Shaw, C. J.
The question in the present case affects the personal estate only left by Thomas Rider, and not disposed of, in terms, by his will; and it must depend upon the St. of 1805, c. 90, <§> 2, which was in force at the time of the testator’s death in 1830, and was the law by which estate, not disposed of by last will, was then regulated. It provides that, “ when any person shall die possessed of any personal estate, not lawfully disposed of by last will,” (after various other directions,) “ the widow shall be entitled to one half of the residue, if there be no issue.”
It is a well established rule of law, that the right to a distributive share of personal estate, under the statute of distributions, is a vested interest, vesting, in point of right, at the time of the decease of the intestate, although the persons to take, and the amount to be received, must be ascertained and determined by a decree of the probate court; which, from various causes affecting the settlement of the estate, may not [429]*429be made till long afterwards. 3 P. W. 49, note. Foster v Fifield, and Hayward, v. Hayward, 20 Pick. 70, 519. It seems to follow, as a necessary consequence, that Mrs. Rider's vested right to one half of the personal property, subject to the gift of the use thereof to herself for life, like all other vested rights to personal property, went to her personal representatives. Such was the view which appears to have been taken of the case by the probate court; and we are of opinion that it was correct.
Several objections were taken, in the argument, to this decree, which it may be proper briefly to consider. 1. It was contended, that in order to let in the claim of the widow to one third, if there be issue, and to one half, if there be no issue, there must be an entire intestacy; that is, that the deceased shall have made no will. But such, we think, is not the construction of the terms of the statute, nor its legal effect. In terms, it extends to personal property not disposed of by will. It applies to estates as it finds them ; if there has been no will, then to the whole estate; if there be a will, not disposing of the whole of the personal estate, then it extends to the estate not disposed of by such will. Nor can any argument be drawn from the expression by which the deceased is called the intestate — “ if the intestate shall leave a widow.” The terms testator and intestate are used to mark the general distinction between a deceased person who makes a will and one who does not; and for shortness and convenience, applicable to the majority of cases, such a description is useful. But, as it is clear that a person may dispose of part of his property by will, but not all, and it becomes necessary to mark the distinction, he may be properly designated as a testator in regard to the property which passes by his • will, and an intestate as to all other property.
Nor is there, in our view, any more force in the argument drawn from the title of the statute, being “ an act regulating the descent and distribution of intestate estates.” Supposing the title could be resorted to as a medium of expounding a statute, fwhich is doubtful,) here the term “ estate ” obviously means [430]*430property, and the qualifying term “ intestate ” confines it to property not given by will.
But the more decisive consideration is, that the argument, if well founded, would exclude the children and next of kin, as well as the widow; for the same provision in the statute of distributions, which gives property not disposed of by will, where there is a will, to children and others next of kin, gives a distributive share to the widow.
2. Another ground taken was, that by the earlier- statute of distributions, (St. 1783, c. 36, § 3,) the phraseology is, not that the widow shall be entitled to one third, but that one third shall be decreed to her by the judge of probate; from which it is -inferred, that it is a personal right, and that if she dies before such decree made, the right is gone. It is extremely doubtful, to say the least, whether such would be the construction. The form of that statute was, first directing the descent of real estate, in which, of course, the widow does not take a share, because in that she has another and higher right, that of dower. It then declares that personal estate shall be distributed among heirs, in the same way and manner real estates descend,' with some modifications, one of which is, that one third shall be decreed to the widow. Now, as the rights of all the distributees must be ascertained, and adjudged by a decree of the probate court, before they can claim a distributive share of the administrator, when it is declared by law that a certain proportion of that fund shall be decreed to the widow, it seems equivalent to declaring that she shall have it, or be entitled to it. But if the argument were well founded, and there be this distinction in the statutes—the one declaring her title to the distributive share, and the other ordering such share to be decreed to her — then the former is lepealed by the latter, and the latter, declaring the title, must govern.
3. It was suggested, that when there is a will and an executor appointed, there can be no property undisposed of, because by law the property vests in the executor. If this ancient rule of law were in force here, and could stand consistently witli our statute, and if it were so construed as that the executor would
[431]*431take beneficially in the present case, the whole residue vested in the widow, because she was herself executrix. But this rule is considered not to apply, even in England, where a legacy is given to the executor, or where it is declared or may be inferred from the will, that it was not intended. Dicks v. Lambert, 4 Ves. 729. It was intimated by Parsons, C. J. in Hays v. Jackson, 6 Mass. 152, that, according to the strict rules of law, there could be no undevised personal estate, where an executor was appointed, because he has all the personal estate in trust, to pay debts and legacies, and the residue to his own use, unless excluded by the will. But this rule of law he considered as controlled by St. 1783, c. 24, § 10. His conclusion was, that now the executor is, in all cases, trustee of the undisposed residue, for the next of kin. This passage was relied on in the argument to show that, under such trust, the widow could not claim, she not being next of kin, and could not be trustee for herself. It is manifest, that in this passage, the term “ next of kin ” was used to include all persons, who could claim under the statute of distributions, as the statute is expressly referred to, and is said to have removed all doubt, and to have shown that such undisposed property should be administered by the executor, in the same manner as it would be by an administrator if there was no will. If an executor is considered, by any technical rule of law, as holding the legal estate in trust, it may be as well for himself as for others. Suppose the executor were a son, instead of a widow; he would be regarded, in the case supposed, as trustee for himself and other children, if any.
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Shaw, C. J.
The question in the present case affects the personal estate only left by Thomas Rider, and not disposed of, in terms, by his will; and it must depend upon the St. of 1805, c. 90, <§> 2, which was in force at the time of the testator’s death in 1830, and was the law by which estate, not disposed of by last will, was then regulated. It provides that, “ when any person shall die possessed of any personal estate, not lawfully disposed of by last will,” (after various other directions,) “ the widow shall be entitled to one half of the residue, if there be no issue.”
It is a well established rule of law, that the right to a distributive share of personal estate, under the statute of distributions, is a vested interest, vesting, in point of right, at the time of the decease of the intestate, although the persons to take, and the amount to be received, must be ascertained and determined by a decree of the probate court; which, from various causes affecting the settlement of the estate, may not [429]*429be made till long afterwards. 3 P. W. 49, note. Foster v Fifield, and Hayward, v. Hayward, 20 Pick. 70, 519. It seems to follow, as a necessary consequence, that Mrs. Rider's vested right to one half of the personal property, subject to the gift of the use thereof to herself for life, like all other vested rights to personal property, went to her personal representatives. Such was the view which appears to have been taken of the case by the probate court; and we are of opinion that it was correct.
Several objections were taken, in the argument, to this decree, which it may be proper briefly to consider. 1. It was contended, that in order to let in the claim of the widow to one third, if there be issue, and to one half, if there be no issue, there must be an entire intestacy; that is, that the deceased shall have made no will. But such, we think, is not the construction of the terms of the statute, nor its legal effect. In terms, it extends to personal property not disposed of by will. It applies to estates as it finds them ; if there has been no will, then to the whole estate; if there be a will, not disposing of the whole of the personal estate, then it extends to the estate not disposed of by such will. Nor can any argument be drawn from the expression by which the deceased is called the intestate — “ if the intestate shall leave a widow.” The terms testator and intestate are used to mark the general distinction between a deceased person who makes a will and one who does not; and for shortness and convenience, applicable to the majority of cases, such a description is useful. But, as it is clear that a person may dispose of part of his property by will, but not all, and it becomes necessary to mark the distinction, he may be properly designated as a testator in regard to the property which passes by his • will, and an intestate as to all other property.
Nor is there, in our view, any more force in the argument drawn from the title of the statute, being “ an act regulating the descent and distribution of intestate estates.” Supposing the title could be resorted to as a medium of expounding a statute, fwhich is doubtful,) here the term “ estate ” obviously means [430]*430property, and the qualifying term “ intestate ” confines it to property not given by will.
But the more decisive consideration is, that the argument, if well founded, would exclude the children and next of kin, as well as the widow; for the same provision in the statute of distributions, which gives property not disposed of by will, where there is a will, to children and others next of kin, gives a distributive share to the widow.
2. Another ground taken was, that by the earlier- statute of distributions, (St. 1783, c. 36, § 3,) the phraseology is, not that the widow shall be entitled to one third, but that one third shall be decreed to her by the judge of probate; from which it is -inferred, that it is a personal right, and that if she dies before such decree made, the right is gone. It is extremely doubtful, to say the least, whether such would be the construction. The form of that statute was, first directing the descent of real estate, in which, of course, the widow does not take a share, because in that she has another and higher right, that of dower. It then declares that personal estate shall be distributed among heirs, in the same way and manner real estates descend,' with some modifications, one of which is, that one third shall be decreed to the widow. Now, as the rights of all the distributees must be ascertained, and adjudged by a decree of the probate court, before they can claim a distributive share of the administrator, when it is declared by law that a certain proportion of that fund shall be decreed to the widow, it seems equivalent to declaring that she shall have it, or be entitled to it. But if the argument were well founded, and there be this distinction in the statutes—the one declaring her title to the distributive share, and the other ordering such share to be decreed to her — then the former is lepealed by the latter, and the latter, declaring the title, must govern.
3. It was suggested, that when there is a will and an executor appointed, there can be no property undisposed of, because by law the property vests in the executor. If this ancient rule of law were in force here, and could stand consistently witli our statute, and if it were so construed as that the executor would
[431]*431take beneficially in the present case, the whole residue vested in the widow, because she was herself executrix. But this rule is considered not to apply, even in England, where a legacy is given to the executor, or where it is declared or may be inferred from the will, that it was not intended. Dicks v. Lambert, 4 Ves. 729. It was intimated by Parsons, C. J. in Hays v. Jackson, 6 Mass. 152, that, according to the strict rules of law, there could be no undevised personal estate, where an executor was appointed, because he has all the personal estate in trust, to pay debts and legacies, and the residue to his own use, unless excluded by the will. But this rule of law he considered as controlled by St. 1783, c. 24, § 10. His conclusion was, that now the executor is, in all cases, trustee of the undisposed residue, for the next of kin. This passage was relied on in the argument to show that, under such trust, the widow could not claim, she not being next of kin, and could not be trustee for herself. It is manifest, that in this passage, the term “ next of kin ” was used to include all persons, who could claim under the statute of distributions, as the statute is expressly referred to, and is said to have removed all doubt, and to have shown that such undisposed property should be administered by the executor, in the same manner as it would be by an administrator if there was no will. If an executor is considered, by any technical rule of law, as holding the legal estate in trust, it may be as well for himself as for others. Suppose the executor were a son, instead of a widow; he would be regarded, in the case supposed, as trustee for himself and other children, if any.
But the principal argument is, that it cannot be reasonably inferred, that it was the intention of the testator, after giving the whole of his personal property to his wife for life, that she should have any part of it absolutely; and in the absence of all expression of his intentions, it shall be construed as a gift to his heirs, by implication.
A gift by implication must be founded upon some expressions in the will, from which such intention can be inferred. It cannot be inferred from an absolute silence on the subject. It may be admitted in a popular sense, that when a deceased person has given a part of his property to one object of his [432]*432bounty, he had no intention that such person should take another portion. But we think the true answer is, that the intention of the testator is to govern, so far only as he has communicated that intention, by Ms will, either in terms or by implication ; but if he has left undevised property, the disposition of it is not governed by his will, but by another rule having its origin in another source, in the application of which the intent of the testator is not the governing rule, and can have no influence. It operates in the same manner, as if the deceased had left no other property and made no will. If, therefore, the intent of the testator, not to give the remainder to the same person, could reasonably be inferred from a gift of personal property to one for life,'in terms, it could have no effect in regulating the disposition of intestate property. If, however, it were thought important to inquire into the intent of the deceased, when he has made a will, but left property undisposed of, either in terms or by implication; as every man is presumed to know the law, it may reasonably be inferred, as his intention, that the residue should be disposed of according to law.
But this point seems to be well settled by authorities, both in England and in this Commonwealth. Davers v. Dewes, 3 P. W. 40. Dicks v. Lambert, 4 Ves. 725, 732. When a bequest of personal property is made to the wife, the part undisposed of shall go to her and the next of kin, according to the statute of distributions. Briggs v. Hosford, 22 Pick. 288. Ex parte Kempton, 23 Pick. 163. Decree affirmed.