Simrall, J.,
delivered the opinion of the court. •
The single question litigated in this case is, whether the heir and distributee of Jesse Watson is entitled to share with the children of the testator, in the money raised by a sale of the land.
So much of the will as is necessary to be considered, in disposing of the subject, are extracted in “Acec verla ” or substantially stated.
By the 2d item of the will, the testator gave to his widow, a [20]*20life estate in the “ whole of his property, including both real and personal (except a slave William), determinable however upon her marriage, coupled with a power to dispose of the land, the proceeds to constitute a part of his estate and subject to distribution as thereinafter directed.
By the third clause, in the event of his widow's marriage, the testator directed his estate to be divided, so that the widow should have one-third for life, and the other two-thirds to be equally divided between his children (naming them), then follow these words: “My son Jesse Watson, I positively wish to have a negro man William, as a part of his portion of my estate, and that negro man I wish delivered to him at my death by my executrix, for him to be priced to him when delivered by good pages, at a fair valuation, as a portion of his interest in my estate; to him and his heirs forever, and the rest of my children, as named to be equal legatees in my estate with him.”
The 8th item directs, at the death of his widow, “that the lands be sold, and the money arising therefrom to be equally divided between Jesse Watson, and other children, naming them.”
By the documentary evidence and depositions, it is shown that the testator died in August, 1852, the owner of a tract of land, thirteen slaves, stock, etc. Jesse Watson, to whom the slave William was bequeathed, was a son by a first marriage, and was living near his father, but not a member of his family. He took the slave William into possession the first of the year 1853, and continued to control and claim him, for several years, and until the slave lost his life by a casualty.
The other children, as directed by the will, resided with their mother upon the farm, and were maintained out of the property.
Courts will look at the circumstances which surrounded the testator — will through these means put themselves in his place — ■ and then apply the terms of the instrument to its subject matter and objects. 2 Jarm. on Wills, 741; Brown v. Thorndike, 15 Pick., 400 ; Gilliam v. Chanceller & Murray, 43 Miss. Rep., 453.
[21]*21All parts of the will are to be construed in relation to each other, so as to form, if possible, a consistent whole. If several parts are absolutely inconsistent and repugnant, the latter must prevail. 2 Jarm. on Wills, 741; 16 Vesey, 814.
Athough there may be apparent inconsistency and incongruity in several parts, yet if there can be clearly discerned a general intent, that should prevail; and overrule the particular, although the former be first expressed. The governing intent ought to control in the construction, if it can be made compatible with the import of the language used. Chase v. Lockerman, 11 Grill & Johns., 206.
The widow died in 1872. Since her death the land has been sold as ordered by the will. The question in litigation is, whether the heir and distributee of Jesse Watson, deceased, represented by her guardian, should be charged with the value of the slave William, as so much received by her ancestor, before participating in the fund for distribution.
As we understand the record, if this grandchild is chargable as claimed by the other beneficiaries of the will, nothing will be coming to her out of the fund.
The motive of making an immediate gift of the slave William to his son Jesse, referred to with emphasis in two distinct clauses, was because this son was living away from the family, and all of the residue of the property was left to the widow for life, or during widowhood, for the support of herself and the maintenance of her children, the half brothers and sisters of Jesse. Since he would derive no benefit from the general estate until the termination of the life or widowhood of Mrs. Watson, it seemed just to the father that so far as the personal property was concerned,, he should at once be let into the enjoyment of what would .approximate his share of it.
The governing intent to be gathered from the entire instrument must be adopted as the central idea, to give harmony and system to the testamentary plan. So that lesser particulars seemingly incongruous, must give way, if absolutely necessary.
[22]*22A prominent thought in the mind of the testator was to make his son by the first marriage, and his children by his last wife, equal participants in his property, so far as the necessities of his family would allow. The younger children were to be educated, and the widow provided for. Having but a small farm and but few slaves, these (with the exception of William) were to be kept together, by the widow, for that purpose.- The power to sell the land, conferred by the second paragraph, was for the purpose of reinvestment, so that the proceeds of the land should constitute a part of his estate, and be subject to distribution as afterwards directed.
The third paragraph provided for the contingency of the widow’s marriage, and directed in that event that the widow should have one-third for life, and the other two-thirds should go to his children, naming them ; then follow the words: “My son, Jesse Watson, I positively wish to have a negro man, William, as part of my estate — * * to be delivered to him immediately after my death— * * at a fair valuation— * * as a portion of his interest in my estate. * * * The rest of my children, as named, to be equal legatees in my estate with him.”
The “ estate ” here referred to, means the personal, and does not include the real. The division enjoined, only embraces the personal property. The equality between the other legatees and Jesse, relates to that kind of property. This interpretation is strongly fortified by bringing into juxtaposition with it the paragraph immediately preceding and the 8th. The second item, after bestowing a life estate on the widow, gives her the power to sell, but charges the proceeds with a distribution, as afterwards directed. The power was evidently conferred that a reinvestment might be made in other lands. For the 8th paragraph directs a sale of the land at the death of the widow, and the money to be equally divided between Jesse and the children named.
The testator kept distinctly in his mind the two sorts of property which he was disposing of; the predominant purpose [23]*23as respects both was, that in each kind, when the time for division came, Jesse and his half brothers and sisters should share equally. No provision was made for the sale of the slaves in any contingency. The design was that they should be divided on the second marriage of the widow, or at her death; but when it was made, it must be on the terms of equality between Jesse and the other legatees.
So the second paragraph foreshadows a distribution of the land fund, which is developed in the eighth item, whether the land which the testatpr left at his death, or other land into which the widow may have converted it; a sale should be made and the money equally divided between Jesse and half brothers and sisters.
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Simrall, J.,
delivered the opinion of the court. •
The single question litigated in this case is, whether the heir and distributee of Jesse Watson is entitled to share with the children of the testator, in the money raised by a sale of the land.
So much of the will as is necessary to be considered, in disposing of the subject, are extracted in “Acec verla ” or substantially stated.
By the 2d item of the will, the testator gave to his widow, a [20]*20life estate in the “ whole of his property, including both real and personal (except a slave William), determinable however upon her marriage, coupled with a power to dispose of the land, the proceeds to constitute a part of his estate and subject to distribution as thereinafter directed.
By the third clause, in the event of his widow's marriage, the testator directed his estate to be divided, so that the widow should have one-third for life, and the other two-thirds to be equally divided between his children (naming them), then follow these words: “My son Jesse Watson, I positively wish to have a negro man William, as a part of his portion of my estate, and that negro man I wish delivered to him at my death by my executrix, for him to be priced to him when delivered by good pages, at a fair valuation, as a portion of his interest in my estate; to him and his heirs forever, and the rest of my children, as named to be equal legatees in my estate with him.”
The 8th item directs, at the death of his widow, “that the lands be sold, and the money arising therefrom to be equally divided between Jesse Watson, and other children, naming them.”
By the documentary evidence and depositions, it is shown that the testator died in August, 1852, the owner of a tract of land, thirteen slaves, stock, etc. Jesse Watson, to whom the slave William was bequeathed, was a son by a first marriage, and was living near his father, but not a member of his family. He took the slave William into possession the first of the year 1853, and continued to control and claim him, for several years, and until the slave lost his life by a casualty.
The other children, as directed by the will, resided with their mother upon the farm, and were maintained out of the property.
Courts will look at the circumstances which surrounded the testator — will through these means put themselves in his place — ■ and then apply the terms of the instrument to its subject matter and objects. 2 Jarm. on Wills, 741; Brown v. Thorndike, 15 Pick., 400 ; Gilliam v. Chanceller & Murray, 43 Miss. Rep., 453.
[21]*21All parts of the will are to be construed in relation to each other, so as to form, if possible, a consistent whole. If several parts are absolutely inconsistent and repugnant, the latter must prevail. 2 Jarm. on Wills, 741; 16 Vesey, 814.
Athough there may be apparent inconsistency and incongruity in several parts, yet if there can be clearly discerned a general intent, that should prevail; and overrule the particular, although the former be first expressed. The governing intent ought to control in the construction, if it can be made compatible with the import of the language used. Chase v. Lockerman, 11 Grill & Johns., 206.
The widow died in 1872. Since her death the land has been sold as ordered by the will. The question in litigation is, whether the heir and distributee of Jesse Watson, deceased, represented by her guardian, should be charged with the value of the slave William, as so much received by her ancestor, before participating in the fund for distribution.
As we understand the record, if this grandchild is chargable as claimed by the other beneficiaries of the will, nothing will be coming to her out of the fund.
The motive of making an immediate gift of the slave William to his son Jesse, referred to with emphasis in two distinct clauses, was because this son was living away from the family, and all of the residue of the property was left to the widow for life, or during widowhood, for the support of herself and the maintenance of her children, the half brothers and sisters of Jesse. Since he would derive no benefit from the general estate until the termination of the life or widowhood of Mrs. Watson, it seemed just to the father that so far as the personal property was concerned,, he should at once be let into the enjoyment of what would .approximate his share of it.
The governing intent to be gathered from the entire instrument must be adopted as the central idea, to give harmony and system to the testamentary plan. So that lesser particulars seemingly incongruous, must give way, if absolutely necessary.
[22]*22A prominent thought in the mind of the testator was to make his son by the first marriage, and his children by his last wife, equal participants in his property, so far as the necessities of his family would allow. The younger children were to be educated, and the widow provided for. Having but a small farm and but few slaves, these (with the exception of William) were to be kept together, by the widow, for that purpose.- The power to sell the land, conferred by the second paragraph, was for the purpose of reinvestment, so that the proceeds of the land should constitute a part of his estate, and be subject to distribution as afterwards directed.
The third paragraph provided for the contingency of the widow’s marriage, and directed in that event that the widow should have one-third for life, and the other two-thirds should go to his children, naming them ; then follow the words: “My son, Jesse Watson, I positively wish to have a negro man, William, as part of my estate — * * to be delivered to him immediately after my death— * * at a fair valuation— * * as a portion of his interest in my estate. * * * The rest of my children, as named, to be equal legatees in my estate with him.”
The “ estate ” here referred to, means the personal, and does not include the real. The division enjoined, only embraces the personal property. The equality between the other legatees and Jesse, relates to that kind of property. This interpretation is strongly fortified by bringing into juxtaposition with it the paragraph immediately preceding and the 8th. The second item, after bestowing a life estate on the widow, gives her the power to sell, but charges the proceeds with a distribution, as afterwards directed. The power was evidently conferred that a reinvestment might be made in other lands. For the 8th paragraph directs a sale of the land at the death of the widow, and the money to be equally divided between Jesse and the children named.
The testator kept distinctly in his mind the two sorts of property which he was disposing of; the predominant purpose [23]*23as respects both was, that in each kind, when the time for division came, Jesse and his half brothers and sisters should share equally. No provision was made for the sale of the slaves in any contingency. The design was that they should be divided on the second marriage of the widow, or at her death; but when it was made, it must be on the terms of equality between Jesse and the other legatees.
So the second paragraph foreshadows a distribution of the land fund, which is developed in the eighth item, whether the land which the testatpr left at his death, or other land into which the widow may have converted it; a sale should be made and the money equally divided between Jesse and half brothers and sisters.
The difficulty of settling the rights of the parties grows out of the altered condition of the testator’s estate, by reason of the emancipation of the slaves.
We have discovered from an analysis of different parts of the instrument, the purpose, studiously kept prominent, of equality among the beneficiaries. That intent can be effectuated in consonance with the language used, by holding, that the gift of the slave to Jesse was to be accounted for when the division of the personal estate was to have been made. It was observed in Lassiter v. Wood, 63 N. C. Rep., 363, that the general intent must be carried out, “ and minor considerations when they come in the way must yield, especially so when the purpose is in consonance with reason and natural affection.” In that ease the bulk of the landed property was given to the sons in separate parcels, estimated to be worth to each $10,000. To his four daughters the testator gave pecuniary legacies of $10,000 each. Because of the emancipation of the slaves, the personal estate fell far short of paying the legacies. The general purpose deduced from the will was, that the testator intended to make equal provision for all his children. To give effect to that intent, the court resolved that the pecuniary legacies should be charged upon the [24]*24lands devised to the sons, so far as to produce equality among the children.
The governing motive with the testator, Joshua Watson, was,, that the children of both mariages should share alike in the-division of the slaves, and also in the distribution of the land fund. Emancipation has annihilated the former property, and there can be no adjustment of interests as respects it, such as was-contemplated by the testator.
But equality will be observed and justice will be done by giving to the minor child of Jesse WatsoD, deceased, an equal share, with the other beneficiaries of the money arising from the-sale of the land. Such was the decree of the chancellor, and it is-affirmed.