#### Luke Mathis *vs.*C. B. Guffin and others.

The will, after certain specific bequests, directed the residuum, which included a tract of land, to be sold, and the proceeds divided so as to equalize the legacies. Probate of the will was rejected, because the executor was one of the attesting witnesses: *Held,*that it was a case of intestacy as well to the land as to the personalty, the will being one altogether of personal estate.

A direction by testator that his land be sold, out and out, and converted at all events into personalty, is a bequest of personalty. *Wilkins*vs. *Taylor,*Ap.

BEFORE JOHNSTON,„OH, AT ABBEVILLE, JUNE, 1855.

This bill was filed to sell the land of which Mrs. Isabella Mathis died seized and possessed. The said Mrs. Mathis left a paper purporting to be a will, which was refused probate by the Ordinary of Abbeville District, because James Carson, who was named as the executor, was also one of the subscribing witnesses to the said paper. After giving certain specific bequests of negroes to all her children, except her daughter Mary Hill, the said Isabella Mathis directed the rest of her estate, not disposed of, to be “sold and, divided in such manner so as to make each child’s portion equal, having regard to the value of the negroesand further declared as follows *i*“ As to the children of Samuel Hill, my grand-children, I give them nothing now, as their mother, my daughter Mary Hill, has had all her portion before.” The aforesaid residuum, in the paper purporting to be her last will and testament covered, among other things, a tract of land containing three hundred and sixty-five acres, which had been sold by a previous order of this Court — the equities of all parties as to their rights in the proceeds of the sale being reserved. The questions'were, *First,*was the will good *as to the tract of land*notwithstanding the executor attested it as a subscribing witness ? *and, second,*Even if the will was not good as to the land, whether the chil*80dren of Mary Hill were not excluded on account of advancements to their mother, Mary ?

The pleadings and exhibit having been read and argument heard, and the Commissioner having made his report that he had sold the land, and there being no exception to the same:

On motion of McGowan & Perrin, it was ordered that the said report of sale be confirmed.

It was further ordered, that the Commissioner do pay out the said proceeds of sale, as soon as collected, to the heirs at law of Isabella Mathis, deceased, excluding the children of Mary Hill, as follows, viz : one-fifth to Charles B. Guilin and Jane his wife ; one-fifth to Thomas M. Morrow and Sarah his wife ; one-fifth to Luke Mathis; one-fifth to William Mathis ; and one-fifth t.o Thomas E. Mathis; taking the joint receipt of husband and wife for any portion that may be going to a married woman, and that of the guardian of such as may be minors.

This order was made *pro*forma, at the close of the term, with a view to leave the matter open to an appeal by any party who might be dissatisfied with its operation.

The children of Mary Hill, deceased, appealed and moved to reverse so much of the circuit decree as excluded them from a share of the proceeds of the sale of the land, upon the grounds—

1, Because all the estate of Isabella Mathis is intestate ; the paper propounded for probate-being adjudged invalid as a will, is insufficient to pass real estate by devise.

2, Because the paper, if held valid to alienate realty, by its terms converts the land into personalty, Avhich, as such, becomes intestate, when probate of the paper was refused.

3, Because there is error in the circuit decree excluding the *81children of Mary Hill, deceased, from a share of the proceeds of the sale of the real estate of Isabella Mathis, deceased.

*Thomson ft Fair,*for appellants.

*McGoiven,*contra.

The opinion of the Court was delivered by

Dun kin, Ch.

The case of *Wilkins and Wife*vs. *Taylor,*decided by this Court at Charleston, Spring Sittings, 1847, *(a)***is entirely conclusive upon the point submitted by the second ground of appeal.

It is ordered and decreed that the decree of the Circuit Court be reformed, and that the children of Mary Hill, deceased, be admitted to a share in the proceeds of the real estate of Isabella Mathis, deceased, according to the provisions of the Act of Assembly for the distribution of intestates’ estates.

Daug-an, Ch., concurred.

JohNSTon, Ch. I concur in the result.

*Decree reformed.*

(a)

 See Appendix.