#### GEORGE W. MORDECAI *against*WILLIAM M. BOYLAN *and others.*

Where’a testator, having estates in this and two other States, appointed an executor here and another residing in one of the other States, and provided that they should not be required to give security, and it appeared that the money in the hands of the executor, in this State, was not sufficient to pay the pecuniary legacies, it was *held*to be the intention of the testator that such executor was not required to prove the will abroad and collect money in the other States to pay the legacies in full, and that he must pay the money in his hands to the legatees *pro rata,*and that the testator intended the executor abroad to administer the assets there.

Where the legatees were children and grand-children of testator’s wife, and the assets, out of which the pecuniary legacies were to be paid, were bearing interest, it was *held*that such legacies were entitled to draw interest from the testator’s death.

*Grand-children*and *great-grand-children*cannot be included in the division of a residue directed to be made among *children.*

The act of 1SC0, chapter 37, preventing the emancipation of slaves by will, applies to the case of a will made before its passage, where a testator died subsequently thereto.

By the Act of 1860, chapter 37, slaves, attempted to be emancipated by will, go to the next of kin, and not to the residuary legatee.

Where a testator, in a codicil, gave as a reason for a legacy to a grandson, that *he had disinherited such grandson,*but the fact was, that he had not disinherited him, but had given him a large legacy in a clause of his will, it was *held*that the bequest, in the will, was not revoked by that of the codicil, but that the latter, itself, was void on account of the mistake, and

*Held further,*that parol evidence, as to testator’s feelings towards the legatee, was admissible, in the question of fact, as to the mistake.

*366This cause was sent up from tbe Court of Equity of "Wake county by consent.

The facts of the case are sufficiently stated in the opinion of the Court, filed by Judge Battle in this Court.

Moore, for the executor.

*Graham,*for Catharine Boylan.

*.K. P.*and *It. II.*Battle, for the residuary legatees.

*G. W.*Ilaywood, ibr *W.*M. Boylan.

Winston, AV., and Fowla, for J. S. Boylan.

Battltc, J.

The bill is filed for the purpose of obtaining the advice and directions of the Court as to how the plaintiff shall act in certain matters of difficulty, which have%»isen in executing the will of his testator, the late William Boylan.

1. It appears from the will, that the plaintiff and three other gentlemen, all of whom, are residents of this State, and Henry Yaughn of the State of Mississippi, are appointed executors, and it is provided that no security shall be required of them, and that they shall not be liable for the acts, negli-gences and omissions of each other. The plaintiff, alone, has qualified as executor in this State, and it is understood that Henry Yaughn has qualified as such in the State of Mississippi. The testator left a large estate of both real and personal pm-perty, consisting of lands, slaves and live stock, situate in both of the above named States — large amounts of Bank and Railroad stocks in this State, and also- a large amount of bonds, notes and other evidences of debt due from persons residing in this State and the States of Louisiana and Mississippi. The pecuniary legacies, given in the will, amount to about the-aggregate sum of $125,000, and the legatees, who are numerous, reside, some in this State, and others out of it. The *executor.*in this State, will not have assets in his hands sufficient to satisfy all the pecuniary legacies, without- collecting the amounts due from debtors residing abroad, and he desires the instruction of the Court — as to whether it is his duty to prove the will, and take out letters testamentary in any other *367than this State for the purpose of collecting the debts, which may be due from debtors residing there.

Our opinion is, that he is not. The testator has settled that question himself, by appointing an executor residing abroad; for such executor must be supposed to have been nominated for the express purpose of attending to the collection of debts due there. And it aids this supposition, that we find the executors excused from all responsibility for the acts, negligen-ces and omissions of each other.

2. The second inquiry is, whether, if the plaintiff cannot collect money enough to pay off all the pecuniary legacies, he must pay out what he has *pro rata*among all the legatees, or may he select and pay whomsover he pleases.

We cannot discover any thing in the will, which gives one legatee any preference over another. All have equal claims upon the executor, and in case of a deficiency of assets, in his hands, he must scale the legatees *fro rata.*

3. Interest, in this case is, we think, to be calculated on all the pecuniary legacies from the testator’s death. All the legatees are his wdfe’s children, grandchildren and a great-grand child, and the assets, or nearly all the assets, out of which they are to be paid, consists of debts due the estate, which are bearing interest; see *Williams*v. Falcon, ante 235.

4. The testator clearly shows by his will, that he under-^ stood the distinction between children and grand-children. The general rule, therefore, must prevail, that in the division of the residue, directed to be made among his children, the testator’s grand-children and great-grand child, cannot be included ; *Ward*v. *Sutton,*5 Ired. Eq. 421.

5. The act of 1860, chapter 37, (see Acts of 1860, 1st session,) forbids the emancipation of David Matthews, his wife, and daughter, Adelaide. The will was made before the passage of the act, but the testator did not die until after that time. The act declares, that no slaves shall hereafter be emancipated by will, deed, or any other writing, which is not to take effect in the life-time of the owner. The object of the law being to prevent the emancipation of slaves by will or any other in*368strument, which is to operate in the nature of a will, we can see no reason why it may not operate upon a will made before its passage, where the testator dies afterwards, as well as one made subsequent to the time of the enactment.' In this respect, it differs from a statute made for the purpose of changing the construction of a will, such as the Act of 1844, chapter 88, (see Rev. Code, chap. 119, sec. 6,) which declared that a will should be construed to speak, with respect to the real and personal estate, comprised in it, as if it had been executed immediately before the death of the testator. Such a statute shall not operate upon a will made before its passage, because the testator, when he made it, is supposed to have used language with reference to that law as it then stood, and the Legislature will not give to sneh language a different meaning. This seems to have been the ground, upon which the case of *Battle*v. *Speight,*9 Ired. 288, was decided. It is manifest that the principle of the decision does not apply to the present case.

6. The executor asks, what is to be done with the slaves in case they cannot be emancipated. The act itself, answers the question. It says, expressly, that they shall go to the next of kin, and shall not pass under any residuary clause of the will.

7. The most difficult inquiry, propounded by the executor, js that which relates to the devise and bequests, in trust, for the testator’s grand-son, John S. Boylan, contained in the 8th clause of the will, taken in connection with the bequest, in trust, for him, to be found in the first codicil. The gift, in the will, is to the testator’s daughter, Catharine, of one half of a tract of land in the State of Mississippi, many slaves, and ten thousand dollars in money, in trust, for the said grandson during his life, with certain limitations over. The codicil is as follows : “I hereby revoke so much of my will as disinherits my grandson, John S. Boylan, and do hereby give and bequeath to my son, John II. Boylan, ten thousand dollars, in trust, for my said grandson, John S. Boylan, the interest to be paid to him annually during his life,” with a limitation to his children, should he leave any, and if not, then to fall into *369the residue of the estate. John S. Boylan claims under both the will and the codicil, while the other devisees and legatees contend that the bequest, in the codicil, is a substitution for what is given in the will, or that at all event, it cannot be cumulative.

This question has been argued with much zeal and ability by»' the counsel on both sides, and after much reflection and some hesitation, we have come to the conclusion that the bequest, in the codicil, is not a revocation of the devise and legacy given in the will, but is, itself, void as having been made under an entire mistake of facts. In coming to this conclusion, we have felt ourselves at liberty to take into consideration the parol testimony, so far as it tends to show the state of the testator’s family, the condition of his estate, and his feelings towards his grandson, J. S. Boylan, at the time when the will and codicil were respectively executed ; see *Bivens*v. Phifer, 2 Jones’ 436. The will bears date 18th day of June, 1858, while the codicil appears to have been made on 2d day of July, 1860. In the interval between those dates, the grandson, John S. Boylan, had, by his evil and dissipated conduct, so seriously incurred the displeasure of his grandfather, that he declared Ms intention to disinherit him. The counsel for John S. Boylan, contends that the devise and bequest in the will, is not revoked by the codicil, because, though it may appear that the testator intended, at one time, to revoke the gift to his grandson, and thereby disinherit him, yet, such intention had never been carried out in any manner recognized by the law as sufficient for that purpose. He then insists, that the legacy in the codicil, is a plain bequest of the sum therein mentioned, and there is nothing to prevent its taking effect. On the other hand, the counsel for the other defendants, argue that the codicil shows a plain intention, in the testator, to disinherit his grandson, and the great rule which governs in the construction of wills, to wit, that the intent must prevail, no matter in what language it may be expressed, requires the Court to give full effect to it. In support of this argument, besides the other cases, that of *Postmaster*
      *370
      *General*v. Early, *17*Curtis, 86, decided by the Supreme Court of United States, was referred to, wherein it was held that an act of Congress, which gave jurisdiction to a certain court over certain subjects, concurrent with another court, thereby conferred a jurisdiction upon the latter court, which it had never had before. That may be so, but the cases are not parallel. If a testator were, by a codicil, to bequeath to A a thousand dollars, that being the sum which he had, by his will, given to his brother B, then B might claim a legacy of that sum, though it had not been given to him in the will. The language, here supposed, would be very much like that in the case cited by the counsel. But the words of the codicil, in the case now before us, are very different. The testator says, “ I revoke so much of my will as disinherits my grandson, John S. Boylan,” and we do not see how this can mean the direct reverse of the plain import of the language. If a previous codicil had been found, in which the testator had disinherited his grandson, a revocation of that, by a second codicil, must have had the effect to restore the gift of the real and personal estate contained in the will. We are of opinion, then, that the devise -and bequest in the will, must stand, but are satisfied that the testator labored under a mistake of fact, in supposing that he had disinherited his grandson, and that the legacy, given by the codicil, was the consequence of that mistake ; considering the state of alienated feelings in which the parties stood towards each other at the time, and the cause which Bad produced it, we cannot, for a moment, suppose that the testator intended to give his grandson an additional,legacy. That legacies given under a false impression as to the existence or non-existence of a fact, will be null and void, is shown by many oases; see Wms. on Ex’rs. Ml, et seq.

Per Curiam, Decree accordingly.

PearsoN, C. J.

I concur in the opinion filed by Judge Battle, with the exception of that part in reference to the *371$10,000, given by the codicil to John II. Boylan, in trust, for John S. Boylan. I am of opinion that, according to the rules of construction adopted by the Court, see *Millsaps*v. *McLean,*9th Jones’ Rep. (this term,) wills must be construed by what a testator does and not what we suppose he intended to do. But, as Judge Battle is clear in his opinion, that the language, in the codicil, does not take effect, and as Judge Manly, who heard the argument, is of the same opinion, I do not insist on my opinion, so far as to dissent; particularly, as the matter will not be made a precedent; for, no other case of the kind, will, in all human probability, occur again, and I am satisfied the conclusion of Judge Battle and Judge Manly is more in accordance with the actual intention of the testator than that to which I have come, by a consideration of the will and codicil, and such evidence as the Court is allowed to hear.