#### JAMES YOUNG et al. *v.*JOSEPH M‘D. CARSON, Administrator of ANDREW YOUNG, et al.

A bequest by a testator to bis wife in the following words: “ I wish her to get Stanford in her third of the property if she chooses,” — is not a specific legacy of the slave to the wife, but only gives her the right to take him at a fair valuation; and if that valuation is more than her share, she must account for the surplus.

This was a petition by the next of kin of Andrew Young against his administrator with the will annexed, for distribution, to which his widow vras also made a party defendant, submitted to his Honor Judge Martin, at Rutherford, on the last Circuit, upon the following case, agreed:—

Andrew Young died without children, leaving a paper writing, which was duly admitted to probate as his last will and testament, in the words following, to wit: “ January the 8th, 1833. I write these few lines to let all persons know that doing this murder is my own fault, and no body’s else; and I wish my dear wife to take it as easy as possible; and I wish her to get Stanford in her third of the property if she chooses, for she has raised him. I hope the rest won’t be so ungenerous but to agree to it, as it is my wish. If I had to marry fifty times I don’t want to have a better wife than she has been to me.

“ Given under my hand and seal.

“Andrew Young. [ t.s. J”

The said testator left a small estate, the one-third of which was not equal in value to that of the slave Stanford, mentioned in the will. The petitioners, who were entitled, as next of kin, under the act of assembly, insisted that the slave above mentioned was subject to distribution. The defendants insisted that Mary Young (the widow) was *361entitled to the slave under the will, although he was of a greater value than one-third part of the estate. It was agreed by the parties that if the slave were not devised to the defendant, the widow, then he was to be sold for distribution ; but if he did so vest by said bequest, that then the remainder of the estate only was to be distributed among the petitioners. His Honor *pro forma*gave judgment for the petitioners; and the defendants appealed.

*Pearson*for the defendants.

No counsel appeared for the plaintiffs.

Daniel, Judge.

— This is a petition for distribution, filed by the next of kin of Andrew Young, deceased, against the administrator with the will annexed. The question submitted for the opinion of this court is, whether the widow is entitled to the slave, Stanford, as a specific legacy, under the will of her husband, Andrew Young? It is contended on behalf of .the widow, that if the court should not construe the will as giving her the slave as a specific legacy, the whole will would be but a nullity; as there are no other legacies given, and the testator died without children. The law, they say, would give her one-third of his personal property. The words of the will creating the legacy are as follows: “I wish her” (his wife) “ to get Stanford, in her third of the property, if she chooses.” After examining the whole will, it seems to us, and we so declare our opinion to be, that the testator intended that his wife should have but a third of his property ; and that the slave, Stanford, did not pass as a specific legacy. The testator meant that the slave in question should, if the wife wished it, be taken by her in making up the payment and satisfaction of her third of the property. He thought, for the reasons given by him, that his wife would prefer a payment, or part payment, of her third of the property, (not knowing the amount,) by taking Stanford at valuation. He, therefore, gave her the power of taking him at a fair valuation. It is very likely that the testator expected that one-third of his property would be more in amount than the price of the slave; but it has *362turned out otherwise. The court is of the opinion that, in taking the account, the widow may elect to have the slave at a fair valuation, and account to the administrator for so much of the valuation as shall appear to be above her one “ *third part of the property”*of the testator. The judgment below is affirmed; and this opinion will be certified to the superior court of law for the county of Rutherford.

Per Curiam. Judgment affirmed.