#### JULIA M. PATTON *vs*JAMES A. PATTON, AUGUSTUS W. PATTON, ALBERT T. SUMMEY, Administrator of WM. A. PATTON, deceased, and others.

sVriere real estate of inheritance Is purchased by a partnership, for .partnership purposes, and is so used, on the death of one of the parts ners, his widow is enticled to dower.

A testator devised land and bequeathed personal estate to sundry persons. By a residuary clause he gives all the rest of his estate real .and personal to his e'xecutors, in trust to sell and divide the proceeds among his wife a»tl children. Then follows immediately this clause ; *'■l*direct my executors to keep my estate together and not to *hand c«er*any of thn devises or legacies, until my existing rail road cou-.tracts ip T. and N. 0. are completed.”

"The last clause has relation only to what is given by the residuary clause. ' *t ,*

The plaintiff filed this bill to recover .dower In the lands ■of which heríate husband, William A. Patton, died, seized •and possessed. . '

■There was no controversy except about a piece of land i-ndled the tan yard lot, and some tracts of land devised to her late husband by James W. Patton, deceased. . ’ ’

The materia] facts respecting the tan yard lot are: in 1 '-■til, "William A. Patton, Washington Morrison, James A. Patton and Samuel G-. .Kerr, formed a partnership for the purpose o. tanning leather, manufacturing leather into shoes, xy. ’William A. Patton was the owner in fee of a piece of land conveniently situated for carrying on the business of Ü58 firm. He conveyed throe-fourths of it to the three other partners retaining the other fourth, and each partner put *•his*fourth into the partnership as part of.his stock, and the *21whole piece of land was used for the purposes of the first during its continuance. As to the other subject of controversy, James W. Patton devised several town lots and traéis of land to his son, Wm. A. Patton, in fee, and bequeathed to him some slaves. He devised and. bequeathed many other town lots and tracts of land and slaves to his wife and' children, other than William A.

The will then proceeds as follows : *“*All the rest and residue of my estate, real and personal, and mixed, wherever sitnate, including land, negroes, chatties, and every interest legal and equitable, I will, devise and bequeath to my executors 'hereinafter named, and such of them as act, and the survivors of them, in trust to he sold at public or private sale as they may judge best, and the lands in tract& or parts of tracts or lots as they may from time to time judge-best, and on such terms as they may determine for the interest of the estate, and of the proceeds of the sales and collections of the debts due to me, pay. all debts owed by me, and the surplus of said funds to pay over to and distribute equally between my said wife Henrietta Kerr Patton, *my sons*James A. Patton, William Augustus Patton, Thomas W. Patton and my daughter Frances L. Patton. I direct my executors 'to keep my"estate ’together and not to hand over any of the devises or legacies, until my existing rail•road contracts in Tennessee and North Carolina are *coni-'*pleted, and after'giving some'practical directions respecting his rail road contracts, the testator says “and after the said rail road contracts are completed, the various legacies and devises herein contained shall take effect. But In the meantime-the provisions herein herein made for my wife shall take effect at once, or such part théreof as she desires,” and “If for any cause my executors should think it necessary to sell one or more of the slaves directed to be sold, even before said rail road contracts are completed, for bad conduct or *22other cause, they are at liberty to do so.” The testator, ■James W. Patton, died in 1861, and the AY. A. Patton died in 1863*

*Merrimon*for the plaintiff.

No counsel for the defendants in this court.

PeaksON, C. J.

The right of the plaintiff to.dower in the tan yard lot, is settled by the case of Summcy *vs.*Patton, ai: this term. TheTot having been spld by the surviving partners, there will be a reference to fix the amonnt to which she is entitled absolutely, according to the rateable value of her life estate.

We are of opinion she is also entitled to dower in all of the land acquired by her husband under the will of J.'W. Patton, except the tracts or parcels of land which pass to the executors under the residuary clause, in trust te be sold by them, and the proceeds of sale divided equally’ among his wife and children. A devise operates as a conveyance. The' land passes *directly*from the divosor to the devisee, and the, executor takes no estate or interest in it. For this reason •¿he lands given specifically to the wife and children, do not come within the operation of that clause, which directs the executor *“*to keep my estate together, .and not to *hand over*any of the devises or legacies, until my existing rail road contracts in Tennessee and North Carolina are completed.” In reference to land specifically given, the words “ not to hand over,” can have no application whatever. Indeed apart from this principle growing out of the essential difi'er-ence between a devise and'a legacy, we should incline to the opinion, that by a proper construction, this restriction only applies to the property containe Í in the residuary clause. It is a part of that clause, and is naturally confined to the pro1 perty therein disposed of: to say nothing of the unreasonableness of the sppposition, that it* was the intention to tie up *23his Whole estate, real and personal, until a future event which ■might not- happen for several years, leaving his wife and children in the meantime to starve. If such had been the intention, there - surely would have been some provision for thoir support. And the fact that the land in the hands op the devisees, would still remain ultimately liable for the debts of the devisor, in aid of the other portions of his estate towards the completion of the rail road contracts, seems to «confirm the soundness of this construction/

Decree for the plaintiff.