#### Den on the several demises Gabriel Homes and Mildred his wife, and James B. Sawyer and Louisa his wife, *v.*Robert Mitchell.

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The Word *legacy,*used in a will, often relates to *real*as well as *per-ennal*estate. The explanation of this word must be governed by the intention of the testator. Common people apply the word *legacy*to land as well as money ; and courts should construe words-according to their meaning in common parlance.

Arthur Mabson being seized in fee of the lands in question, departed, this life in the year *1777,*having published in writing his last will, duly executed, to pass bis real estates,* and therein and thereby devised: 1. “To. his wife Mary all his household furniture at his plantation on Neps Creek, his riding horses and carriage, and. all such part of Ins plate as was marked M. C. And be gave to tier, “ during her natural life, the use and property of one-fifth part of all his slaves; and after her decease, he gave the said slaves to his children, Mary, Susannah, Arthur, Samuel and William, or the survivor of them, to he equally divided among them. And he *229also gave to- Ii.is wife during her widowhood-, the use of any one of his plantations she might choose. Sdly. To bis. son Arthur Mabson, his plantation on Neps. Creek, and all his other lands thereto adjoining, and a sixth I>art of all his slaves, cattle and hogs, and the remaining part of hispíate. Sdly. Tolas daughter, Mary Mabson, one house and lot in Wilmington, and qne-sixth part of all his slaves, cattle and hogs,, to be put into her posses, sion when she should attain the age of twenty-one years or she should marry. 4thly. To his daughter, Susannah Mabson, another house and lot in Wilmington, and one-sixth part of his. slaves, &c., 5thly. To his, son, Samuel Mabson,, his plantation on, the Sound and a tract of land adjoining, and one-sixth part of his. slaves, &c-. Ctlily, To his son, William Mabson, all bis other lands and one-sixth part of bis slaves, &c. 7thly. He gave all thp rest and residue of his personal estafe to his aforesaid five children, to be equally divided between them. And Sthly. He directed that in case of the death of any, of his said children, without lawful issue, *before, the time 'they could get pos&essmi of their respective legacies, the legacy bequeathed to such child so dying, shall, be equally divided between the survivors or survivor of them*”*

Arthur Mabson was the testator’s eldest son and Iteir at law. He died intestate hi the year 1793, leaving the lessors of the Plaintiff, Mildred and Louisa, his heirs at law. Mary Mabson, named in the third clause of the testator’s will, entered into possession of the premises, upon the death of her father, and remained in possession of them until the year 1808, when she died without issue, having by her last will, duly executed to pass real estate, devised the premises to the Defendant. The premises described in the declaration were the same with, those devised to Mary Mabson in the third clause of the testator’s will. The question submitted to the Court was, fi What estate in the premises did Mary Mabson take under her father's will ?’*

*230HaxTj, Judge,

delivered tlie opinion of ííio Court:

The first clause of the will connected with this question, anil by which the premises are given to Mary Mabson, certainly has only the effect of conveying to her an estate for life. The testator has not even expressed an intention of giving away *the whole*of his estate; a circumstance, which in many cases, has been much relied upon. But what appears to be decisive of the question, is the clause in which the testator directs, “ that in case of the death of any of my aforesaid children without issue, before the time they can get possession of their respective legacies, the legacies before bequeathed to such child so dying, shall be equally divided between the survivors, or survivor of them.” It has been argued that the word legacy relates only to personal *property;*and no doubt it would be more correct to use it in that way; but most testators are unacquainted with that circumstance, and apply *this*word indiscriminately to both real and personal property, and so the testator applied it' in this case. Tile case of Hope on the demise of Brown and wife *v.*Taylor, 1 Burr, 2G8,* is an authority that settles this question. It certainly never could bo the intention of the testator, that in case Mary died before she got possession of the property given to her by the will, the personal property should be divided among the survivors, and the real estate either go to a residuary, legatee, or to the heir at law, as property undisposed of. Let judgment be entered for the Defendant.

*

 The case stated was this: Robert Johnston, seized in fee, (inter aiia,) of a *copyhold*of inheritance, and having first surrendered to the use of Jus will, devised to John tVcdgeborough, his sister’s eldest son, liis house in the Brook, with the out-building's, and *£*30 to be paid wither twelve months after his decease ; to his nephew, Robert Taylor, *£ 50,*to be paid within twelve months after his decease; to ills nepnews, diaries Taylor, Robert Taylor and William Taylor, Iris sis-i< r's three sons, twenty-nine acres of arable and meadow land, bought ■ ofE.! not ts be parted, but to part the rent equally between them. *231Then to William Taylor, his sister’s son; tlie bouse in question, by the description of *“*his House on the Green; with the ground and outhouses thereto belonging tad gave him also *£*10; and to his brother-in-law, .Charles Taylor, *£*5; and he directed that the said *legacies*be paid within twelve months after his decease ; and declared his will and meaning to be, *“*That *if either*of the persons before named die *•without issue lawfully*begotten; then the said *legacy*shall be divided equally *between them that are left alive. ”*

The testator had *five*houses in all; and the will began with this expression, “ as to *all*my *worldly estate,”*&c. and it concluded thus : “.And all the *rest*of my houses, goods, lands and cattle, I give to my ' kinswoman, Elizabeth Wedgeborough, and make her my sole executrix.”

William Taylor entered and was admitted, and enjoyed till the 15th June, 1775, when he died, leaving the Defendant, William Taylor, his only son and heir at law.

' The wife of Brown, the lessor of the Plaintiff, was heir at law to the testator, and as such, brought the ejectment against William Taylor the son, who claimed as tenant in tail.

And the question made in the case and decided by the Court was, *“*What estate William Taylor, the devisee, took by the will ? *Vide*whether an estate *tail,*or *for life*only ?

Lord Mansfield. It is admited that if the word *legacy*is applicable to lands, William Taylor has an estate tail. This is plainly a will of the man’s own drawing'; he professes to dispose of his *whole*estate. He means to make *one*of his relations his general heir ; the other oh-*232jects of Ills bounty are four nephews, and he gives them land, and also some pecuniary legacies; to be paid within twelve months after his death. Then he gives his brother-in-law *£ S.*And if either these persons before mentioned, *shall die -without issue*lawfully begot., ten, then he gives the said legacy “ to those who shall be left alive* to be equally divided between them.

The explanation of this word “ legacy,” must be governed *by*the intention of the testator; and to this purpose some stress may be laid upon this introduction of the professed disposition of *all*his Worldly-estate. A different construction has been sometimes put upon the very-same words, as applied to money and lands, in order to support the intent of the testator, as in the case of *Forth*v. *Chapman,*by Lord Mac-lesiield. It is most agreeable to the intention of the testator in this case, to construe the word “ legacy,” to extend to land. It would not be a *legal*limitation if confined to money. The legacies may happen to' be spent soon after the twelve months is expired. And it could never be intended that so small a sum as the *£ 5*should be put out to interest, and kept liable to this limitation. If the brother-in-law died without issue, there would be no one left to divide the legacies. *Common*people do not make such distinction between money and land, as persons conversant in law matters do. The testator meant this clause as a restraint upon his former bequest, and meant that the issue should have it. The word “ legacies” does extend to lands, as well as to monies. Common people would not think of using the word *devise,*although it be the more usual technical term. Judgment for the ¡Defendant.