#### THOMAS C. MEADOWS AND ANOTHER, *Executors, against*ISABELLA MOORE AND OTHERS.

Where a testator bequeathed, one half of his whole estate to his wife absolutely, and after giving several other legacies, gave the undisposed of residue to several persons named,, and then provided, that “ his wife’s portion; was to be taken off before the other distribution,” it was *Held*to be the-intention of the testator to give his widow one half of the gross amount of his; estate, irrespective- of charges of any kind.

Where pecuniary legacies were given to slaves, it was *Held*that the amounts thus intended, to be given away remained as integral parts of tire estate, for the want of a legal taker, and as such, fell into a residuary fund, provided in. the will'.

Causis removed from the Court of Equity of Rockingham-county.

The hill is filed’ hy the plaintiffs, as- executors- ©f Pearson Moore-, praying the advice of the Court in relation to their duties in the payment of certain legacies under the testator’s will, the portions *of*which, material to the questions propounded, are as follows:

“ Item 1st. I will and bequeath to my-wife, Isabella Moore-, on-e half of my whole estate-, consisting-of lands, negroes, &c-.’'’

“ Item 2nd. It is my will that grave stones * * be furnished for the graves of myself and each of my deceased children. Also-, a good stone-wall to be placed around the whole of the graves, as large as the- wooden palling now is.”

“ Item 3rd. It is also my will, that my negroes select for their masters whomsoever they wish to be their owners.”

“Item 4th. I will and bequeath to each of my negroes^, namely, *Lizzy,*Batt, Able, Joe, Haney, Sarah, Thomas and Iiitt, fifty dollars ea-ch. It is my particular wish that the above request be complied with.”

“ Item 5th. I will and bequeath unto Wilson E>. Moore, the sum of five hundred dollars, out of the remainder of' my estate.”

“ Item 6th. It is also my will, after the- above legacies are disposed of, the remainder of my estate be equally divided *55between Wilson D. Moore, William Moore, David Moore, Julia Moore, Rosannah Moore, also Ellison Walker, William Walker, Thos. Walker, Emily Walker and Rachel Walker.”

“ Item 7th. It is also my will, that my wife’s portion of my estate, given to my wife, he her’s absolutely, to do with as she may think proper. It is my will that my wife’s portion of my estate be taken off before the other distribution is made.”

The plaintiffs allege that conflicting claims have been set up by the several legatees under this will, which render it unsafe for them to proceed in the administration thereof, without the advice and protection of the Court; they particularly desire to be advised, whether the widow takes one half of the gross amount of the testator’s estate, or whether the charges of administering the estate, and the legacies to the slaves, (which are admitted to be lapsed) the legacy to Wilson D. Moore, and the expenses of the tomb-stones and wall for the grave-yard, are to be first deducted, and the residue only divided between the widow and the other legatees.

2nd. They ask to be advised what becomes of the legacies (amounting to $400) intended for the slaves; whether the same falls into the residuary fund, or whether it is undisposed of, and is to be distributed according to the statute of distributions.

3rd. Out of what fund are the charges for erecting tombstones, &e., and the legacy to Wilson D. Moore to be paid, and whether the lapsed legacies constitute a part of such fund. All the legatees were made parties and answered.

The cause was set for hearing upon the bill, answers and exhibit, and sent to this Court.

Morehead, for the plaintiffs.

McLean, for the defendants.

Manly. J.

We have examined the will, in connection with the pleadings in the case, and are clear, in our opinion, as to the intention of testator. To us, the purpose seems manifest, *56to give the wife one half of the gross amount of his estate, and to subject the other half *only*to the payment of remaining legacies and charges.

The legacies of fifty dollars to each of eight slaves, do not pass from the estate, (for the want of competent persons to take) but remain integral parts thereof, and with all other parts, constitute the gross fund, from which the wife’s half is to he divided. The other half is subject, in the hands of the executors, to the paj'ment of legacies and charges, and after these objects are accomplished, the residue is subject, further to a division according to the sixth item of the will.

The wife’s rights, as a legatee, are not at all touched by questions as to the lapsing of legacies to the slaves, or of the fund, into which they rightfully fall, for if those legacies had been to capable persons, they would have been taken into the account when the wife’s half was to be allotted.

And so we think the expenditure, in providing grave-stones and a wall for the burial-ground, and the legacy to Wilson D. Moore, set forth in the bill, as item 2nd and 4th of the will, are charges upon the other entire half of the estate, the lapsed legacies included.

Wherefore, let a declaration be made to this effect, and a reference for an account to be taken in conformity.

The costs of this suit may be taxed upon the residuary fund in the hands of the executors.

PeR Oukiam, Decree accordingly.