Where a testator, after giving several pecuniary legacies in "dollars," proceeded as follows: "Item. I likewise leave all my lands and plantation to be sold by my executors, and pay five hundred to my brother N. S.'s children, to be equally divided, to them and their heirs forever. Item I give and bequeath E. S. One thousand dollars, to him and his heirs forever. Item. And also all the residue of my estate to be sold by my executors, and all my just debts to be paid — those legacies to be paid off which I have already given away, and the balance, if any, to be equally divided between E. S." and others: It was held, that the words "five hundred" meant five hundred dollars, and was a legacy of that sum to the children of N.S.; and that the legacy was a general one.
DANIEL, J., after stating the case:
In the construction of wills the intention of the testator is to govern, if such intention do not contravene any rule of law. And to ascertain that intention the Court may look through the whole will. Taking these rules for our guide, we cannot fail to see that it was the intention of the testatrix that the words "pay five hundred" were to pay five hundred dollars. All the money legacies in the will, which are both before and after the clause in question, are expressed in dollars. In the said clause the testatrix directs her executors to pay the said sum to the plaintiffs. It is therefore a legacy. A legacy is defined to be "some particular thing or things given or left, either by a testator in his testament, wherein an executor is appointed, to be paid or performed by his executor, or by an intestate in a codicil, or last will, wherein no executor is appointed, to be paid or performed by an administrator." Williams on Exrs., 694; Godolph, Pt. 3, ch. 1, sec. 1.
Secondly. Is the legacy a general legacy? We think it is. The testatrix intended to convert her lands out and out, and add the purchase money to her personal estate. Now, whatever force there may be in the argument that as the power to the executors to sell the land is in the same clause in which she directs her executors to pay the plaintiffs the $500, this is tantamount to declaring that the executors are to pay the said sum out of the purchase money, we need not inquire, for her declaration in the residuary clause of the will, "those legacies paid off which I have already given away," show a plain intention on her part that the plaintiffs should have the sum as a general legacy.
We are of the opinion that the executors must account, and if the personal estate not specifically given away be insufficient to pay all the general legacies, then they must abate in proportion.
PER CURIAM. Decree accordingly.
Cited: Dew v. Barnes, 54 N.C. 151; Howerton v. Henderson, 88 N.C. 601; Crouse v. Barham, 174 N.C. 462.
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