GjreeN, PRESIDENT,
delivered the opinion of the Court:
The first question presented by the record in this cause is, whether in the imperfect condition of the bill the circuit court ought to have rendered any decree on the merits in this cause. The principal objects of the suit are: first, to obtain the opinion of the court on the question, whether Martha Magers, the widow of the [829]*829testator Joseph Magers, under the will of her husband was entitled to the interest during her life on the pur-' chase money oí the hill farm in the hands of the administrator ; aud secondly, to set aside the agreement of May 18, 1874, which had been executed by her.
The propriety of setting aside this agreement depends to some extent on the question, whether the plaintiff Martha Magers under her husband’s will is entitled during her life to the interest of the proceeds of the hill farm. And the point to be determined is: ought the court in this case on this bill to have determined the question, whether the plaintiff was under the will of her husband entitled to the interest on the proceeds of this hill farm during her life, or widowhood; or ought it to have refused to decide this question, till other parties were brought before the court, aud till the situation of the testator and his family and property and other facts and circumstances, as surrounding the testator at the time of the making of the will, had been established by the evidence, or enquired into by a commissioner, with a view of elucidating the testator’s general intention and the scheme, which he had framed for the disposition of his property.
Syllabus J. However great may be the task of ascertaining the intention of the testator, still if it can be ascertained by any legitimate means, it must be held sacred and full effect given to it. The court will make the amplest allowance for unskillful ness and negligence of the testator; technical informalities will be disregarded ; the most preplexing complications of words and sentences will be carefully unfolded ; and traces of the testator’s intention will be diligently sought out in every part of the instrument ; and the whole carefully weighed together. And in construing a will the court ought; when the cases require it, to enquire into all the circumstances surrounding the testator, when he made his will, and which may have influenced him.
Syllabus 2 But if after exploring throughout the entire will, aided [830]*830by all the facts known to the testator, and all the circumstances surrounding him, when he made his will, the court cannot penetrate through the obscurity, in which the testator has involved his intention, the failure of a supposed intended testamentory disposition is the inevitable consequence; and the heirs or distributees must in such case take ; for they cannot be disinherited but by necessary implication. See opinion of Judge Lee in Wootton v. Redd’s ex’rs et al., 12 Gratt. 205, 206.
In the case before us the will of Joseph Magers, Sr., is quite obscure ; and it is obvious, that we cannot interpret fairly the first portion of the fourth clause of this will, which the bill seeks, without carefully considering not only the whole of this fourth clause but also the entire will. This first portion of this fourth clause, the direct subject of controversy in this suits, is: “At the time my son Ezra attains the age of twenty-one, or at the time of his death, I desire my hill farm to be sold by my executor; and should my wife be living, and remain a widow, I desire the purchase money to be put at interest during her life; ” but the testator immediately adds: “And I desire the proceeds of the sale of the personal property to be divided as follows: ” He then proceeds to bequeath $1,650.00, in sums ranging from $100.00 to $200.00, among his children and the descendants of his deceased children, including, I sup-suppose, all of them except those, to whom, he says, “he has already given their portion in land.”
[831]*831Syllabus 3. [830]*830It is obvious, that in determining the question, whether he intended his wife to have during her life, or widowhood, the interest on the proceeds of the sale of this land, it will greatly aid us, if we can determine definitely the meaning of the testator in the latter part of this fourth clause of his will. Did he mean thereby to dispose only of the proceeds of what was technically his personal property; or did he mean thereby to dispose of the proceeds of this hill farm; or of both his personal property and the hill farm. If he meant the proceeds of the sale of [831]*831bis personal property proper, then be died intestate as to the proceeds of bis bill farm, or at least as to the principal thereof. And in that case all bis children, including the descendants of those, who had died, would take the proceeds of the hill farm as distributees; and a portion of it would be coming to his children, George, John and Nancy Jane, to whom he gives nothing, and who are not made parties defendants to this suit. If then it is important, in order to determine the principal question in this case, to first determine, whether the testator died intestate, as to any portion of hi,? estate real or personal, it is obviously proper, nay absolutely necessary, before this case can be properly decided, or considered by the court, that all the children of the testator should be parties to the suit.
The bill also states that some of the legacies, named in this fourth clause of the will, have been paid by the administrator improperly to the legatees. Now if these payments have been made to the female legatees, their husbands should also be made parties, for it might turn out, that a portion of such payments might have to be refunded. And if it should be held, that the testator died intestate, as to the extent of the proceeds of the sale of the hill farm during his widows’ life, then the husbands would be entitled to receive their share thereof in right of their wives, as distributees. They should therefore have been made parties, before the court decided this cause on its merits. And if they, or any of them, have died, their personal representatives should have been made parties.
Even had the proper parties all been before the court, it could not, in view of the difficulties of construing this will, have prudently decided this cause on itsmerits, till, on the principles we have already stated, it had before it the state of facts, under which the will xvas made, including the amount, and value of the real and personal estate, when the will was made, and when the testator died; whether his personal estate, after deduct[832]*832ing the portion given to his Avife spcifically by the second clause of the will, was more than sufficient to pay his debts, and if so, hoAA much more ; and especially, what land the testator had given to bis children, George, John and Nancy Jane, before making his will; and the value of the land so given.
These facts would certainly aid the court in coming to a correct conclusion, as to the meaning of the testator in the fourth clause of his will, and in determining, whether he died intestate, as to any portion of his estate real or personal. ♦
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GjreeN, PRESIDENT,
delivered the opinion of the Court:
The first question presented by the record in this cause is, whether in the imperfect condition of the bill the circuit court ought to have rendered any decree on the merits in this cause. The principal objects of the suit are: first, to obtain the opinion of the court on the question, whether Martha Magers, the widow of the [829]*829testator Joseph Magers, under the will of her husband was entitled to the interest during her life on the pur-' chase money oí the hill farm in the hands of the administrator ; aud secondly, to set aside the agreement of May 18, 1874, which had been executed by her.
The propriety of setting aside this agreement depends to some extent on the question, whether the plaintiff Martha Magers under her husband’s will is entitled during her life to the interest of the proceeds of the hill farm. And the point to be determined is: ought the court in this case on this bill to have determined the question, whether the plaintiff was under the will of her husband entitled to the interest on the proceeds of this hill farm during her life, or widowhood; or ought it to have refused to decide this question, till other parties were brought before the court, aud till the situation of the testator and his family and property and other facts and circumstances, as surrounding the testator at the time of the making of the will, had been established by the evidence, or enquired into by a commissioner, with a view of elucidating the testator’s general intention and the scheme, which he had framed for the disposition of his property.
Syllabus J. However great may be the task of ascertaining the intention of the testator, still if it can be ascertained by any legitimate means, it must be held sacred and full effect given to it. The court will make the amplest allowance for unskillful ness and negligence of the testator; technical informalities will be disregarded ; the most preplexing complications of words and sentences will be carefully unfolded ; and traces of the testator’s intention will be diligently sought out in every part of the instrument ; and the whole carefully weighed together. And in construing a will the court ought; when the cases require it, to enquire into all the circumstances surrounding the testator, when he made his will, and which may have influenced him.
Syllabus 2 But if after exploring throughout the entire will, aided [830]*830by all the facts known to the testator, and all the circumstances surrounding him, when he made his will, the court cannot penetrate through the obscurity, in which the testator has involved his intention, the failure of a supposed intended testamentory disposition is the inevitable consequence; and the heirs or distributees must in such case take ; for they cannot be disinherited but by necessary implication. See opinion of Judge Lee in Wootton v. Redd’s ex’rs et al., 12 Gratt. 205, 206.
In the case before us the will of Joseph Magers, Sr., is quite obscure ; and it is obvious, that we cannot interpret fairly the first portion of the fourth clause of this will, which the bill seeks, without carefully considering not only the whole of this fourth clause but also the entire will. This first portion of this fourth clause, the direct subject of controversy in this suits, is: “At the time my son Ezra attains the age of twenty-one, or at the time of his death, I desire my hill farm to be sold by my executor; and should my wife be living, and remain a widow, I desire the purchase money to be put at interest during her life; ” but the testator immediately adds: “And I desire the proceeds of the sale of the personal property to be divided as follows: ” He then proceeds to bequeath $1,650.00, in sums ranging from $100.00 to $200.00, among his children and the descendants of his deceased children, including, I sup-suppose, all of them except those, to whom, he says, “he has already given their portion in land.”
[831]*831Syllabus 3. [830]*830It is obvious, that in determining the question, whether he intended his wife to have during her life, or widowhood, the interest on the proceeds of the sale of this land, it will greatly aid us, if we can determine definitely the meaning of the testator in the latter part of this fourth clause of his will. Did he mean thereby to dispose only of the proceeds of what was technically his personal property; or did he mean thereby to dispose of the proceeds of this hill farm; or of both his personal property and the hill farm. If he meant the proceeds of the sale of [831]*831bis personal property proper, then be died intestate as to the proceeds of bis bill farm, or at least as to the principal thereof. And in that case all bis children, including the descendants of those, who had died, would take the proceeds of the hill farm as distributees; and a portion of it would be coming to his children, George, John and Nancy Jane, to whom he gives nothing, and who are not made parties defendants to this suit. If then it is important, in order to determine the principal question in this case, to first determine, whether the testator died intestate, as to any portion of hi,? estate real or personal, it is obviously proper, nay absolutely necessary, before this case can be properly decided, or considered by the court, that all the children of the testator should be parties to the suit.
The bill also states that some of the legacies, named in this fourth clause of the will, have been paid by the administrator improperly to the legatees. Now if these payments have been made to the female legatees, their husbands should also be made parties, for it might turn out, that a portion of such payments might have to be refunded. And if it should be held, that the testator died intestate, as to the extent of the proceeds of the sale of the hill farm during his widows’ life, then the husbands would be entitled to receive their share thereof in right of their wives, as distributees. They should therefore have been made parties, before the court decided this cause on its merits. And if they, or any of them, have died, their personal representatives should have been made parties.
Even had the proper parties all been before the court, it could not, in view of the difficulties of construing this will, have prudently decided this cause on itsmerits, till, on the principles we have already stated, it had before it the state of facts, under which the will xvas made, including the amount, and value of the real and personal estate, when the will was made, and when the testator died; whether his personal estate, after deduct[832]*832ing the portion given to his Avife spcifically by the second clause of the will, was more than sufficient to pay his debts, and if so, hoAA much more ; and especially, what land the testator had given to bis children, George, John and Nancy Jane, before making his will; and the value of the land so given.
These facts would certainly aid the court in coming to a correct conclusion, as to the meaning of the testator in the fourth clause of his will, and in determining, whether he died intestate, as to any portion of his estate real or personal. ♦
The court therefore, instead of deciding on the merits of the case, should have given leave to the plaintiff to amend his bill, if he thought proper, and to make the necessary parties, and more distinct allegations in the bill, and also to make all allegations, he thought proper, of facts existing at the time the testator made his will, Avhich would aid in its interpretation; and when this has been done, if the testimony, which may be taken or the pleadings hereafter, do not ascertain these facts to the satisfaction of the court, it should direct an en-quiry of them to be made by a commissioner of the court before deciding the cause on its merits.
I am therefore of opinion, that the decree, rendered in this cause, of December 11, 1876, should beset aside, reversed and annulled, as prematurely made; and that the appellants must recover of the appellee, Martha Magers, their costs in this Court expended; and this Court proceeding to render such decree, as the court below ought to have done, doth, grant leave to the plaintiff to amend her bill, and make the necessary parties thereto, and such other allegations, as she is advised may be desirable; and this cause is remanded to the circuit court of Marshall county, to be further proceeded Avith according to the principles indicated in this opinion, and further according to the rules of a court of equity.
The other Judges CoNCuured.
Decree Reversed. Cause Remanded.