[Present, Chancellors Ruteedge, Jambs and Thompson.]

#### Mary Fraser, Caroline and Harriet Fraser, *vs.*Paul Hamilton, and others, Executors of John C. Livingston, and George, William, John & Alexander Fraser, Minors.

A devise “ of the residue oftestator’s property,” to be equally divided among the devisees, passes the fee simple in the real estate. The intention is manifest, and the words are sufficient: No words of inheritance or perpetuity are necessary in devises where the intent is plain.

THE bill of complainant set forth that the complainant Mary Fraser, is the only sister of the late John C. Livingston ; and that the complainants Caroline and Harriet Fraser, are daughters of the said Mary.

That John C. Livingston was seized and possessed of considerable estates in this state, and in Georgia: that he made his last will and testament on the 29th Sept. 1803, and died, leaving the same in full force. The bill sets *574forth the will, which among other things contains pecuniary legacies to the complainants and others, and a devise of all *“*^ rest óf his property” to be equally divided among his nephews .George, William, John and Alexander Fraser. That the executors haye proved the same, & qualified thereon, and have possessed themselves of the estates *;*and the complainants have applied to them for the payment of their pecuniary *legacies;*but the executors have refused payment on the ground that the profits of the estates have not yet been adequate to payment of the whole of the legacies. The bill further states that the complainant Mary Fraser, as heir of the said John C. Livingston, has applied for an ac-count of the ents and profits of the real estate, but that the executors have refused to account, on the ground that such real estate passed under the residuary clause of the will to the residuary devisees George, William, John and Alexander Fraser. The bill prays that the executors may *be*decreed to pay the said pecuniary legacies to the complainants, and account for the rents and profits of the real estate to the complainant Mary Fraser, and for other relief.

JUNE, 1808.

The defendants Paul Hamilton and John Bolton, executors of the late J. C. Livingston,

filed their answer to the bill of complaint. They admitted the facts charged in the bill of complaint, and submitted the case to the judgment of the court.

The answer of George, William, John and Alexander Fraser, by their next friend, states that defendants are ignorant of the matters alleged in the bill. Being infants of tender years, they submit themselves and their rights in their late uncle’s estate to the protection of this court. They pray to be dismissed with reasonable costs, &c.

The cause came to a hearing. The principal point was, the construction which should be given to the residuary dause of the testator’s will, by wrhich he “ devised his residuary property to.be equally divided among his four ne*575phews George, William, John and Alexander Fraser,” when they carne of age,

Mr. Gaxllard for the complainants,

contended that the devise by the tesiaicr of “ all the residue of his property” to his four nephews, without any words of inheri* tance, or perpetuity, could not carry away the fee simple of the real estate from the heir to the devisees. The heir is not to be disinherited w itheut plain words, which technically import a fee simple, or without a manifest intention distinctly expressed. The word estate has been allowed to carry the fee in a dévi'se *;*but the word property never has been construed to mean the fee simple estate in *th6*lands of testator. • And there is no other evidence of intention but these words.

By confining the words used in the will to the personal property, they would be satisfied.

Mr. DesaussURE for the defendants,

the residuary de-visees.

The will in question was drawn without the aid of counsel, and should be construed favorably. The great and acknowledged rule is, that the intention of the testator should prevail, unless inconsistent with some rule of law. The intention is manifest enough here, for the testator gives pecuniary legacies to his neices, and to his sister who is his sole heir, and then devises “ the residue of his property” to be equally divided among his four nephews. In common parlance, the residue of a man’s property, meatis not only the property itself, but the interest in it. The word property bas not yet indeed been construed technically tornean a fee, but as indicative of intention, it may well carry tbe fee ; and the words, to be equally divided among the devisees at 21 years, shew that the testator really meant to give tbe absolute estate.

The rule ought not to be so strict in this country as in England, for our statutes'have, almost in all respects, put real and personal estate on the same footing. See also the cases in 2 Black. 108. 3 Term Rep. 356. 4 Term Rep, 89. 3 Crancb. 97.

*576Chancellor Rutled ge

delivered the decree of the court»

When a man sets about making his will, it is to be presume¿ he means to dispose of the whole of his property, and not to die intestate as to any part of it, and that where he uses general words, he means to dispose of every thing he has.

In this cáse the testator, after giving several large pe» cuniary legacies, and devising some small parcels of lands he bequeaths to four nephews, named in his will, “ all the “ residue of his property, to be divided between them, when “ they come of age, ” There can be no doubt of testators intention in this case, to dispose of his whole estate real and personal; and there is no reason for confining the devise to personal property;, the word *property*being full as comprehensive as the word estate, and in Common parlance, includes both real and personal estate. The act abolishing the right of primogeniture has almost completely lev-elled all distinction between real and personal property. There is therefore no longer any substantial reason for the rigid construction and appropriation of certain words, as descriptive of particular species of property. The testator however in the last clause of his will has plainly defined his meaning of the word property, by disposing of the whole of his property to the Parish of St. Luke, for the benefit of the poor, if the deed therein mentioned is not carried into effect.

The court are of opinion that by the devise of the residue of his property, it is plain and evident that the testator intended to dispose of all his real and personal estate, to his four nephews, named in his will, and that such cle