Robinson, Ex'r. C. v. . McIver and Others

*649 PearsoN, C. J. 1. Are the pecuniary legacies a charge on the real estate embraced by the residuary clause? To decide this question it is necessary to determine what real estate is embraced by the residuary clause. The land devised to Mrs. Cole, to wit, the plantation on which the testator resided, is embraced, subject to her life estate; The sixteen or seventeen thousand acres in divers tracts on Pe Dee River, &c., are embraced: Id certum, est ■quod certum reddi potest, by reference to the title deeds: And: the proceeds of the sale of the tract of land in Sumner County Tennessee, and of “the Speculation” or “Big Survey” land in Richmond County, are embraced. But these are specific devises, although set out in the residuary clause, and arejexpressly charged with the annuities of $300 to Mrs. Cole, and $1000 to Mrs. Harriet H. Strong. This, of itself, is enough to show that the general pecuniary legacies •cannot be a charge by implication, on the land or the proceeds of that directed to be sold. The expression of one excludes the other: it might be that if the land was subjected to the pecuniary legacies, there would not remain a sufficiency to ¡secure the annuities. We concur in the position taken by the learned counsel, for which he cited many authorities, that when, in a residuary clause, land and personality are made a mixed fund, the land •as well as the personalty is made subject to the payment of pecuniary legacies. This, however, is not on the footing of a charge on land, like the annuities in this case, but on the ground that in order to ascertain what is embraced in the residuary fund, it is necessary to take out the specific legacies, and then to deduct the pecuniary legacies, and only what remains is ■“the rest or residue of the estate.” The residuary legatee takes only what is left. Sometimes the residuary fund is treated as a matter of not much importance, as where a testator, after disposing of the bulk of his estate, adds, “the rest of my estate not herein before •disposed of” <fcc., like the words “and other articles too tedious to mention” in a constable’s advertisement of sale. *650 Sometimes the residuary clause is the substance of the will; as when a testator, after giving a few specific and pecuniary, legacies, gives.the bulk of his estate as the residue. In both of these cases the residue is ascertained by first taking out the specific and pecuniary legacies; and the residuary legatee is entitled only to what may be over and above, whether it be land or personalty. In this sense all of the cases are to be understood: not as allowing, the property to go to the residuary legatee, subject to a charge, but as taking the amount of the pecuniary legacies out of the fund, as something which he is not entitled to, because it does not come under the dis-criptión. Our case does not fall under either of these two classes, in respect to the land or the- proceeds of the sale of the other land, but only in respect to such property or funds as do not pass by it specifically, and fell under the description of “what is left,” after taking out the specific, and the payment of the pecuniary legacies. This is an exceptional case, for in the residuary clause the testator makes specific devises and specific bequests. These are fixed with sufficient legal certainty, and are'not included or left to depend upon the general words “what may be l^ft,” or “things too tedious to mention,” or “such as may have been overlooked.” This same residuary clause sets out a specific legacy of many slaves, with particular instructions in regard to them. No one who reads it can for a moment suppose it was the intention of the testator, that these slaves should in any event be sold in order to paythe pecuniary legacies. 2. The pecuniary legacy to Alexander of $1000, and of $500 to pay expenses of removal are now absolute;- the condition and purposes being met by emancipation; so this legacy takes grade with the other pecuniary legacies. Whedbee v. Shannonhouse, Phil. Eq. 283; Hayley v. Hayley ib 180. 8. The executor has no'concern with the annuities: he will sell the Tennessee land, and the “Speculation land” (unless the heirs-at-law elect to take the land), and the proceeds of sale *651 together with the other land, descend to the heirs cum onere/ and it is his duty to see that all other property not specifically bequeathed, is applied to the satisfaction of the pecuniary legacies, pro rata. In the event of a lapse by the death of a legatee or devisee, the legal effect is the same as if the name had been left blank; and the party becoming entitled takes the property in the same manner, plight and condition, that the legatee or devisee would have taken. In our case, for instance, the heirs-at-law and nest-'of-kin take the real and personal estate, charged with the annuities; and what constitutes the fund will be ascertained in the same way as it would have been in respect to the residuary legatee had he been living. Mrs. Strong being one of the heirs, the annuity given to her will be subject to abatement pro rata. We have disposed of all of the practical questions that now arise under the will. The loss of the slaves and the destruction of other personal property during the war, as appears from the pleadings, render the decison of the other points into which his Honor has entered with great minuteness, unnecessary. Tire decree will be reversed in so far as it does not conform to this opinion, and a decree in these respects will be drawn in conformity thereto. The other parts of the decree below need not be referred to. The costs will be paid out of the fund. Per Curiam. Decree accordingly.