#### HILL JONES & AL. vs. BENNETT PERRY & AL.

A testator bequeathed certain negroes to his wife for life, and made no specific disposition of them after her .death. He had other negroes, and, after making several other bequests, he bequeathed as follow: “All my negroes that are hot given away by this my last will shall be equally divided be tween W. E. and M.” Held that the remainder in the negroes given to the wife for life passed by this residuary clause to W. E. and M.

As to personal estate, a residuary clause carries not only évery thing not disposed of, hut every thing that turns out not to be disposed of.

The cases of Speight v Gatlin, 2 DeV. Eq. 5, and Taylor v Lucas, & Hawks 315, cited and approved,

This cuase was set for hearing at Spring Term 1844, of the Court of Equity for Nash County, and then transmitted by con'sent to the Supreme Court.

The bill was filed to obtain the opinion of the Court upon the will of William Boddie, deceased, late of Nash County. The testator died in the year-, having previously made and published in writing his last will and testament. In the will is contained the folluwing bequest; ‘-Igive and bequeath to my dearly beloved wife Patsy Boddie one bay horse by the name ofSipp and my plantation wheieon I do now live. Also my still, also the use and labor of the following negroes, to wit, Isaac and Silvy and Mary her daughter, and Buck and little Dinah and Glasgow and Mingo — also four cows and calves, two barren cows and *201four breeding sows, and len/year old, hogs and ten head of sheep, and also the use of all my kitchen and household furniture, that is not in this my last will otherwise ordered and during her life or widowhood.” In a subsequent clause, after some legacies to his son Willaim Willis Boddie, and to his daughters, is the following residuary disposition; “all my negroes that is not given away by this my last will shall be equally divided between William Willis Boddie, Elizabeth and Martha Ann Boddie — and also all my horses,cattle, sheep and hogs for tobe equally divided among them.” It is admitted that William Willis Boddie qualified as executor of his father’s will and assented to the legacies contained in the will —that the defendants are in possession of the negroes who were bequeathed to Mrs. Boddie, the widow, during her life or widowhood, claiming them, under the said residuary clause, in their own right, and as representing W. W. Bod-die who is dead — and that the plaintiffs are other children and distributees of the said William Boddie the testator. It is further admitted that the testator died possessed of other negroes than those left for life to Mrs. Boddie. The plaintiffs contend, that the nogroes, in which a life estate was given to the widow, and their increase did not pass under the residuary clause, but ns to them, the testator died intestate — and they are entitled, as in a case of intestacy, to their distributive share of them. The defendants allege, that, by the terms of the residuary clause, those negroes are embraced in it and passed to the residuary legatees, and that the plaintiffs are entitled tono portion thereof. It is admitted that Mrs. Boddie has recently died.

Saunders for the plaintiffs.

B. F. Moore for the defendants.

Nash, J.

We are of opinion that the negroes* bequeathed to Mrs. Boddie for life, passed, under the residuary clause, to the persons therein named, to wit, William Willis Boddie and Elizabeth and Martha Ann Boddie, and constituted in them a vested remainder, to be enjoyed after the death of the *202widow. It is a principle of law, that a testator is to be presumed to intend not to die intestate, as to any portion of his estate; and, therefore, it is always held, that a residuary clause passes whatever is not otherwise disposed of, unless particu-. laxly restrained. Indeed, the very end and object o( a residuary clause appear to be, to gather up the fragments of an estate after other portions of it have been particularly dispo-’ sed of. It is, therefere, a rule well established in the English Courts, as in ours, that, as to personal estate, a residuary clause carries not only every thing not disposed of, but every thing that turns out not to be disposed of. 1st Ves. Jr. 109, 110; 15th do. 509; 4 Hawks 215. It is not so much the intention of the party, though that intention clearly expressed will govern, as the presumption of law in favor of the residuary legatee, to avoid an intestacy. When, therefore, a particular legacy lapses, it falls into the residuum for the benefit of the residuary legatee — he being preferred to the next of kin. In the case of Speight and Gatlin, 2 Dev. Eq. Rep. p. 5, the devise to Mrs. Speight, the widow, was of a tract of land and five negroes during her life. There was then a devise of all the remainder of his estate of every description, to be sold and divided between his two sons. There was no mention otherwise, in the will, of the negroes devised for life to the widow. The court decided they passed under the residuary clause. - It is difficult to distinguish that case from the present. The negroes passed to the residuary fund, because the language was sufficient to embrace them, and because it was evident the testator did not intend to die intestate. Here the words in the residuary clause are sufficiently comprehensive to embrace the negroes given to the widow for life; “ all my negroes that are not given away by this my last will,” &c. The language used by the testator, the bequest to the wife, may assist us in ascertaining his intention, if it is necessary to .resort to his intention to expound the clause under consideration. “ I give the use and labor of my negro Isaac,” &c. It is fair to suppose he used those terms in their common and ordinary acceptation; for *203in the residuary clause he varies the expression so as to give the negroes themselves, and not merely the use. But, if had given them in so many words to his wife for life, without more, an interest remained in him undisposed of — the remainder — and the language used is sufficient to embrace it; for, according to the case of Taylor, Ex'r, v Lucas and, others, 4 Haw. 215, the residuary clause will, by construction of law, carry not only every thing not diposed of, but every thing that in the event turns out not to be disposed of. The testator, then, in this case, not only had negroes not expressly given away by the will, by any devise going before the residuary clause, but it turned out that he had others of which he had not disposed. The law then, beside the intent of the testator, places them in the residuary clause, and> upon the death of the widow, Mrs. Boddie, they go, together with their increase, to the residuary legatees, the defendants in this case. The bill must be dismissed.

Per Curiam. Bill dismissed.