#### MARY MITCHELL vs. ESTHER MITCHELL & al.

A devise of “ all my property of any nature or kind whatsoever, which deeds, papers and moveables will shew,” can, by no intendment nor construction, be taken to indicate an intention in the testator lo devise the land, which belonged to his wife.

This was a petition for dower, originally filed in the Court of Pleas and Quarter Sessions of Gates county, and taken thence by appeal to the Superior Court of Gates, where it was heard at Spring Term, 1840, before his honor Judge Pbarson. The petitioner claimed to be endowed of a tract of land, of which she alleged her late husband John died seized and possessed, and which he had held as a tenant in common with the defendant, Esther Mitchell. Esther Mitchell in her answer denied that John Mitchell ever was seized of the said land. It appeared, on the hearing, that the land in question belonged to the defendant, Esther Mitchell, previous to her intermarriage with her late husband, Richard Mitchell, and that she had not made any conveyance by which she had parted with her title; that the said Richard Mitchell died some years before his son John, and that lie had made a last will and testament, executed in due form of law to pass real estate, and which had been admitted to probate in the proper court. In and by the said will, among other things, he devised and bequeathed as follows: “ After paying my just debts, legacies and expenses, I leave all the balance of my property of any nature or kind whatsoever, which deeds, papers and moveables will shew, to my wife, Esther Mitchell, and her heir, John Mitchell.” The personal property bequeathed by this clause was equally divided between the said Esther and John, and they both continued to reside upon the land in question, from the time of the death of Richard Mitchell until the death of John Mitchell.

The Judge below being of opinion, that by taking the personal property bequeathed to her in the will, the said Esther had elected that her land should pass by the devise in the *258will, that thereby John Mitchell acquired an equitable inter-herein, of which by our act of Assembly of 1828, (1 Rev. St. c. 121, s. 6,) his widow might be endowed, gave judgment for the petitioner and directed a writ of dower to issue. From this judgment the defendant, Esther Mitchell, appealed to the Supreme Court.

Kinney for the plaintiff.

A. Moore for the defendant.

Daniel, Judge,

after stating the Case, proceeded: "We are of opinion that the Judge put a wrong construction on this clause in Richard Mitchell’s will. The words “my property of any nature or kind whatsoever, which deeds, papers and moveables will' shew,” by no intendment nor construction can be taken to indicate an intention in' the testator to devise the land which belonged to his wife. This being our opinion, it becomes unnecessary to decide the other question raised in the cause,- whether dower under the statute in trust or equitable estates could be recovered in any other way than by bill in equity. The judgment must be reversed, and, upon the case agreed, judgment given for the defendant.

Pee Cueiam. Judgment for the defendant.