#### JOHN W. ODEN AND WIFE AND OTHERS *against*JAMES WINDLEY, EXECUTOR, AND OTHERS.

During the pendency of an issue of *demsavií vél non,*and before the •will is admitted to probate, the widow enters her dissent; it was *held,*that her dissent is effectual, and that her personal representative is entitled to a distributive share.

Where a residuary fund is bequeathed to “ all my legatees, equally to be divided,” it was *held,*that persons to whom gifts of slaves were confirmed, and one dollar in addition given, were entitled to come in for a share under the description of legatees.

Where a residuary fund is bequeathed to all my legatees, equally to be divided, it was *held,*that one, to whom a life-estate was given, remainder to- his children, must come in with his children for one share between them.

A legacy given to an executor does not deprive him of commissions, unless it is expressly mentioned as being in *lieu*of them.

Where a share in a residuary fund is given to persons that had been advanced by deeds of gift, which are ratified by the will, there is no reason why they should account for their advancements before they shall take such share.

Cause removed, from the Court of Equity of Beaufort County.

The bill was filed by the plaintiffs, as legatees under the •will of Ruel Windley, against the executor and the administrator of his -widow, and against other legatees, for an account and settlement of the estate. Yarious questions are raised by the pleadings, growing out of the construction of the will, of which the following is a copy of the material parts, viz :

Item 1st. gives to his daughter Rebecca Ann Oden, a large number of negroes, (naming them); also several tracts of land, (describing them,) and many small articles.

Item 2nd. gives to his grand-son George C. Rispass, three several tracts of land.

Item 3rd. “ I give and devise to my grand-son George 0. Rispass, all the lands that lie,” &c., decribing them.

£i Item 4th. I give and devise to my two grand-sons, George 0. Rispass, and John B. Rispass, all my' river-shore lands, lying on the Uorth side of Pamlico River, and known as the William Windley, dec’d., lands, excepting one hundred acres, which I shall lend to Ruel W. Jordan, and give to his cliil-*441dren; and I also except one hundred acres, which I shall give to my friend Jamtss "Windley; and the rest of the said tract to be -equally divided between them — the said George and; John B. Eispass.

“Item 5th. I lend to my grand-son Enel *W.*Jordan, his life-time, and give and devise the same to his children, a tract of land which is excepted out of the above tract, being the house and land where he now lives, beginning,” &c., (describing it,) “ to have and to hold, to them and their heirs, in fee simple forever.

“Item 6th. I give and'becjueath to my grand-sons George 0. Eispass, and JohnB. Eispass, the following property,” (describing eight negroes, and a great number of articles of personal property,) “ to be -equally divided between them, share and share alike. I give unto George C. Eispass, negro boy Abram, son of Jack.

“Item 7th. I give and devise to my.grand-daughter Martha Minerva Topping, one tract of land, (describing it). I also give and bequeath to the said Martha M. Topping the following negroes, being the same thatlloaned to Hannah Topping, wife of Ira Topping, in her life-time, and now in the possession of Ira Topping; and also, I give her a negro boy Jim, son of Eose, now in my possession; I also give her two cows and calves, and give her five hundred dollars, provided there is a residue left after all the legacies are taken out, the said five hundred dollars to be kept at interest wntil she arrives at age,” with a limitation over to Eebecca Oden and others, in case the said Martha should die'“ without lawful heirs of her own body.”

“Item 8th. Igive and bequeath to my son Zachary "Windley, all the negroes I formerly gave him, by deed of gift, and in advance and full share of my negroes, I intended to give him. Also I give him one dollar cash.

“ Item 9th. I give to my daughter Jerusha Allen all^the negroes which I formerly gave by deed of gift as her full share of negroes, which was intended for her. I give her one dollar in cash.

*442“ Item 10th. I give and bequeath to my friend and relative, James "Windley, for services done me by him, the following .tracts of land, (describing them); I also give unto him, my friend James Windley, two hundred and fifty dollars in good negotiable notes; also I give to him two cows and calves, and ten head of sheep.

“ I give unto my beloved wife, Priscilla II. Windley, two cows and calves, ten head of sheep, one mahogany table, three black walnut chairs. I lend unto my wife, Priscilla II. Wind-ley, the following negroes, (naming them,) during her natural life or widowhood, and then to be equally divided between my legatees mentioned in this my last will and testament; and I also lend to my wife, Priscilla II. Windley, during her natural life or widowhood, my dwelling house, &c., one year’s provision, &c. Now, I will and desire that all of the property of mine not disposed of in this my last will and testament, both real and personal, shall, at my death, be sold at a credit of six months, and the proceeds of the same be equally divided between all of my legatees mentioned in this my last will and testament, share and share alike ; and lastly, I do hereby constitute and appoint my trusty friend, Benjamin E. Eborn, and James Windley, my lawful executors.”

This will was offered for probate, by the defendant James Windley, one of the executors therein named, who alone qualified, and a caveat entered in the County Court of Beaufort, upon which an issue was made up to try the validity of the same. This issue was pending in that Court from March term, 1S53, until December term, 1854, when, by a verdict of a jury, it was finally established as the testator’s will, and recorded as such. During the pendency of this issue, *to*wit, at December term; 1853, of that Court, Mrs. Priscilla Windley had her dissent to the will entered of record, and afterwards, and before the same was admitted to probate, died intestate, and defendant R. M. Spier, was appointed her administrator.

The bill is filed by Oden and wife, George C. Rispass, John P. Rispass, and Ruel W. Jordan, against James Windley, the *443executor, who qualified, praying for an account, and for a decree for the payment of their legacies; Zachary Windley, Cannon D. Allen and wife Jerusha, Martha Topping, and R. M. Spier, the administrator of Priscilla "Windley, are also made parties defendant.

The answers of the several defendants raise these questions :

1st. Whether the dissent of Mrs. Windley to her husband’s will, is effectual?

2nd. Whether Zachary Windley and Jerusha Allen take, as legatees, under the residuary clause ?

3rd. Whether Ruel Jordan and his children are entitled to a share of the residuum ? and if so, whether each one of them comes in for an equal share, or whether they take one share between them.

4th. Whether the executor is entitled to commissions over and above his legacy.

5th. Whether, if Jerusha Allen and Zachary Windley are entitled to come in for a share of the residuum, they must bring in the property advanced to them by deeds of gift in the testator’s life-time, and confirmed to them by the will, before they can take such share.

There was replication to the answers, and the cause set down for hearing upon the bill, answers and exhibit, and sent to this Court by consent.

*Dodman,*for plaintiffs.

Donnell, for defendants.

PjíARSoet, J.

A widow, after the will of her husband is offered for probate, and while the proceedings are pending upon a caveat, duly enters her dissent; she dies, and the will is afterwards admitted to probate; is the dissent effectual ?

The object of the statute in requiring the dissent to be entered *“*within six months after the probate,” is to prevent the confusion and inconvenience that would be caused by a dissent after the estate had been settled and the property is *444banded over to the respective legatees. This object is answered fully, as well by entering the dissent when the will is offered for probate, or pending the proceedings on a caveat, as after probate is made; in fact, better than if it be not entered until the six months have nearly expired. That time is allowed for her benefit; she, consequently, may waive it, "We think the dissent is effectual.

'The circumstance that the widow died before the probate, if it has any effect at all on the question, rather tends to show that our construction is correct; for surely, the right of the widow ought not to be made dependent upon the accident of' her death during the time of a protracted litigation which the next of kin see proper to originate, by entering a caveat. To avoid this injustice, after the caveat proves to have been groundless, the probate" would, if necessary, have relation back to the term, at which it -was offered; indeed, for many purposes, the relation back is allowed. 4„

A widow’s dissent is not to be governed by the considerations applicable to her petition for a year’s provision. That is temporary; but dower, and a *reasonable part of the*goods, are fixed rights conferred by the ancient common law, and such a construction should be given to the statute as to maintain them, and they should not be cramped by a rigid construction, and sticking to the letter, when the object off the statute does not make it necessary. A widow to whom the will gives nothing, may dissent even after the six months. *Miller*v. *Chambers.*(This case is not reported, but is referred to in *Craven*v. Craven, 2 Dev. Eq. 338.)

2. Do Zachary Windley and Jerusha Allen, take as legatees under the residuary clauses, or are they excluded *%*They are certainly *“*legatees mentioned in the will,” and are consequently entitled to take under these clauses, unless there be something to exclude them. As they fill the description, in order to their exclusion, there must be some positive words expressing an intention to that effect, i. e., “ I give them one dollar each, *and they are take no more of my*estate.” *Nannock*v. Horton, *7*Ves. Rep. 391. We can see nothing in the *445will indicating an intention to make a difference between those children who had received property by deeds of gift, and those to whom specific legacies are given. The legacy of one dollar to each of these two children may as well have been inserted for the purpose of making them legatees, so as to take under the will, as for the purpose of excluding them from taking- under the residuary clauses. If he had given them five hundred dollars each, it would have made the former purpose clear. The smallness of the amount prevents any satisfactory inference one way or the other. We think they are entitled to a share in the residuum.

8. 'What interest does Enel Jordan and his children take under the residuary clause? A tract of land is devised to him for life, remainder to his children ; it is but a single legacy, the estate being divided, and they represent and take the share of *one*legatee in the residuum. It is true, they are all legatees; but in the sense in which the testator uses the term, they all constitute but one in the division.

4. Is the executor entitled to commissions over and above his legacy? We think he is. There is no intimation that the legacy was given in satisfaction, or in lieu of commissions.

5. If the widow is entitled to a distributive share, must Zachary Windley and Jerusha Allen bring in their advancements before they can take any part of the residuum ? We can see no ground for requiring them to bring in their advancements, as a condition precedent to taking a share in the residuum. What was given to them by deeds of gift, stands in this respect, on the same footing with what is given to the others under the will.

Fee CueiaM. Decree accordingly.