Lyon, J.
I. When this cause was called for argument, it was made to appear that the notice of appeal had only been served on the plaintiffs and the clerk of the proper court, and not upon the residuary legatees, and in behalf of the latter the hearing of the cause was objected to, because they had not been served with such notice. The objection was overruled, ore terms, and the cause was argued at the bar by the counsel of the residuary legatees, with great learning and ability. It is now deemed proper to state briefly the grounds upon which such objection was overruled.
While an action brought by an executor to obtain construction of a will is not strictly an action of interpleader, yet it is ordinarily in the nature of an action in interpleader. 1 Red-field on Wills, 452 (ch. IX, § 36); 2 Story’s Eq. Jur., § 824. This is so when the executor merely sets out in his complaint the will, or the doubtful clauses thereof, states the adverse claims of the parties interested, and asks the court to determine the true construction of the will. In such a case the executor neither alleges nor seeks to establish any particular construction of the will, but leaves the whole -matter to be litigated by the parties interested (who stand upon the record as [96]*96defendants), and to be adjudicated by tbe court. Such a complaint differs in no essential element from a bill of inter-pleader. But for tbe fact tbat tbe legal interest of tbe executor in tbe personalty disposed of by tbe will, and wbicb is the subject of tbe controversy, is something more than tbat of a mere stakeholder, such a complaint would be purely a complaint of interpleader. 2 Story’s Eq. Jur., § 807.
Tbe notice of appeal must be served on the adverse party. Laws of 1860, ch. 264, sec. 3 (Tay. Stats., 1632, § 3). Previous to tbe adoption of tbe code, it was provided by statute in New York, tbat on an appeal from tbe order or decree of a vice chancellor, notice of tbe appeal should be served upon tbe solicitor of tbe adverse party. 2 R. S. (N. Y.), 178, § 60. In Potter v. Baker, 4 Paige, 290, it was intimated tbat on an appeal by a defendant to a bill of interpleader, another defendant, interested in tbe subject matter of tbe suit adversely to tbe appellant, was “ tbe adverse party ” within tbe meaning of tbe statute, and entitled to be served with a notice of appeal. In Thompson v. Ellsworth, 1 Barb. Ch., 624, it was held tbat, under a similar statute and rule of court, tbe party whose interest in relation to tbe subject matter of tbe appeal is in conflict with tbe reversal of tbe order or decree appealed from, or tbe modification sought for by tbe appeal, is “ tbe adverse party.” Tbe same construction was given to tbe section of tbe New York code of wbicb our sec. 3, cb. 264, Laws of 1860, is a copy, in Cotes v. Carroll, 28 How. Pr., 436, and Hiscock v. Phelps, 2 Lans., 106, Tbe point decided in tbe latter case is thus stated in a bead note: “Every party to an action, whether as plaintiff or defendant, who has an interest in sustaining a judgment or determination appealed from, is ‘ an adverse party ’ within sec. 327 of tbe code, and, as such, is entitled to notice of appeal.”
But it should be observed tbat in every case in wbicb tbe defendant appellant has been required to serve notice of appeal upon a codefendant adversely interested, tbe plaintiff bad [97]*97no interest in tbe questions involved in tbe appeal, and did not, in any manner, represent sucli codefendant. Snob would be tbe position of tbe respective parties to a pure bill of inter-pleader, or one in tbe nature of interpleader, where tbe plaintiff, having no interest in tbe controversy, merely states in bis bill the subject matter of the controversy, and tbe conflicting claims of tbe parties interested therein, and asks tbe court to require such parties to come in and litigate their rights to the end that tbe controversy may be judicially settled.
That tbe defendants, tbe residuary legatees in tbe present case, have an interest in sustaining tbe portion of tbe judgment appealed from, cannot be doubted. Hence, were this only an action in tbe nature of an action of interpleader, there is much authority for bolding that tbe residuary legatees should be served with notice of appeal. But this is something more than such an action. Instead of merely stating and asking tbe court to settle and determine the adverse claims under tbe will, tbe executors have constituted themselves tbe champions of tbe residuary legatees, and have asked tbe court to construe those clauses of the will in which tbe appellants have an interest, most favorably to such legatees. Tbe latter might have exhibited their cross bill against their codefend-ants, tbe appellants, or taken some equivalent proceeding tendering directly to tbe appellants an issue on tbe construction of those clauses of tbe will, to which tbe appellants might have interposed an answer or reply. Had they taken this course, tbe residuary legatees would, probably, have been entitled to service of-tbe notice of appeal.. But they have not done so. On the contrary, they have left tbe questions of construction in which tbe appellants are interested, to be litigated on tbe complaint of tbe executors and tbe answer of tbe appellants thereto. They have thereby accepted tbe championship of tbe executors, and have constituted tbe latter their representatives in that behalf; and able counsel appeared for tbe executors in this court, and vigorously maintained tbe cause of tbe residu[98]*98ary legatees against tbe appellants. Under these circumstances, we are of tbe opinion that tbe executors, and not tbe residuary legatees, constitute “tbe adverse party ” within the meaning of the statute of appeals, and that the latter are not entitled to be served with a notice of the appeal.
We have considered this question of practice, because it may become an important one in some future case. But probably it is of small • significance in the present case, for the reason* that, had we taken a different view of it, the appellants would, doubtless, have been permitted to perfect their appeal by making the proper service on the residuary legatees. Laws of 1860, ch. 261, see. IT.
II. The construction given by the court to those clauses of the will by which land in Pierce or St. Croix county is devised to Horace P. Hartshorn and Thomas Q. Hartshorn, two of the appellants, respectively, does not differ materially from the construction thereof claimed by the devisees. It will be remembered that each of the devisees claimed that he was entitled to a conveyance of an undivided interest, equivalent to the quantity of land devised to him, in all of the lands in Pierce and St. Croix counties of which the testator died seized; and that the court adjudged that each was entitled to the foe simple of the specified quantity of such lands, in severalty, the same to be selected by the executors, and to be of average quality and value. Had the court held that each devisee took an undivided interest under the will, as was claimed, and had the interest of each been set off to him, in severalty, by partition proceedings, the partition would have been made on precisely the same principles that the executors were directed to observe in selecting the lands which the devisees were to hold in severalty. N. S., ch. 142, sec. 26.
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Lyon, J.
I. When this cause was called for argument, it was made to appear that the notice of appeal had only been served on the plaintiffs and the clerk of the proper court, and not upon the residuary legatees, and in behalf of the latter the hearing of the cause was objected to, because they had not been served with such notice. The objection was overruled, ore terms, and the cause was argued at the bar by the counsel of the residuary legatees, with great learning and ability. It is now deemed proper to state briefly the grounds upon which such objection was overruled.
While an action brought by an executor to obtain construction of a will is not strictly an action of interpleader, yet it is ordinarily in the nature of an action in interpleader. 1 Red-field on Wills, 452 (ch. IX, § 36); 2 Story’s Eq. Jur., § 824. This is so when the executor merely sets out in his complaint the will, or the doubtful clauses thereof, states the adverse claims of the parties interested, and asks the court to determine the true construction of the will. In such a case the executor neither alleges nor seeks to establish any particular construction of the will, but leaves the whole -matter to be litigated by the parties interested (who stand upon the record as [96]*96defendants), and to be adjudicated by tbe court. Such a complaint differs in no essential element from a bill of inter-pleader. But for tbe fact tbat tbe legal interest of tbe executor in tbe personalty disposed of by tbe will, and wbicb is the subject of tbe controversy, is something more than tbat of a mere stakeholder, such a complaint would be purely a complaint of interpleader. 2 Story’s Eq. Jur., § 807.
Tbe notice of appeal must be served on the adverse party. Laws of 1860, ch. 264, sec. 3 (Tay. Stats., 1632, § 3). Previous to tbe adoption of tbe code, it was provided by statute in New York, tbat on an appeal from tbe order or decree of a vice chancellor, notice of tbe appeal should be served upon tbe solicitor of tbe adverse party. 2 R. S. (N. Y.), 178, § 60. In Potter v. Baker, 4 Paige, 290, it was intimated tbat on an appeal by a defendant to a bill of interpleader, another defendant, interested in tbe subject matter of tbe suit adversely to tbe appellant, was “ tbe adverse party ” within tbe meaning of tbe statute, and entitled to be served with a notice of appeal. In Thompson v. Ellsworth, 1 Barb. Ch., 624, it was held tbat, under a similar statute and rule of court, tbe party whose interest in relation to tbe subject matter of tbe appeal is in conflict with tbe reversal of tbe order or decree appealed from, or tbe modification sought for by tbe appeal, is “ tbe adverse party.” Tbe same construction was given to tbe section of tbe New York code of wbicb our sec. 3, cb. 264, Laws of 1860, is a copy, in Cotes v. Carroll, 28 How. Pr., 436, and Hiscock v. Phelps, 2 Lans., 106, Tbe point decided in tbe latter case is thus stated in a bead note: “Every party to an action, whether as plaintiff or defendant, who has an interest in sustaining a judgment or determination appealed from, is ‘ an adverse party ’ within sec. 327 of tbe code, and, as such, is entitled to notice of appeal.”
But it should be observed tbat in every case in wbicb tbe defendant appellant has been required to serve notice of appeal upon a codefendant adversely interested, tbe plaintiff bad [97]*97no interest in tbe questions involved in tbe appeal, and did not, in any manner, represent sucli codefendant. Snob would be tbe position of tbe respective parties to a pure bill of inter-pleader, or one in tbe nature of interpleader, where tbe plaintiff, having no interest in tbe controversy, merely states in bis bill the subject matter of the controversy, and tbe conflicting claims of tbe parties interested therein, and asks tbe court to require such parties to come in and litigate their rights to the end that tbe controversy may be judicially settled.
That tbe defendants, tbe residuary legatees in tbe present case, have an interest in sustaining tbe portion of tbe judgment appealed from, cannot be doubted. Hence, were this only an action in tbe nature of an action of interpleader, there is much authority for bolding that tbe residuary legatees should be served with notice of appeal. But this is something more than such an action. Instead of merely stating and asking tbe court to settle and determine the adverse claims under tbe will, tbe executors have constituted themselves tbe champions of tbe residuary legatees, and have asked tbe court to construe those clauses of the will in which tbe appellants have an interest, most favorably to such legatees. Tbe latter might have exhibited their cross bill against their codefend-ants, tbe appellants, or taken some equivalent proceeding tendering directly to tbe appellants an issue on tbe construction of those clauses of tbe will, to which tbe appellants might have interposed an answer or reply. Had they taken this course, tbe residuary legatees would, probably, have been entitled to service of-tbe notice of appeal.. But they have not done so. On the contrary, they have left tbe questions of construction in which tbe appellants are interested, to be litigated on tbe complaint of tbe executors and tbe answer of tbe appellants thereto. They have thereby accepted tbe championship of tbe executors, and have constituted tbe latter their representatives in that behalf; and able counsel appeared for tbe executors in this court, and vigorously maintained tbe cause of tbe residu[98]*98ary legatees against tbe appellants. Under these circumstances, we are of tbe opinion that tbe executors, and not tbe residuary legatees, constitute “tbe adverse party ” within the meaning of the statute of appeals, and that the latter are not entitled to be served with a notice of the appeal.
We have considered this question of practice, because it may become an important one in some future case. But probably it is of small • significance in the present case, for the reason* that, had we taken a different view of it, the appellants would, doubtless, have been permitted to perfect their appeal by making the proper service on the residuary legatees. Laws of 1860, ch. 261, see. IT.
II. The construction given by the court to those clauses of the will by which land in Pierce or St. Croix county is devised to Horace P. Hartshorn and Thomas Q. Hartshorn, two of the appellants, respectively, does not differ materially from the construction thereof claimed by the devisees. It will be remembered that each of the devisees claimed that he was entitled to a conveyance of an undivided interest, equivalent to the quantity of land devised to him, in all of the lands in Pierce and St. Croix counties of which the testator died seized; and that the court adjudged that each was entitled to the foe simple of the specified quantity of such lands, in severalty, the same to be selected by the executors, and to be of average quality and value. Had the court held that each devisee took an undivided interest under the will, as was claimed, and had the interest of each been set off to him, in severalty, by partition proceedings, the partition would have been made on precisely the same principles that the executors were directed to observe in selecting the lands which the devisees were to hold in severalty. N. S., ch. 142, sec. 26. Hence the judgment of the court in that behalf is equivalent to assigning to each devisee an undivided interest in the lands in question to the extent of the devise to him, and appointing the executors to make partition thereof.- Inasmuch as the court will compel [99]*99tbe executors to make a proper and just selection of tbe land, and will fully protect tbe devisees, we see no just cause for comqdaint against tbe judgment in that behalf. Indeed it was not seriously urged in tbe argument that tbe construction given by tbe circuit court to these devises should be disturbed.
III. It is claimed on behalf of tbe appellants, and freely conceded by counsel for tbe residuary legatees, that tbe legacies to tbe appellants are not specific but general legacies. Tbe language of tbe will is, that three of these legacies are for the sums therein named, “ in bonds or notes secured by mortgage,” another “ in bonds or notes and mortgaged security,” and still another “ in coupon railroad bonds.” No specific bonds, notes, mortgages or coupon railroad bonds are named, in which payment may be made. Indeed, tbe executors are not restricted, in terms at least, to make such payment in tbe securities which the testator owned at tbe time of bis death, or previously thereto, although tbe circuit court held that these legacies were payable in securities of tbe designated kinds which came to the hands of the executors. In the view 'which we take of the case, it is unnecessary to review ■this decision.
The court further held that payment of the legacies should be made at the nominal or face value of the securities, and not at their actual or market value. This ruling involves considerable sums of money, as well as an important legal principle, and we must determine whether it is correct.
In this case, as in all other cases of the construction of wills, the intention of the testator, as expressed in the will, must govern; and if the will itself does not clearly express that intention, the instrument may be read in the light of the surrounding circumstances. It may be conceded that it is not entirely clear from the language of the bequests, standing alone, whether the testator intended that the designated securities should be turned over to the appellants in payment of their legacies, at the nominal, or at the actual value thereof. [100]*100A bequest of a certain sum in notes, wben tbe testator bad several notes of various relative values, the face or nominal value of which exceeds the bequest, and their actual value falls short of it, may mean that the legatee is to have sufficient of such notes, estimated at their actual value, to pay the sum bequeathed; or it may mean that he is to take the same at their face. Probably neither construction would do violence to the language of the bequest. In such a case it would be necessary to consider the whole will, and such surrounding circumstances as would throw any light on the question, to ascertain the intention of the testator. And this we must do in the present case.
All of the legacies in controversy, amounting to twenty-five thousand dollars (except perhaps one thousand dollars), are to nephews and nieces of the testator. The testator left no children, or lineal descendants. lie made ample provision in his will for his widow and two brothers, besides making them his residuary legatees. It does not appear that he left any other relatives surviving him nearer than nephews and nieces. He left legacies to quite a number of these, other than the appellants, but by far the largest legacies of this class are to the appellants. This fact shows, that, among his nephews and nieces, the appellants were the objects of his peculiar regard. Moreover, it was proved on the trial, on behalf of the executors and residuary legatees, that the testator believed, when he made his will, that his railroad bonds would always be at par, indeed, that they were more valuable securities than government bonds; and he sold a large amount of the latter and invested the proceeds in railroad bonds, paying nearly par therefor. From these facts it may fairly be argued 'than the testator intended that the appellants should receive the sums named in the legacies, in any event; and hence, that if the legacies should be paid in the designated securities, such securities should be reckoned at their actual or market values.
There is a very significant provision in the residuary clause [101]*101of tbe will, wbicb greatly strengthens the argument. It is this: “Any property or money standing charged on my books against any of the aforenamed legatees, from and after this date, my executors will deduct from sums bequeathed them by this will.” Now suppose that Horace P. Hartshorn had received property of the testator of the value of eight thousand dollars, which stood charged to him on the books of the testator at the decease of the latter, and for which the said Horace had never paid. Of course the bequest to Horace would, under the above provision in the will, pay the debt in full; while Thomas G. Hartshorn, to whom a legacy was given of the same sum, in substantially the same words, but who was not so fortunate as to become indebted to the testator, might be compelled to receive the amount of his legacy in greatly depreciated securities at their face. So far as it appears, the relations of the two nephews to the testator were alike, and it is evident from the will that he intended to provide for them alike. It seems unreasonable to believe that he intended, in any contingency, to give such an advantage to the nephew who might happen to be his debtor at his decease. It seems more reasonable to say that when he spoke of “sums bequeathed,” he intended sums of money or its equivalent.
It was proved on 'the trial, that about the time, but before he made his will, the testator told one of the executors that it would be very easy to comply with the requirements of the will; that all the executors would have to do would be to hand over the different securities to the different parties. It is claimed that this fact goes to prove that the testator intended the legacies should be paid in the designated securities at their face. It seems to us that the testator’s remark to the executor evidenced an intention to make specific bequests of the securities, an intention which we have seen was not carried out. Ye are quite unable to perceive how any inference can justly be drawn from the premises, that the testator intended [102]*102bis legatees should take the securities at their face, without regard to their actual value, in payment of their legacies.
Noonan v. Ilsley, 17 Wis., 314, is cited and relied upon to sustain the judgment of the circuit court. The instrument sued upon was a due bill for “ three hundred dollars vn IFzter-town rail/road stock” and it was held that the contract would be fulfilled by delivering the stock of that company of the par or face value of three hundred dollars. A legacy in that form would be substantially a specific legacy. If the same rules of construction governed contracts and wills alike, the difference between that case and the one before us is measured by the difference between a specific and a general legacy. ITad the due bill in that case been for three hundred dollars in railroad stock, generally, without naming the company; or, being as it was, had the testator in the present case directed in what specific notes or bonds each legacy should be paid, the cases would be more nearly alike. The remarks of Mr. Justice PaiNe in Starr v. Light, 22 Wis., 433, so far as they are applicable to the question before us, evidently have reference to cases like that of Noonan v. Ilsley, supra.
After a patient examination of the authorities cited in the arguments of the respective counsel (a review of which in this opinion would serve no useful purpose), and after careful deliberation, we are impelled to the conclusion that the legacies to the appellants are not only general legacies, but demonstrative also, and hence, that if the securities designated in the will for that purpose are insufficient to pay them, the deficiency must be paid, with the other general legacies, .out of the remaining estate of the testator. In the view we have taken of this case, it is quite immaterial whether the legacies be paid in the designated securities, that is, by turning over the securities to thé legatees, or whether the same be sold by the executors and the proceeds applied in payment of the legacies.
It follows that those portions of the judgment appealed from, which construe the several bequests in the will to the [103]*103appellants, must be reversed, and tbe cause remanded with directions to tbe circuit court to render judgment in accordance witb tbe foregoing opinion.
By the Cov/rt. — IX is so ordered.