the technical meaning of the will, thus fortified by parol evidence, to be overcome by the testimony of the scrivener who simply copied the will, at the suggestion of the solicitor who drew it, as to a remark made by the testator while he (Wallingford) was thus acting as a copyist. Such testimony, given nearly thirteen years after the occurrence to which it relates transpired, cannot be permitted to have the effect claimed by the counsel for the complainant. We [381]*381are entirely satisfied that the complainant is not entitled to any share of the residuary estate of the testator, either as his widow, or as one of his “legal heirs.”
The counsel for the complainant has cited Mace y. Cushman, 45 Maine, 250, to establish his theory that the widow is a “legal heir” of her deceased husband. But that case has been overruled, though the report of the case in which it was overruled, through some mistake or inadvertence, was never printed.
Bill dismissed with costs for the respondent.
Appleton, C. J., Walton, Barrows, Daneorth and Virgin, JJ.j concurred.