#### *Ferris Pell and Mary Anna, his wife, Albert Sumner and Catharine S. his wife, Complainants,*vs. *E. O. Ball and T. Waring, Executors of Hugh Swinton Ball, deceased, Elias Nonus Ball, Augustus*Taveau, *Martha Caroline Taveau, his wife, William E. Haskell, Susan S. Haskell. Eliza L. Simons, Lydia C. Waring, wife of T. Waring, John Laurens, Caroline Laurens, Caroline Ball, Isaac Ball and Alwyn Ball, Defendants.*

1. H. S. B. executed his will on the 4th May, 1835, and devised as follows : “ *Should I die without leaving issue, I give and bequeath to my beloved wife, the said A. E. B. all the property, personal and real, that I received, or may receive hereafter, frqm her father's estate, or from any of her relations, and sources owing to my marriage with her, independent of my oion property, to do with and dispose of as she pleases."*Testator died in June, 1838, leaving bis wife surviving, hut leaving no issue. Both the testator and his wife were minors at the time of their marriage. The father of Mrs. B- having died previously to. their union, one T. B. became their guardian, and on the 29th Oct. 1829, shortly after Mr. B. attained his majority, accounted with him, and paid over to him the funds which had come to his hands. Subsequently, Mr. B. received large sums of money from the estate of his father-in-law and mother-in-law, part of which was paid him before and part after the date of his will. Between October, 1827, and July, 1829, the guardian received in cash, frona the administrator of Mrs. B’s. father, the sum of $45,608 70 ; and on the date last mentioned, had received in further payment from the administrator a mortgage, then amounting, principal and interest, to $4500. Retaining the mortgage, the guardian invested qf the cash received by him, the sum of $10,885 13 in shares in the United States Bank, and deposited the residue in the Massachusetts Hospital, Life Insurance and Trust Company. On the 29 Oct. 1829, (as before stated,) he delivered to him the mortgage, paying him the interest and dividends on the bapk shares and deposites,, then assigned. On 31st Oct. 1830, Mr. B. collected th.e money due on the mortgage, principal and interest. On the 5th Nov. 1829, a few days after the deposites were assigned to him, he drew them out, and re.-deposited them, with a small addition in his own name, making the sum of $35,000.. Of this latter sum, on the 20th of April, 1832, (before the date of-his will.) he drew out $10,000 ; and on the 20th May, 1835, after the will, drew out the residue, investing it in various stocks, changing them from time to time by sale and the purchase of others, and receiving the dividends as they accrued, until his death.

*492. Testator kept a book, in which under the head, “ *memorandums of bank stocks and their value, when purchased”*are many entries of stocks, all purchased after the date of his will. These stocks, when disposed of, were marked *sold;*and notice is taken of the manner in which they were reinvested. The investments were always in stocks, except $1250 paid for furniture, and other stocks invested in a house. On eyery page was a remark to this effect, subscribed by the testator. *The slocks enumerated in this page belong to my wife, though they stand in my name.”*The last entry of this description was: *“ The stocks enumerated in this gage belong to the property of my wife, A. E. B. though standing in my name ; H. S. BP*At the end is added *also, the house in Newport, cost*$8,0QQ ” These entries were made from time tp time as the stocks were purchased, sold and replaced. There were certain stocks whiph remained unspld at the testaT tor’s death.

3. It was *held,*that the rnemorapdum book kept by the tepfedpr was inadmissible in evidence, to shew that the stqcks remaining undisposed pf constituted the property to which the testator intended to refer in his will, inasmuch as it did not ascertain a subject for the operation of the will, suiting to what the will described.

4. Extrinsic parol evidence Gannot be received to show an intention on the part of a testator, which his written will does not express; and the same is as true on principle of extrinsip written evidence.

5. *Held,*that evidence to shew the nature and extept of the property received by the testator, in consequence of his marriage, was admissible.

6. If the will be not of a specific thing, but of something to be ascertained by some test contained in the instrument, it can only be determined by evidence, whether the subject ipatter conforms to that test. ***

7. Property is a general term to designate the right of ownership, ’and includes every subject, of whatever nature, upon w}iich such a right can legally attach'. It is pot necessary that the subject of it should be either lands, goods or chattels, for it extends to money and securities. Vide 6 Binney, 98; Cowper, 299 ; 11 East, 370 ; Public Laws, 147.

8. The words *real and personal,*used by the testator, lay no just ground for supposing that he thereby intended to restrict — as the words themselves, in their legal import, do not restrict the property to things tangible.

9. Also *held,*that the legacy to Mrs. B. was pecuniary, for the amount received, and to be estimated by excluding frpm the pomputafion all the income and interest which accrued aftpr the receipt by thp guardian or by the testator.

10. ’Whether a legacy is specific op not, must necessarily depend upon the nature of the thing referred to and described in the will. Jf the thing *50be capable of individuality, as a ring or a picture; or if it be an assemblage of things, as a library or a cabinet; or something capable of being separated by sensible distinctions, as the property on a particular estate ; in all such cases, the descriptions in the will set forth with distinctness the subject of bequest, and 'make it specific. But this is only because specific things alone can answer to the description given.

11. Whether a bequest couched in general terms is specific, or otherwise, depends on this; if the things falling within the terms, when enumerated, (or if they had been enumerated by the testator,) are in their nature specific, then the legacy is specific; otherwise, it is not.

.12. The words *u property, personal and real"*may, in a secondary sense, extend to money, conceding that in their primary meaning they include only lands, goods and chattels.

13. Where a testator has used the words in which he has expressed himself in their strict and primary sense, but his words, so interpreted, *are insensible with, referenee Lo extrinsic circumstances,*a Court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words bé sensible in any secondary sense, of which, *with reference to these circumstances,*they *are capable.*

Hugh Swinton Ball was married to Ann Elizabeth Channing, at Boston, on 8th March, 1827. Both he and his wife were then minors, and without a father living. Thomas Barclay, Jun., was appointed guardian of the young married people, and during the minority of Mr. Ball, received from Mr. Channing’s administrator the sum of $50,108 70, which he paid over to Mr. Ball, after he had attained the age of 21 years, on 29th October, 1829. Some small sums were afterwards received by Mr. Ball himself, from the administrator of Mr. Channing, making the personal estate which came to Mrs. Ball, as one of her father’s distributees, $51,124 93

Between September, 1828, and October, 1835, Mr. Ball received from sales of Mr. Channing’s real estate in Rhode Island, for his wife’s share, ' 3,797 14

And in 1831 and 1833, from sales of real estate in New York, 9,247 82

And from Mrs. Channing’s estate, 31st May, 1833, a legacy of 3,000 00

*51Besides this amount, received from Mr. Barclay as interest on the funds in his hands, 3,917 95

$71,187 84

On the 4th May, 1835, Mr. Ball made his will, in which, among other things, he gives as follows : “ Should I die without leaving issue, I give and bequeath to my beloved wife, the said Anna Elizabeth Ball, all the property, personal and real, that I received, or may receive hereafter, from her father's estate, or from any of her relations, and sources owing to my marriage with her, independent of my own property, to do with and dispose of as she pleases; but should I leave a child or children, the said property will be disposed of in manner as hereinafter mentioned, she however to enjoy the interest during her lifetime.”

After giving some legacies, the testator proceeds: “ Should I leave no issue, that is, a child or children, I order and wish the nett proceeds oí the crops of my estate to be disposed of in the following manner: After having paid my debts, (fee., one half of the clear or nett profits to be given to my beloved wife, Anna Elizabeth Ball, during her natural life, for her sole use and benefit; the other half to be equally divided between my brothers, Alwyn and Elias Octavus Ball, until my nephew7 Elias Nonus Ball is of age, after which period I bequeath the said half to him, or in case of his death, to the next eldest of my brother Elias Octavas Ball’s sons, and their issue. Should the said Elias Nonus Ball leave a son or sons, they will have precedence to the sons of the others. Should my wife die before the said Elias Nonus Ball is of age, then the w7hole income from her decease will be divided between my aforementioned brothers, until Elias Nonus Ball is of age, or the next eldest in. the event of his death, leaving no son or sons. * * * *

But in case I die leaving issue, I leave my property in the following manner: If only one child, the whole of my wife’s property, at the death of my said wife, and the whole of my property when he or she attains the age of twenty one, my wife to have half of the income until that period, and her son or daughter the other half; if more *52than one child, I order my whole estate, personal and real, (not including my wife’s,) to be sold when my eldest child is of age, or sooner, if my executors think it advantageous to do so, and the money to be equally divided and paid to them Respectively, as they become of age-. And at the death of my wife, 1 bequeath them an equal portion in her property.”

At the date of making this will, the only property that could be designated as that which Mr. Ball had received hi right of his Wife, Was $25,000, in the Massachusetts Hospital, Life Insurance and Trust Company, which he drew out and disposed of on the 20th May, 1835, sixteen days after the date of his will, and $1,787 50, for his Wife’s share of Real estate in Rhode Island, belonging to her father, Which the heirs had sold, and which he received on the 17th October, following.

On the 2d April, 1836, the testator wrote a codicil to his Will, in his owti hand, by which, in the event that he and his wife should die together, and she make no disposition of her property, he gives ail her property to his adopted daughter-, Emma Ball, and concludes with these words: “ This codicil, however, is only good-, provided my wife should make no disposal of the property she is entitled to: If she survive, she has the right to do so ; if she neglects to Will away her property, this codicil will hold good, in the event of her dying intestate.

B. S. Ballj [l. s.]

“ As the above involves ho real estate, I concluded witnesses unnecessary-. (See Grimke’s Law of Executors.”)

The testator kept a book of accounts. UndeR the head Of meihorahdum of bank stock, and their value when purchased, are many entries of stocks purchased. The first entry relates to stock in ÑeW Orleans Commercial Bank, purchased 1st July, 1835. The statements are continued through Several pages, and the stocks When disposed of, aRe marked sold, and notice is taken of the manner in which the money was re-invested. The investments are always iú óthér stocks-, except '$1,250 paid for furniture in Newport, and OtheR stocks, price not mentioned, invested in á house in Newport. And on every page there is *53a remark to this effect: “ The stocks enumerated in this page belong to my wife, though they stand in my name.” At the end is added : “ Also, the house in Newport, Rhode Island, cost $8,000.” The only stocks not sold, are 100 shares in the American Life, Insurance and Trust Company, Baltimore; 100 shares in the Farmer’s Loan and Trust Company, New York, and 25 shares in the bank of Charleston.

Alwyn Ball died 1 June, 1835. Hugh Swinton Ball, and Anna Elizabeth Ball, his wife, and Emma Ball, perished in the Pulaski, 14th June, 1838. And Mrs. Ball survived her husband.

On the 12th Juné, 1840, it was referred to Mr. Gray, one of the masters of the Court, to take an account of the estate, real and personal, of which Mr. Ball was possessed at the time of his death, and of the debts owing by him; of the property he had received in right of his wife, distim gúishing between income and capital, how received and how invested, and what remained in his possession ; and also to inquire and report the particulars of Mr. Ball’s fortune that did not come to him by marriage.

Mr. Giay’s report sets forth the particulars as to the property herein before mentioned, and states that Mr. Ball, after his marriage, but while a minor, received his share of his father’s estate, amounting to $75,000. That he purchased the house in Newport, and a house in Charleston, after the date of the will, and that his estate at the time of his death amounted to $196,818 69, and his debts to $25,545 72.

Ferris Pell and Mary Anna his wife, with Mrs¡ Barclay, administered on the estate of Mrs. Ball. Mrs. Pell and Mrs. Barclay, (now Mrs. Sumner,) are the sisters, and next of kin, of Mrs. Ball, who left no issue, nor father or mother, surviving her.

The bill states, Mr. Ball died without issue, and besides his widow, left surviving him, his mother, Mrs. Taveau, wife of Augustus Taveau, his brother Elias Octavus Ball, his sister Susan E. Haskell, wdfeof William E. Haskell, Eliza Lucila Simons, wridow, Lydia Catharine Waring, wife of Thomas Waring, John Laurens and Caroline Lau-rens, infants, son and daughter of a deceased sister, Caro*54line Laurens, Caroline, Isaac and Alwyn Ball, son and daughter of his deceased brother, Alwyn Ball, his next of kin; and also, his nephew, Elias Nonus Ball, mentioned in his will.

The object of the bill of complainants wms to obtain an account, settlement and distribution of the estate of H. S. Ball, dec’d.

The case was heard by'his Honor Chancellor Dunkin, 16th June, 1840, who made the following decree.

Dunkin, Ch. By the decrees heretofore pronounced, it was determined that Mrs. Ball survived her husband, and that the complainants were entitled to all her interests, as well under the will of her husband, as by the statute of distributions.

The only question of difficulty, arises under the first clause of the will, in which, after an absolute bequest of furniture, and certain family negroes, to his wife, Anna Elizabeth Ball, the testator declares as follows, viz:— “ Should I die without leaving issue, I give and bequeath to my beloved wife, the said Anna Elizabeth Ball, all the property, personal and real, that I received, or may receive hereafter, from her father’s estate, or from any of her relations, and sources owing to my marriage with her, independent of my own property, to do with and dispose of as she pleases ; but should I leave a child or children, the said property will be disposed of in manner as hereinafter mentioned, she, however, to enjoy the interest during her life time.” And after other provisions in regard to his estate, it is said: *“*But in case I die leaving issue lawfully begotten, I leave my property, real and personal, in the following manner, to wit: If only one child, the whole of my wife’s property, at the death of the said wife, and the whole of my property when he or she attains the age of twenty-one; my wife to have half of the income until that period, and her son or daughter the other half; if more than one child, I order my whole estate, personal and real, (not including my wife’s) to be sold when my eldest child is of age, or sooner, if my executors think it advantageous to do so, and the money to be equally divided, and paid to them *55respectively as they become of age. And at the death of my wife, I bequeath them an equal portion of her property.”

The testator died without leaving issue, and the question is, what passed to the wife, on this event, under the clause which has been in part recited. The inquiry is, perhaps, solved, by determining the character of the legacy.

Mr. Roper distinguishes legacies into *general*and *specific.*But the former are so commonly applied to money, that many authors divide legacies into *pecuniary*and *specific.*The distinction may or may not be important, according to the circumstances of the case. If the legacy be general or pecuniary, it must be postponed to specific legacies, and must abate or become extinguished on a deficiency of assets, but it is a general charge on the testator’s estate. On the other hand, a specific legacy, although preferred to general legacies, is not subject to debts until general legacies have been exhausted; can only be demanded, so far as ihe thing given can be identified, and is subject to extinction by the destruction of the thing, or to deterioration or improvement in value by any change it may undergo.

A specific legacy has been defined to be “ the bequest of a particular thing, or money, specified and distinguished from all others of the same kind ; as of a house, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest, with the assent of the executor.” “A legacy is general, when it is so given as not to amount to a specific part of the testator’s personal estate ; as of a sum of money generally, or out of the testator’s personal estate, and the like.”

These definitions do not very much aid the inquiry; the object is to ascertain what was the intention of the testator, and in prosecuting the investigation, it is the duty of the Court to expound the will, if possible, without resorting to extrinsic evidence. In 1 Yes. Jun. 285, it is said that “ *external*evidence as to the state of the testator’s property, cannot be admitted to control what would be the legal import and effects of the terms of the bequest, upon a fair construction of the whole will, without collateral aid.” *56And in *Innes*vs. Johnson, 4 Yes. 574, the master of the rolls says that “ if upon the face of the will, the legacy is to be presumed not to be specific, I ought not to travel into the account of the effects, to turn it into a specific legacy.” He afterwards adds that “ if he saw a ground for holding the legacy specific, he should then be obliged to see whether the effects of the testator afforded any foundation for it.”

Looking then to the language of the will only, what construction shall be given to the terms, “ all the property, personal and real, that I received, or may hereafter receive, from her father’s estate,” *&c,*it is not very material, perhaps, whether the popular meaning of the term “ property,” is correctly stated in *Stuckey*vs. *Stuckey,*1 Hill Ch. R. 309 ; nor is it necessary to determine whether it may not be sometimes construed to pass money,' or choses in action ; but in the ordinary acceptation, it cannot be doubted that “ all a man’s property, personal and real,” refers to something tangible and *'in esse-.*— it may be lands, negroes, stock, any thing, perhaps, which he can call *his.*When the terms occur in a will, the first inquiry would be, where is the property, personal and real, to which the testator referred. If he gave to his youngest son all his estate, personal and real, in the parish of A., it would not be contended, that on the face of the will, the right of the son could extend beyond the real and personal estate found in that parish ; in other words, that the entire legacy was not specific. But the terms are, “ all the property, personal and real, which I received, or niay hereafter receive,” «fee. It is not perceived that this affects the construction. It is equivalent to the expression, “which came into his possession.” When the testator uses the language, “ should I die without leaving issue, I give and bequeath to my beloved wife, all the property, personal and real, that I received, or may hereafter receive, from her father’s estate, <fec., independent of my own property, to do with and dispose of as she pleases,” it would be inferred, without looking beyond the will, that the testator had property of his own, which he had not derived from any sources owing to his marriage ; that he had also other property, personal or real, or both, which he had so derived; and *57that he thought it not improbable that more would come into his possession from similar sources. He leaves to his wife absolutely all the property, personal and real, which had been so derived, independently of his own property. On the clause itself, it would be difficult to say that this was not a specific bequest, a bequest of a particular part of the testator’s estate, specified and distinguished from the rest of his estate, and which he purposed at his death to pass differently from his general estate.

But it is proper to refer to the whole instrument, in order to ascertain the intention of the testator. In a subsequent part of the same clause, he provides for the event of his death, leaving issue : “ I leave my property, real and personal, in the following manner, to wit: If only one child, the whole of my wife’s property, (fee.; if more than one child, I order the whole of my estate, personal and real, (not including my wife’s,) to be sold when, (fee., and the money to be equally divided, (fee.; and at the death of my wife, I bequeath them an equal portion of her property.” The context confirms the impression derived from the language of the original clause. If the property which he had received from his wife’s father, had been lands and negroes, which the testator had employed with his own, the construction would seem obvious and palpable. But it would also appear to the Court, the natural construction without reference to extrinsic circumstances. Taking the whole paper together, and looking to nothing else, the Court would infer, that at the date of the will, the testator had in his possession real and personal property, received by his wife, which was capable of being distinguished from the rest of his property, and which he desired to pass to her, independent of the provision which he made for her out of his own - property. This constitutes a specific bequest. It is a gift of specific property, and must follow the fate of that property. It is necessary to look into the condition of t.he testator’s effects, at the date of his will, or at his death, in order to create a difficulty as to the correctness of this construction. But this is not a case in which such evidence is admissible to aid the Court in giving construction, much less to control the apparent construction. The Court must, if possible, find the interpretation in the *58will alone. The language of the will admits a construction-which the Court thinks natural, and not doubtful. To authorize a different construction, and give any other character to the bequest, it would be necessary to ingraft words not now existing in the will. In examining the books, the Court has been unable to find any case in which a legacy has been declared pecuniary, or a general charge on the estate, unless a sum of money was expressed, or terms used which plainly referred to a money value, as the amount, proceeds, (fee. Questions have commonly arisen out of bequests of a sum of money, in connexion with the funds in which it was invested, or out of which it was payable, as a bond, bill of exchange, stock, policy of insurance, (fee.; and the doubt presented was, whether the testator intended to give the sum of money, or the security itself.

If, in this case, the bequest had been of the amount or value of the property, personal and real, which the testator has received, <fec., it might have been contended, with great force, that the testator had no reference to the specific property, but only to the pecuniary value, and mentioned the property merely as the measure of the pecuniary legacy which he wished to bequeath. But when the language is, “ all the property, personal and real,” how can the Court say, that on the face of the will, the testator did not mean the property, but the pecuniary value of the property *1*Giving to the term property, the most comprehensive meaning that could be desired, must not the word real be struck out, or other words inserted, in order to warrant a construction which would convert this into a pecuniary bequest'? If the complainants had demanded the wdrole of the testator’s property, real and personal, and identified it, as received from the estate of his wife’s father, could these words be ingrafted, in order to place his wife on a footing with pecuniary legatees ?■ The complainants would have a right to stand on the integrity of the bequest, and resist the introduction of any extrinsic testimony which would throw doubt on the construction.

A testator may give a pecuniary legacy, payable out of^ certain stocks, or perhaps described as the amount of certain stocks, *Raymond*vs. Broadbelt, 5 Yes. 109 ; but if he *59mentions no sum, and merely bequeath the stock, or all his stocks, it would hardly be contended, that the legatee was entitled to the value of the stocks, or that he was entitled to any thing, if the testator had no stocks at the date of his will, or had subsequently sold them, and spent the proceeds. In 1 Rop. Leg. 163, it is said, that although the form of the bequest be of a sum of money, in a particular species of stock, if it dearly appear, from reference made to the stock, by additional expression, that it alone was intended to be the subject of disposition, the legacy will be specific, as if the words were, £500 in my stock of 3 per cent. Consols, 4 Ves. 750; or £500 which I now have in Navy 5 per cents. In *Humphreys*vs. *Humphreys,*2 Cox. 184, testator bequeathed to A. and B. “all the stock *which I have*in the 3 per cents, being about £5,000, except £500, which I give to C.” Lord Thurlow decided that the stock which the testator had was specifically given, so that there was an *ademption pro*tanto, in consequence of his having sold £2,000, part of it. And in *Fontaine*vs. *Tyler,*9 Price Exc. R. 94, it was held that a legacy may be specific, although the testator was not possessed of it at the time of making of his will, but of which he may be possessed at his death. In *Nesbitt*vs. Murray, 5 Ves. 150, after certain dispositions of lands and slaves in the Island of Jamaica, testator gave the residue of his real and personal estate, in the said Island, to trustees, to sell, and remit and lodge the proceeds, and all other moneys belonging to his estate, in safety in England ; which proceeds and moneys, he bequeathed in sums currency, to several persons. It was determined, that the Jamaica property was specifically bequeathed. Nor is it always necessary, in order to render the legacy specific, that the security itself should be given. It is sufficient if it clearly appear, that the money due on that security was intended to be the sole'subject of the gift. An illustration is stated in 1 Rop. Leg. 173. A bequest to B of “ the money due to me on the bond of A,” which is specific, “ because (says the author) nothing is given distinct from the identical money and interest secured on the bond of A.” And in *Fryer*vs. *Morris,*9 Ves. 360, Sir William Grant held the legacy to be specific, where the testator bequeathed “to B. all such *60sum and sums of money as my executors may after my death receive on the interest note of £400, given to me by Messrs. Cook *&*Co.” In *Smith*vs. Fitzgerald, 3 Yes. and Bea. 2-5, the distinction is adverted to, between a bequest of a precise sum of money, with reference to the fund out of which it is payable, and a bequest of the fund or security itself. The legacy may be of about the value of the fund, but sti.l, says the Judge, “ a gift of a sum of money, though with ever so plain a reference to the amount of the fund, is very different from the gift of the fund itself, with all the chances of the actual amount.” Applying the principle of these cases to the clause under consideration, the legatee is entitled, not to any sum of money, but to the “property itself, with all the chances of its actual value.”

It has been already stated, that questions have usually arisen on bequests in form pecuniary, but which, from other expressions of the will, might be regarded as specific. But it may be well questioned, whether the term pecuniary, can, in any sense, be applied to the provision herein made. It is, in its terms, not a pecuniary legacy, but a bequest of general personal estate; and it may be added, of real estate. A devise of real estate is necessarily specific, so distinctly specific, that in *Howe*vs. *The Earl of Dartmouth,*7 Yes. 137, it was contended (though without success,) that a bequest of general personal property was specific, because included in the same sentence with a devise of real estate. A bequest of general personal estate, will be specific or not, according to the intention of the testator, as deducible from the language used. A bequest of all the testator’s personal estate, is, in its terms, a general legacy. On the other hand, a bequest of all his personal estate in a particular parish, or house, or in the hands of a particular person, is specific. The inquiry always is, whether that which is given, is distinguished and separated from the general estate, and specifically bequeathed, and capable of being delivered, in specie, so that the legatee can say to the executor, deliver to me all A’s. personal estate, at C., or in the particular house, or parish, for I am entitled to received it in specie. T Hop. Leg. 184. Applying this description to the terms used in this bequest, and looking only to the will for the *61construction, might not the legatee, on the death of the testator, demand all the property, personal and real, which the testator had received from the relatives of his wife, and insist that she was entitled to receive it in specie'? If it could be identified, it would seem that possession of the land must be forthwith given, and the personal property transferred on the assent of the executor. The facility or difficulty of the proof, cannot vary the construction of the bequest. It would be not more an answer, that the stocks had advanced in price, than that the land was improved in value. The legatee is entitled to the property given. That is certain, which can be rendered certain. Property received by the testator’s wife, can be as well identified as personal property in a particular house or parish. But this point has received the consideration of our own Courts. In *Warren*vs. *Wigfall,*3 Dess. R. 47, the words of the bequest were, “ I leave her (meaning testator’s wife,) the whole of the property that she brought me, (except John and Maurice,) to her and her heirs forever.” Chancellor Besaussure held this to be a specific legacy. The cause was carried to the Appeal Court, but on this point the decree was affirmed. “ Dpon considering these words, (says the Chancellor,) and the cases’cited, I hav*e no doubt that they constitute a specific bequest, and this construction is strengthened by the other circumstances of the case. It is true, that the general leaning of the Court is against considering legacies as specific, because of the consequences, (fee. But if the words clearly indicate an intention to separate the particular thing bequeathed from the general property of the testator, this will make it specific, and shall prevail.” After commenting on the cases cited, “ apply (says he) these doctrines and authorities to the bequest to the wife, and it is manifest that it is a specific legacy. £ The whole of the property that she brought me,’ is plainly indicative of an intention to separate the thing bequeathed from the general property of the testator ; and it is easy to ascertain what the wife did carry in marriage to the testator. The maxim *‘id certum est quod certum reddi*potest,’ applies decisively to this case,” (fee. The Court agree with the counsel, that the exception of the two slaves, by name, adds to the force *62of the argument in favor of the construction adopted by the Chancellor. But this circumstance does not seem to have been adverted to in the discussion or the decision, nor, in the opinion of the Court, was it necessary, in order to sustain the judgment.

Regarding the legacy then as specific, on the face of the will, it is proper, in the language of *Innas*vs. Johnson, to look into the effects, to see if there any foundation for the conclusion may be found. “Although extrinsic circumstances should not be resorted to, in order to give construction to the will, it is proper to inquire into them, with a view to the manner in which the property should be disposed of.”

If, in the examination of the testator’s effects, nothing can be found at his death, which would answer the description of the bequest, however much the result might be regretted, it is the misfortune of the legatee- — he can take nothing. It could not, vary the construction, which must depend on the will itself, if it speak a language susceptible of a plain interpretation. If the testator bequeath his parade horse to A, and he has no horse, or afterwards sell his parade horse, the legacy is gone. And so I suppose of a specific’légacy of general personal estate. If the testator bequeath all his personal property in the parish of A, and he should have no personal estate in that parish, or should sell a portion of his negroes there, and spend the money, the legatee would take nothing, or the legacy would abate *pro*tanto, as the case might be. If, *in Richardson*vs. *Richardson,*Dudley’s Eq. Rep. 184, the bequest to the wife had been of “ all the ready money in his house,” the legatee could not claim any sum which was in his house at the date Of the will, but only that which was there found when the will spoke, to wit, the death of the testator. If, on the other hand, the intention be plain to give something, the Court will aid any misdescription of the thing given, nor will it suffer a slight change to work an ademption.

The testator having made a specific bequest to his wife of “ all the property, personal and real, which he had received, or might hereafter receive, from her father’s estate,” <fec., the inquiry to be prosecuted is, what part of the estate left by the testator can be brought within this description. *63And the inquiry is not so much, what in fact answers the description, but what the testator intended to include in that description. He may call his white-horse, grey, yet if he have but one horse, “ the mistake,” says Mr. Roper, 151, “ is obvious, and easily remedied, and the legatee will be entitled to the specific horse, although not of the color described, for there can be no doubt of that being the horse intended for him, and the legacy will be specific.” And so on a change of stock, by the testator, the newly purchased stock has in some cases been held to pass; although in *Stanley*vs. Potter, 2 Cox, 180, Lord Thurlow said, that the question in such cases (of ademption,) did not turn on the intention of the testator, and that the ground of proceeding in the *animus redim,endi*had introduced confusion. “ Where the testator gives a specific chattel in specie, the ademption follows, of course, on a sale or change or destruction of the chattel, and the ademption becomes a rule of law, and not a question of intention.” How far this position may be sustained, it is not important now to inquire. But it may not be improper to add, that this opinion was afterwards cited with approbation by Sir John Leach, in 1 Madd. R. 174.

In conformity with the decretal order, heretofore made, the master has reported a statement of the property received by the testator, on account of his marriage, both before and after the date of his will. He also states the condition of his estate, real and personal, at the time of his death. It does not appear, at this latter period, any part of the estate could be identified as strictly and specifically property received from the sources indicated in this clause of the will. From the statement of Walter Channing’s real estate, it is not quite clear whether the whole of that estate had been sold at the date of the will, or in whose possession it then was. A part of the proceeds of sale must have been received subsequently. .

The will bears date 4th May, 1835. A book was given in evidence, which is in the hand-writing of the testator, and is particularly noticed in schedule E. of the master’s report. The question of the admissibility of this testimony, was elaborately discussed. The objection was chiefly urged by the counsel of the complainants. Butin the view *64taken by the Court, this evidence is essential to the maintenance of their claim, under this portion of the will. It was necessarily incumbent on them to show what property the testator had received from the estate of his wife’s father, (fee. This they have done satisfactorily. It consisted principally of United States 6 per cent stock, shares in the United States Bank, a mortgage of one Packwood, and certificates of deposit in the Massachusetts Hospital Life Insurance and Trust Company. It may be remarked, that these certificates are like notes of the Company, bearing a certain interest, and are an ordinary mode of safe investment. He had also received real estate and moneys to a considerable amount. In identifying this property in the hands of the executors, the complainants were less successful. Neither the stock, certificates of deposit, nor perhaps any part of the estate, remained in possession of the testator at his death, and the cash could not of course be identified. The complainants then must look further. A book is produced in the hand-writing of the testator, commenced probably soon after the date of the will, which, it is suggested, points to what the testator regarded as included in that description, and sufficiently identifies the subject of the bequest. It is necessary then to examine the principle which was adopted *in Pulteney vs. Lord Dar-lington,*1 Bro. C. C. 222, and recognized by Lord Eldon, in *Druce*vs. *Denison,*6 Ves. 383, as now settled law.

The effect of the decision in the former case, was to disinherit the heir, to take from her £23,000, which were *prima facie*real estate, and to which she would have been entitled in the event of General Pulteney’s intestacy. On the death of Lord Bath, the steward, Mr. Garden, had drawn up, (for the use of General Pulteney,) a state ofliis property, and in that account all that was personal then, and that could be claimed as part of the trust fund, was stated as personal property. This was shown to the General. It was contended, that he acted on this representation in making his will, and that it was admissible testimony, to show what he meant. The cause was originally heard by Lord Bathurst, who received the testimony and dismissed the bill of the heir, and this was a re-hearing before Lord Thurlow. ( The Lord Chancellor says, in *65pronouncing his judgment, “ If it is real estate, it is not disposed of by the will of Harry Pulteney, *eo nomine,*which he has done, if it is to be considered as personal estate. If he meant to give it as personal estate, it will be sufficient; it must go as such; and I hardly know any thing that is not sufficient to show such an intention. It was argued, says he, that evidence *dehors*the will, ought not to be admitted to weigh in construction of it, but the question did not turn upon his will. The question principally is what presumption arises, as to his intention, from the acts he has done.”'

In the course of the argument, it was allowed by the counsel of the complainant, (afterwards Lord Roslyn,) that the question rested on the acts of Gen. Pulteney. “ I admit,” says he, “ that it was in the power of Gen. Pulteney to say of this, let it be land, or let it be money. But if there was no act done to show what the intent was, with respect to changing the nature of the property, the Court will expect as great certainty, to disinherit an heir in this case as in every other.” And he insisted that the view of Garden’s paper, was only to show Gen. Pulteney the income. The description used there is not engrafted in the will. “ It is necessary, in order to take away the interest of the heir at law, to produce evidence of acts of Gen. Pulteney, to shew an intent so to do; without the testator’s marking such im-tent, it must continue land.” All the authorities were reviewed by the *Lord*Chancellor, who finally concurred in opinion with Lord Bathurst, and held that the bill had been rightly dismissed.

*Dr me and Denison*was decided by Lord Eldon, about twenty years after *Pulteney*vs. *Lord Darlington.*The testator by his will, dated 26th Nov. 1792, made provision for his wife, and in a subsequent clause disposéd of the residue of his real and personal estate. A question arose whether property which belonged to the testator’s wife, and would have otherwise survived to her, passed under the terms “my personal estate,” and thus compelled the wife to an election. A paper in the testator’s hand-writing was found after his death, in a box of his papers in his chamber, together with his will, entitled thus: “Statement of my property, 26th Nov., 1792, when I made my *66will.” He then enumerated his free hold, copy hold, and lease hold estates, including those of his wife, «fee. In discussing the admissibility of this paper, as evidence, Lord Eldon refers to the cases, and especially notices the judgment of Lord Thurlow, in *Pulteney*v. *Lord Darlington.*He says, that if that decision stood nakedly on the ground that the steward had put down as personal estate, that which was *prima facie*real estate, and sometime after receiving the account, the testator had made his will, it was very strong to say, that therefore the testator had the same idea as the steward, and that he must have used the terms in the will, in the same sense as the steward had used them. “But,” proceeds he, “the circumstance to which I advert is, that, *de facto,*that paper was admitted in evidence, and that is a judgment of this Court, upon the admissibility of evidence, and that judgment recognized in the highest place.” And he then adduces the authority of Lord Alvanly, in *Hinchcliffe*v. Hinchcliffe, 3 Ves. 530, as pursuing this rule.

But whatever doubts Lord Eldon may intimate, as to the use which had been made of these decisions, he expresses his entire concurrence with the judgment of Lord Thurlow, in *Fonnereau*vs. *Poyntz,*1 Bro. C. C. 477, and says that “it does not carry the old cases upon parol evidence, one tittle further than they ha,d gone.” In that case Lord Thurlow held it to be a clear proposition, that “every evidence as to the description of the subject the testatrix had described, must be admitted, as in the case of a specific legacy ; you must hear evidence concerning the subject to which the will applies, in order to see whether the description applies aptly or not. It is impossible to deny that the statement of her fortune is external evidence, «fee. And this seems not irreconcilable with what is afterwards stated as the law of the Court, that the intention of the testatrix, making a specific bequest, a pecuniary bequest, cannot be controlled by the statement of her fortune.” Neither her declarations at the time of making the will, nor statements of her fortune, are admissible for this purpose. “But,” says the Lord Chancellor in *Druce*vs. *Deni-son,*“Lord Thurlow looked at the property, in order to prove what she meant; the will proving that she meant to *67give something, but the description of the subject not being intelligible. That was not contradicting any description in the will. It was not saying that was the personal estate of the testatrix, which was not her personal estate; but that she meant by these words what .she might be taken to mean; because upon the words, attending to the different species of stock at the Bank, it could not be ascertained what species she did mean; it being clear that she meant some.” Without regard to the authority of *Pul-teney*vs. *Lord*Darlington, and *Hinchliffe*vs. Hinchliffe, (which, however, he held to be conclusive,) Lord Eldon doubted whether in *Druce*vs. *Denison*the paper ought *not to be*admitted, on principle, and without any violation of the rule as to parol evidence, which he held that to be. The paper was admitted, and the testator declared to have well bequeathed his wife’s property, as his own personal estate.

By the will of Mr. Ball, he bequeaths to his wife “all the property, personal and real, which he had received or might hereafter receive from her father’s estate.” A paper is offered in evidence, in the hand-writing of the testator, marking, it is said, the subject of the bequest, purporting to shew what he might be taken to mean. In the language of *Fonnereau*vs. Poyntz, the testator “has described the property he intended to give. Every evidence as to the description of the subject the testatrix has described, is admissible.” You must hear the evidence, in order to judge of the description. Not, whether in a strict legal, or even ordinary acceptation, the description is accurate, for that is comparatively unimportant, in ascertaining the intention ; but whether from the acts and conduct of the testator, he must have regarded this as an apt description, and used the language in that sense. As if in *Pulteney*vs. *Lord*Darlington, the testator had himself made the written statement, in which the property was classed as personal estate, which would be otherwise held realty; and in *Druce*vs. Denison, the acts of the testator treating his wife’s property as his own. The book submitted, cannot be called a regular book, but it is certainly of a higher character than any loose paper. The testator was a planter, not a merchant, a man of business. The book was *68kept by himself, contains important entries on other matters, and affords indubitatble internal proof, that some of the entries, at least, were made after much care and deliberation. The caption of the first page, relating to this subject, is “memorandum of Bank Stocks, and their value when purchased. The stocks on this page are the property of my wife, although in my name. (Signed) H. S. Ball.” On the subsequent pages on the same subject, the caption varies but little. The stocks are said to “belong to my wife, Anna E. Ball,” or “belong to the property of my wife* Anna E. Ball.” It is probable that the first or original entries on this matter, were made at different periods, between 26th June, 1836, and 9th March, 1836, certainly prior to 1st June¡ 1836. The aggregate original price paid by the testator, Was about $29,832. The first investment thus entered, was made a few weeks after the date of the will. At that date, (4th May, 1835,) the testator held, in the Massachusetts Hospital Company, $25,-000, being part of an amout which had been received from the guardian of his wife, on 5th Nov., 1829, and re-deposited the same day in his own name. On 201 h May, 1835, he drew out this sum, and in June and July, invested in stocks enumerated in this book, $23,550, which was, prior to 10th March following, increased by other investments to $29,832. All these investments are described by the testator, as “the property of my wife, although in my name.” The Court may err in some of the calculations, but not so as to affect the inference. These stocks were in no respect the property of the testator’s wife, except so far as he thought proper to make them so. She had no separate estate-. They were his property, although they might very well be regarded by him as property which he had received in consequence of his marriage. The only apparent object, then, of making these entries, was to indicate what property the testator regarded as received by his wife, and which he looked upon, for certain purposes, as different from his own, and which he intended to pass to his wife, under his will, independent of the provision he had made for her out of his own property. It is difficult to illustrate this matter without reference to the book itself. But if these entries, and these stocks, had remained at the *69death of the testator, as they originally stood, it appears to the Court that the right of the complainants to demand them, as a specific legacy, could only have been successfully resisted by violating established principles of evidence.

But it is said that this is not all the property received by the testator’s wife, that the testimony proves other property to have been received, and it is insisted that not onj ly ail the moneys, slocks, real estate, (fee., received by the testator from the estates of the father and mother of his wife, but also all interest, dividends, rents, (fee., received by the testator down to the period of his own death, must pass under this clause, in order to satisfy the bequest. And with this view, an account has been taken of what was so received. In passing, it might be remarked that there would be some difficulty in conceiving that the testator intended to include dividends, rents, interest, <fec., which he had from time to time received ; that he would have left this provision for his wife to depend on the proof she might be able to make, from receipts to various individuals, in other States, Corporations, Courts of Justice, (fee., as to what he had at any time received; and this, too, when the book kept by himself shewed his anxiety that she should not be put to such difficulty, or be so restricted. It is impossible, however, to conjecture what might or might not pass, if the Court may look beyond the will, for the purpose supposed ; and it is a subject of congratulation that the Court regaids itself relieved, by the principles of the' law, from this embarrassing inquiry. In the view taken by the Court, evidence of the amount received by the testator, is inadmissible. The terms of the bequest do not, on their face, constitute a pecuniary legacy. The Court cannot look beyond the will for its interpretation. The language imports a specific bequest; whether it be of a specific chattel, or a specific bequest of general personal property, is immaterial. In either case nothing passes but what can be found at the death of the testator to answer the description. The inquiry only is, not what might have been embraced in those terms, but what of the property so bequeathed, could be identified by this description at the death of the testator. It is not like a covenant *70standing upon articles, or the case of a trustee called to account. For the purpose of verifying the description, any evidence is admissible, but not for the purpose of shewing that all could not be identified which the clause purported to give, and thence to change the character of the bequest, and convert what on its face is specific, into a general legacy. The paper left by the testator, marks property which may answer the description. With that object, it is admissible. If the stocks there specified, had, at his death, been double in value the amount which could be proved to have been received by his wife, the Court would hold this testimony sufficient to mark the subject of the bequest, and carry the stocks to the legatee. The book is not offered as satisfying the full terms of the bequest, but only to shew what could be found to answer the description.

Before dismissing the subject, the Court would remark on a circumstance which would rather warrant the inference that the testator was not unaware that his wife could take under the clause only what could be identified, or what he had so characterized as to include in the description. The deposit in the Massachusetts Hospital Company, on 5th Nóv. 1829, has been already noticed. The original sum was $35,000. On 20th April, 1832, the testator drew out $10,000. He had, in November previous, commenced building Mepshew House, which, with the out-buildings, cost him, according to his statement in the book, $10,362. By his will, Mepshew House and 40 acres of land surrounding it, are devised to his wife, without limitation, unless he should leave issue. Whereas, the provision for his wife out of what he might regard as his own property, is, with some unimportant exceptions, restricted to a life interest. The inference is not unlikely, that the testator spent the money drawn from the Massachusetts Hospital Company, on the Mepshew House and improvements. It was not spent at one time, and he might not call it an investment of the fund, or suppose that it could be so construed or regarded by others. But in his will, he places this devise on precisely the same footing. The inference may or may not be well founded. It is only suggested to shew that the testator may have well *71apprehended that his wife could only take, under this clause, property which could be identified, and he therefore secured the Mepshew House, (fee., which had probably been purchased with these funds, by a special provision of his will.

Certainly the case is not free oí difficulty. After much consideration, the Court is quite conscious that any view which may be presented, is obnoxious to criticism. But the conclusion of the Court is, that the terms of the will imply a specific bequest; that to include within this bequest the income received by the testator, and other moneys not capable of being identified, would be, not to construe the instrument by itself, but to make a will for the testator, which he did not make-for himself, and which he probably never intended to make; that, under this clause of the wdll, and on testimony adduced, the complainants are entitled to all the property, refil and personal, included in schedule E, of the master’s report, which was found at the death of the testator, and to nothing more.

Several very grave questions might have arisen, as to the effect of the several changes through which the property specified in schedule E passed, after the execution of the will, and more especially as to the real estate purchased in Rhode Island, after that period. But these objections were not pressed, nor argued, at the hearing, and the Court understood them to have been waived by the defendants, it may be only necessary, therefore, to say, that the Court does not regard these changes of the property as having constituted an ademption. See *Ashburner*vs. McGuire, 2 Bro. C. C. 108, and *Patridge*vs. Patridge, Fonb. 226, cited in *Wig fall*vs. *Warren.*

The law of Rhode Island was not brought to the view of the Court. If, by the statutes of that State, subsequently acquired real estate would not pass, and lands would not go to the same persons, as in South Carolina, a difficulty might arise, for which the Court can only provide when it is distinctly presented.

In regard to the complainants’s first exception to the master’s report, the Court concurs in the view of that officer. It is true that the defendant, Elias. O. Ball, and perhaps the defendant Thomas Waring, who are executors, had *72an interest, in common with several other persons, in the main question. But it is not every intere,st which, in the opinion of the Court, will deprive an executor of the right to charge a counsel fee paid by him, An executor may be, often is, one of the next of kin. May he not pay for disputing an ancient debt, or any other doubtful claim, but at his peril, at the risk of refunding such payment, if the debt should be established, and the assets prove insufficient ! It must be a question for the sound discretion of the Court, under the circumstances of each particular case. The defendants, as executors, held a large fund, which they might well hesitate how to distribute. The complainants’s claim rested on the alleged survivorship of Mrs. Ball; according to the opinion of the Court, heretofore pronounced, it was their province to establish the facts on which the right was to be sustained. The *bonajides*with which the claim was resisted on the part of the executors, is not questioned. Had the question been differently determined, one of the executors, in right of his wife, the other in his own right, would, in the event of a surplus, after payment of debts and legacies, have been entitled to a portion of the residue. It does not seem to the Court, that this is such an interest as would render them litigants at their own hazard. If they had omitted to defend the estate, unwilling, for a contingent interest, to incur the risk, it is not unlikely that as executors, they might have been held responsible to those who could have proved themselves injured; and shall they now lose the whole amount of what is admitted to have been judiciously paid, because of their contingent interest! The establishment of such rule would, in the judgment of the Court, be rigorous in itself, and would discourage the faithful discharge of fiduciary responsibilities. The report on the general account of the executors is confirmed.

It is further ordered and decreed, that Elias O. Ball and Thomas Waring, executors of Hugh S. Ball, deceased, transfer to the complainants, the legal representatives of Mrs. Anna E. Ball, one hundred shares in the Farmers Loan and Trust Company, New York ; one hundred and twenty-four shares in the American Life Insurance and Trust Company, Baltimore ; and twenty-five shares in the Bank of Charleston, being property of the testator, derived *73from his marriage with Mrs. Ball, and remained undispos-ed of by him; and that they also pay to them the sum of nine hundred and two dollars and eighty-five cents, being the amount sales of the furniture sold by the executors in Newport, with interest from the sale. And that they also surrender possession of Mepshew house and the forty acres of land devised to Mrs. Ball.

It is further ordered, that the executors apply the proceeds of the twenty-five shares of the new stock of the Bank of Charleston, purchased with the crops of the estate, and also the sum of two thousand seven hundred and fourteen dollars, (and the interest thereon,) now deposited in the Charleston Life Insurance and Trust Company, arising from the sales of the testator’s books, wine, *<&c.*to the payment of the testator’s bond secured by the mortgage of the Cannonsborough house and lot; and from the crops, pay off the remaining debts of the testator, as directed by his will; that they also make a permanent provision for the payment of Mrs. Tavéau’s annuity, of three hundred dollars during her life.

It is further ordered, that the Cannonsboro’ house and lot be sold by Mr. Gray, one of the masters, at such time and on such terms as the solicitors of the parties may fix, and the proceeds be divided in equal moieties, between Mrs. Taveau or her trustee, and the complainants, who are the heirs at law of Mrs. Anna E. Ball.

It is further ordered,- that after the payment of the debts, and provision made for the annuity aforesaid, from the crops of the estate, the executors pay one half of the crops, as they shall accrue, to Elias O. Ball, until Elias Nonus Ball attain the age of twenty-one years; and the other moiety be equally divided between Mrs. Taveau, or her trustee, and the complainants. And it is finally ordered, that when Elias Nonus Ball shall have attained the age of twenty-one years, parties shall be at liberty to apply under this decree for such other orders and proceedings as may be necessary and proper for carrying into effect the principles heretofore established.

From so much of the decree as restricts the devise of all the property, real and personal, which the testator had re*74ceived, and might afterwards receive, in right of his wife, to a legacy of the stocks, furniture and house, which testator designated in his account book as the property of his wife ; and also from so much of the said decree as directs that the crops of testator’s estate shall be distributed between the complainants, and Elias O. Ball, and Caroline Taveau, until Elias Nonus Ball become of age, and that the parties shall be at liberty to apply for further directions, the complainants appeal, and hope the same may be reversed, for the following among other reasons.

1. That when the testator made his will, he had received in money about seventy thousand dollars, in right of his wife, and he received a small sum in money afterwards ; and that, therefore, the effect and meaning of words employed by the testator, amount to a legacy of the money so received, and can be satisfied in no other way; and that this conclusion is not inconsistent with the argument, that if Mrs. Ball’s fortune had come to her husband’s hands in other things besides money, the words of the will would have operated as a specific legacy of those things; for such a change of circumstances would have changed the subject of the legacy.

2. The parol evidence contained in testator’s account book, cannot be allowed to control or contradict the words of his will, by substituting a small part of the whole of his wife’s fortune, when the expressions of the will plainly require the whole.

3. That the testator died intestate as to the moiety of his estate, and that the complainants are entitled to have their part of that moiety, being one half of the same, assigned to them. And in case the circumstances of the estate require it, a sale should be ordered for a settlement and partition.

The executors appeal from so much of the decree of his Honor Chancellor Dunkin, as directs them to apply twenty-five shares of the new stock of the Bank of Charleston, purchased with the crops of the estate, and also the sum of $2,714 deposited in the Charleston Insurance and Trust Company, arising from the sale of the testator’s books, wine, (fee., to the payment of testator’s bond secured by *75mortgage of the Cannonsboro’ house and lot, and move that the same be reformed. Because, as they respectfully submit, the said order is founded on mistake of fact apparent from the accounts on which the master has reported. In fact, no shares in the bank of Charleston were purchased with the crops of the estate, but twenty-five new shares in the said bank were purchased with funds of the general estate and charged to the general account. And there is no sum of $2,714 deposited with the Insurance and Trust Company, arising from the sale of books, wine, (fee. The sum of $4,596 51, arising from the sale of the furniture, (fee. in Charleston, was deposited with the said Company on the 19th December, 1838, and another sum of $3,579 40, from the sale of furniture, books, wine, (fee. at testator’s country house, was deposited with the said Company on the 5th February, 1838, both which had been withdrawn and disbursed before the date of the report on which the cause was heard.

From so much of the decree as directs the executors to make provision for the annuity of Mrs. Taveau, *out of the crops*of the estate, as they accrue, before paying to the defendant, Elias O. Ball, one half of the said crops, the said defendant appeals, and moves that the same be reversed. Because the said annuity is not charged by the will upon the crops, but is payable out of the undevised residue of the testator’s estate. . The defendant, Elias O. Ball, is entitled, as a specific legatee, to one-half of the crops after payment of the testator’s debts alone, and the effect of the decree is to make his specific legacy contribute one-half of the annuity, instead of throwing the whole upon the residue. If the annuity is to be paid out of the crops at all, it ought to be out of the moiety to which the complainants and Mrs. Taveau are entitled as intestate property.

*Curia, per*Johnston, Ch.

There are but three or four questions in this case, the principal of which arises under the following clause in the will of the late Hugh S. BaU.

*Should 1 die without leaving*issue, *I give and bequeath to my beloved*wife, *the said Anna Elizabeth*Ball, *all the**76property, *personal and real, that I received, or may receive hereafter, from her father's estate, or from any of her relations, and sources owing to my marriage vnth her, independent of' my oim property, to do with and dispose of as she pleases.*

The will was executed the 4th of May 1835, and the testator died in June 1838, leaving his wife surviving, but leaving no issue. The plaintiffs claim, through the wife, the provision thus made for her; and the question is, what is the extent of that provision. It appears from testimony taken by the master that the testator married the daughter of the late Walter Channing, of Boston, who died previously to the marriage. Both husband and wife being minors at the time of their union, which took place the 8th of March 1827, Thomas Barclay, Jun. became their guardian ; and on the 29th of October 1829, eleven days after Mr. Ball attained majority, accounted with him and paid over to him the funds which had come to his hands, amounting, principal and interest, to something over fifty thousand dollars. Subsequently, Mr. Ball' received large sums of money from the estates of his father-in-law and mother-in-law, which, coupled with what he had already received from his guardian, exceeded seventy thousand dollars ; part of which sums, collected by Mr. Ball himself, were paid him before, and part after, the date of his will. The amount paid him by Mr. Barcley, the guardian, arose in the following way. The guardian had received, in cash, from the administrator of Mr. Channing, between the 8th. of October 1827, and the 21st. of July 1829, the sum of $45,608,70; and on the day last mentioned, had received in further payment from the said administrator, a mortgage on one Packwood, then amounting, principal and interest, to $4,500. Retaining the mortgage, the guardian invested $10,885,13, of the cash received by him, in shares in the U. States Bank; and deposited the residue, ($34,723,57,) on interest in the Msssachusetts Hospital, Life Insurance and Trust company. On the 29th of October 1829, as before stated, he delivered the mortgage to Mr. Ball, and assigned the bank shares and deposits to him, and paid him the interest and dividends thereon. On the 31st. of March 1830, Mr. Ball collected the money due *77on the mortgage, amounting, at that time, principal and interest, to $5,190,70. In the mean time, to wit, on the 5th of Nov. 1829, seven clays after the deposits in the life insurance and trust company were assigned to him, he drew them out, and redeposited them, with a slight addition to make the round sum of $35,000, in his own name. Of this latter sum he drew out $10,000, on the 20th of April 1832, (before the date of his will;) leaving $25,000 on deposit. On the 20th of May 1835, sixtéen days after the will, he drew out the whole of the said $25,000. This sum he invested in various stocks, which he changed, from time to time, by sale and the purchase of others, receiving the dividends, as they accrued, until his death. A book kept by him was given in evidence ; in which, under the head *memorandums of bank stocks, and their value when purchased,*are many entries of stocks, all purchased after the date of the will: beginning with an entry of stock in the New Orleans Commercial Bank, purchased the 1st of July 1835. The statements are continued through several pages, and the stocks, when disposed of, are marked *sold,*and notice is taken of the manner in which the money was reinvested. The investments are always in stocks, except $1250 paid for furniture in Newport, and other stocks (price not mentioned,) invested in a house in Newport. And on every page is a remark, subscribed by the testator, to this effect: *The stocks enumerated in this page belong to my wfe, though they stand in my name.*The last entry of this description stands at the head of page 11, and is as follows: Dec. 12, 1836. *The stocks enumerated in this page belong to the property of my wife, Anna E- Ball, though standing in my name, H. S. Ball.*At the end is *added:*— Also *the house in Newport, cost*$8,000. These entries appear to have been made, from time to time, as the stocks were purchased, sold and replaced. The only stocks remaining unsold at the testator’s death, are: 100, shares in the American Life Insurance and Trust company, of Baltimore, purchased June 1st, 1836; — 25 shares in the Bank of Charleston, purchased March, 9th 1836; — and 103 shares in the Farmer’s Loan and Trust company, of New York, purchased August 16th 1836.

The Chancellor, holding the provision made for Mrs. *78Ball to be specific, and seeing that not a vestige remained in specie of all that the testator received in consequence of his marriage, felt himself constrained to reject the evidence shewing its amount and value. On the other hand, upon the authorities quoted by him, he admited the book kept by the testator, as evidence that the stocks remaining un-disposed of constituted the property to which the testator intended to refer in his will. The appeal makes the question whether either of these classes of evidence is admissible in the case before us.

It must be allowed that the view taken by the Chancellor, in his judgment, is very strong: and it has been supported here with much ingenuity and learning, by the defendants’s counsel. But it appears to us that principles well settled in law and founded in reason; principles indispensable to the execution of testaments according to their true intention, necessarily conduct to a different result. The distinction between the two classes of evidence before mentioned, seems to be this : The one is intended to ascertain the thing actually described in the will; the other is intended to shew by extrinsic evidence that the testator intended by his will to refer to a thing which his will does not describe. The one is employed in finding a subject for the operation of the will; which subject, when found, is taken hold of and operated upon, by the very terms of the will itself. The other is employed in proving an intention on the part of the testator different from that expressed by him as testator; to wit, that he intended that the terms of his will should embrace a subject matter which they do not describe. This latter kind of evidence is wholly inadmissible. It sets aside the will, and substitutes extrinsic evidence in its place.

If cases can be found countenancing such a practice, they are as much opposed to the current of decisions as to principle and to reason. The cases upon the authority of which the book kept by the testator was admitted, seem to us to be of doubtful application to the point before us; if, indeed, their authority has not been too much shaken to leave them for safe guides, even within the narrow limits of the particular subjects upon which they were decided. *Druce*vs. *Denison*(6 Ves. 385,) was a case where extrinsic evi*79dence was admitted to prove that by the words *my personal estate,*the testator meant personal estate subject to a power: but this testimony was received for the specific purpose of raising an election, and the decision applies only to cases of that description. (See Wigram’s examination, 39, prop. 2, pi. 48, 49, 3d Lond. edition ; and Sug. on Powers, 385, 3d. edit.) It is evident from his observations, as reported, that Lord Eldon admitted the evidence, even for the purpose of raising a case of election, with great hesitation — as bowing to authorities which he felt it his duty to follow, rather than as'being satisfied that, upon the rules of evidence, as formerly understood, the proof could be received. Besides, “it may be questioned,” says Mr. Wigram, “whether Lord Eldon has not since repudiated the decision attributed to him by the report of that case in Vesey. *See,per*Lord Eldon in *Doe exdem. Oxenden*vs. Chichester, 4 Dow. 65; and see *Blomart*vs. Player, 2 Sim. and Stu. 597; and *Dummer*vs. *Pitcher,*2 Myl. and K. 262.” *Pulteney*vs. *Darlington,*(1 Bro. Ch. C. 223,) was much doubted by Lord Eldon in *Druce*vs. *Denison.*But whatever opinion may be formed of the correctness of the point decided, it forms no precedent for the admission of the book kept by Mr. Ball, as declaration of the meaning of his will. For the purposes of this case, the case of *Pulteney*vs. *Darlington*may be briefly stated thus : Lord Bath, as executor of Henry Guy, being in possession of money and stocks which were directed to be laid out in the purchase of real estate, to be settled upon Geni. Pul-teney, remainder over, (fee. mortgaged certain real estate to the General as security for his, Lord Bath’s, laying out said money and stocks in lands, and settling them to the uses of Guy’s will. Those entitled in remainder having all died, and all the uses having centred in Geni. Pulteney, Lord Bath died, leaving a last will by which he gave his whole estate, real and personal, to the General, and appointed him his executor. Then Geni. Pulteney died, leaving his real estate, by particular description in his will, ty Mrs. Frances Pulteney, who was his heir and the heir general of the family. His money, securities for money, and personal estate, he directed to be laid out in lands, to be settled on Lord Darlington, whom he appointed execu*80tor. The bill was brought to have the personal estate of Guy, formerly in the hands of Lord Bath, laid out in lands, to be conveyed to Mrs. Pulteney in fee; upon the principle that money directed to be laid out in lands, must, in this Court, be considered as land ; and that the personalty belonging to Guy’s estate, which had come to the hands of Geni. Pulteney, must be regarded in the light of realty, and did not pass, under the description of his personal estate, to Lord Darlington. The question was, whether the fund received, in the shape of personalty, by the Geni, who was the only person interested in the execution of the direction to lay it out in land, passed, as personalty, under his will, or retained the impression of realty given to it by the will of Henry Guy, and was liable to be invested in land for the benefit of Mrs. Pulteney, who was the heir as well as devisee of Geni. Pulteney. There were two points in the case: 1st. whether the General had not, by his acts, elected to take the personal fund, as personalty, in satisfaction of the interests he had under Guy’s will: — and under this head the evidence spoken of by the Chancellor was offered: — the 2d. question was, whether the fund was not, in the hands of Geni. Pulteney, *at home,*as the cases express it, (see 1st. Bro. Ch. C. 238, note,) and liable to go according to the quality in which it was left by him at his death. Lord Thurlow said, “where a sum of money is in the hands of one, without any other use but for himself, it will be money, and the heir cannot claim. But, whether that is clearly so or not, circumstances of demeanor in the person, (even though slight,) will be sufficient to decide it.” “I have no doubt, upon all the cases, that the slightest intention *to take it as money,*would make it so.” “It was argued that evidence *dehors*the will ought not to be admitted in the construction of it. *But the question does not turn upon the toill.*The question principally is, what presumption arises as to his intention from the acts he has done.” “I am of opinion with Lord Bathurst, that the money, under the circumstances, continued money.”

It appears pretty clearly from this statement, that the evidence was not admitted to enlarge or otherwise control the words of the will: — but to rebut an equity claimed *81*by*Mrs. Pulteney to take a subject matter of bequest clearly within the testamentary description, out of the range and operation of the will, by imputing to it a new and merely ideal character. The case is, therefore, no precedent lor admitting evidence for the purpose of extending the wTords of a will from things described to things not suiting to the description. The fault of the evidence ad-, mitted in the present case is, that it does not ascertain a subject for the operation of the will suiting to what the will describes. The evidence introduces property said to belong to the wife, (which, by the way, was in no sense her property:) the will calls only for property received by the husband from the wife’s relations. These stocks were never received in that way. They may be the result of the husband's speculations and labors, based upon capital which was so received. But even here the evidence fails. It is not declared in the memorandums that they are the product of what the husband received. Not only does the evidence not declare that the stocks are what the husband had received ; or that they constitute *all*that he received; or that they are the product of the property received: — • the fact is manifest that they had no existence at the date of the will, and could, by no possibility, have been referred to in the will as that which the husband had then received. They come to his hands after the execution of the instrument; but they do not come within the description of property received from the wife’s relations; and, therefore, in no view that can be taken, do they fall within the operation of the will. If this memorandum book had never existed, it is not easy to perceive why the particular stocks enumerated in it should be selected as falling within the description or meaning of the testator ; any more than any other property in which he may have happened to vest the funds received by him in consequence of his marriage. And if not, then it is not by virtue of what the testator has said *in*his will, but by reason of what he has said *out*of it, in the book entries, that it is to operate specifically on this property. What is this but to make the book, and not the will, the real testament *1*To make the evil of admitting this evidence more palpable: is it not apparent that the will might have been made to extend to almost *82any other property in the custody of the testator as well as to these stocks, and to a larger or smaller amount of property, according to the entries which accident or caprice might have led the testator to make'? If the testator had stopped at his entries of 1835, the stocks there enumerated would have constituted the exclusive subject of bequest: or if he had been cut *off*at the first entry for 1836, that would have determined the operation of his will: so that his testamentary intention would have varied from day to day, although the words in which he had expressed it remained unchanged. This, it is conceived, would subvert the soundest and best established principles. It is said, (and correctly,) says Mr. Wigram,* that the statute, by requiring a will to be in writing, precludes a Court of law from ascribing to a testator any intention which his written will does not express; and, in effect, makes the writing the only legitimate evidence of the testator’s intention. “No will is within the statute which is not in writing: which is as much as to say, that all that is affectual and to the purpose must be in writing, without seeking aid of words not written.” *Brett*vs. *Rigdon,*Plow. 340; and see 2 Vern. 625; Hobart, 32; and *Hiscocks*vs. Hiscocks, Wigram, Pl. 183. What is said here respecting extrinsic parol evidence, is as true, on principle, of extrinsic written evidence. What the intention of the testator was, in purchasing and keeping an account of these stocks, or in designating them as stocks of his wife, we can only conjecture ; nor is it necessary to ascertain it: the duty of the Court being to discover and execute the intention expressed in the will, and not in the memorandums. But it may well be conceived that the testatator was engaged in accumulating convenient means for satisfying the legacy left to his wife; and if he had lived he might have made ample provision for doing so. Be his object what it might, the book cannot be admitted to declare the intention of his will: nor is it at all certain that he desired that it should; since in his memorandums there is no reference whatever to his will.

*83The next question is, whether the evidence to shew the nature and extent of the property received by the testator, in consequence of his marriage, was admissible. I do not hesitate to express the beleif, that no case can be found, where evidence to ascertain the existence of a subject matter, suiting to the description contained in the words of a will, was ever rejected. Such evidence is absolutely indispensable to the execution of all testamentary papers; and is habitually and uniformly resorted to. Nor is it confined to wills; it is received in every case, whatever be the form of the instrument. The identity of the thing granted or devised, can be ascertained in no other way. The identity of the person to whom the gift or conveyance is made, is ascertained by precisely the same kind of evidence. Thus, where a testator or grantor gives to his eldest son, the tract of land or the slave which he bought from A., and the conveyance becomes the subject of dispute, how is the dispute to be determined but by proof that the claimant is or is not the eldest son of the benefactor, and that the land or slave falls within the description *1*And if the will be not of a specific thing, but of something to be ascertained by some test contained in the instrument, it can only be determined by evidence whether the subject matter conforms to that test. Here, the testator declares his intention to give *all the*property, *real and personal, that he had received or might afterwards receive, &c.*Whatever falls within the description *oí property, real or personal,*and was at any time *received*by him from the sources indicated in his will, must pass under the will, or his intention will be defeated. Nothing can be forced into the legacy which is not included within the legal import of the word *property;*nor any property which the testator did not *receive*from his wife’s relations, either before or after the date of his will; but *all*the property thus received is clearly given.

Property is a general term to designate the right of ownership ; and includes every subject, of "whatever nature, upon which such a right can legally attach. It is not necessary that the subject of it should be either lands, goods or chattels; for it extends to money and securities. For the import of the term, see 6 Bin. 98 ; Cowp. 299; 14 East, 370; Pub. Laws, 147. As to its popular meaning, we *84speak familiarly of a man of property, and the value of his property, without, at all, distinguishing whether it consists in lands, slaves, stocks or money. If any stress is laid upon the words *personal*and *real,*used by the testator; the employment of these words lays no just ground for supposing that he thereby intended to restrict — as the words themselves, in their legal import, do not restrict, the property to things tangible. They included every species of property or right. And when we see that the testator bequeaths not only what he had already received, — the nature of which he might know ; but, also, all the property he might afterwards receive from any relation of his wife, — the precise nature of which he could not possibly foretell, — we have reason for supposing that these words, *real*and *personal,*were superadded to the word *property,*not for the purpose of restriction, but *by*way of giving it its most enlarged signification, and to indicate his intention that all property, of whatever description, thus received, should pass under the bequest. What the testator received before the date of his will, must, in the absence of an enumeration of it by him, be ascertained by evidence; and what he received afterwards, and could not enumerate, can be ascertained in no other way.

It has been argued, that this legacy is specific ; and that, therefore, the evidence cannot be admitted. But in such a case as this, — where the bequest is in terms of general description, — it is a.perversion of the proper order of inquiry to discuss the class or grade of the legacy, before the subject matter of it is ascertained. Before it can be pronounced that a legacy is specific, it must be ascertained what is given. Whether a legacy is specific or not, must, necessarily, depend upon the nature of the thing referred to and described in the will. If the thing be capable of individuality, as a ring or a picture ; or if it be an assemblage of things, as a library or a cabinet; or something capable of being separated by sensible distinctions, as the property on a particular estate; in all such cases, the descriptions in the will set forth with distinctness the subject of bequest, and make it specific. But this is only because specific things alone can answer to the description given. But where, as in this case, the terms of the will are general, it is impossible to determine whether the bequest is specific, *85or otherwise, until you ascertain the nature of the things falling within the general description; — and, then, the legacy is specific, general or pecuniary, according to the nature of the things themselves. It may be safely affirmed, I think, that whether a bequest couched in general terms is specific or otherwise, depends on this; if the things falling within the terms, when enumerated, (or- if they had been enumerated by the testator,) are in their nature specific, then the legacy is specific ; otherwise it is not. As the testator here has not enumerated the property he had received, and could not enumerate what he should after-wards receive, how are we to know what he did receive, until we learn it frorn the evidence *1*Suppose he had received a family of slaves at one time from one of his wife’s relations, can there be any doubt that they would pass, specifically, under this will *1*Suppose he received a sum of money, at a different time, from another relation, is there any reason why this should not pass, as a pecuniary legacy'! Now, the fact that he had received property from different family connexions at different times, and might receive other property, the nature of which was necessarily unknown to him, from various other relatives, at various, times, was the very reason which led the testator to employ the general terms used by him in his will; and no reason is perceived why the character of his legacy should' be limited by the Court, when he did not limit it himself. The intention here was to give what the testator received, or should receive. If what was received was in part specific and in part pecuniary, the will, .in fulfilment of the testator’s expressed intention, must operate accordingly; but in order to ascertain, this, the evidence must be heard. This evidence establishes that every dollar received by the testator himself, and by his guardian for him, was in money. The only apparent exception -was Packwood’s mortgage ; but that was received by the guardian in place of money, and was so passed over to him. The effect is that this is a pecuniary legacy for the amount received ; which is to be estimated by excluding from the computation all the income and interest which accrued after the receipt by the guardian or by the testator, as the case may be. The capital sums received are alone to be accounted for.

*86Let it be conceded, however, that the words *property, personal and*real, in their primary meaning, include only lands, goods and chattels, as is intimated in the decree, upon the authority of *Stucky*vs. Stucky, (1 Hill C. R. 309,) still it will not be doubted, that in a secondary sense, they extend to money. Then, the cases quoted by Mr. Wigram, and to which I refer, sustain his third proposition, (page 42,) that where a testator has used the words in which he has expressed himself, in their strict and primary sense, but his words, so interpreted, *are insensible with reference to extrinsic*circumstances, a Court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any secondary sense, of which, *with 'reference to these circumstances,*they are capable. If one who had in fact received nothing but *money*from a particular source described by him in his will, should bequeath *theproperty*he had received; his intention could not be that the legatee should take no benefit ; — but must be that he should take that kind of property which he, himself, had received. Now this is what Mr. Ball has done; and his legacy is, therefore, pecuniary. In receiving this testimony, and giving this' construction to the will, we are placing ourselves, (to use the words of Mr. Wigram, p. 64, pi. 76,) in the situation of the testator, and leaving the words of the will to their natural operation ; (see, also, his 5th proposition, and the cases cited, with his remarks and references.)

The other grounds of appeal were not argued, but appear to be plain. The ground taken by the executors seems to be well founded ; and must be sustained. That taken by Elias O. Ball, is also well founded. The annuity of Mrs. Taveau is not charged by the will upon the crops; and the provision for its payment should be made out of the residue of the estate, before resorting to them.

Let the decree be reformed according to the foregoing opinion; afid let an account be taken of the different legacies; deducting such payments as may have been made, by the executors, thereon ; and let an inquiry be made as to the means of discharging them, and wíiat provision should be made therefor; with leave to the master to report any special matter ; and with leave to the parties to appiy *87for further directions; and also, for the sale of any property of the estate which it may be necessary to sell, for the more easy execution of the testator’s will; for which purposes let the cause be remanded to the Circuit Court.

Petigru, Legare and Seldler, for complainants.

Mazyck, Memminger, and DcSaossure, contra.

Johnson and Harper, Chancellors, concurred.

*

Wigram’s examination of the rules of law, respecting the admission of extrinsic evidence, in aid of the interpretation of wills. 3d. Lond. edit. p. 8, Pi. 9: and see same author p. p. 132, 146; Pl. 177, 182.