DUNCAN A. MCDOUGALD ET AL., APPELLANTS,

v.

GILCHRIST'S EXECUTOR ET AL., APPELLEES

Me. Justice VanValkenbue&h

delivered the opinion of the court.

In October, 1881, Edward C. Love, as the executor of the last will and testament of Mary A. Gilchrist, filed his bill of interpleader in chancery, for the purpose of determining the lights of the heirs and legatees under the will. The testatrix was the wife of S. S. Gilchrist, and in and by her will disposed of a portion of her separate .property only. She died without issue, leaving her husband and brothers and sisters, and some minor children of a deceased brother surviving her, the only heirs. The husband, S. S. Gilchrist, claimed the whole of the residue of her property, and the heirs claim it, to his exclusion. The several defendants answered the bill setting up their claims. The ease was heard by the Chancellor on the bill and answers, and the court decreed that the husband was entitled to the property. The executor, by the decree, is “ instructed, directed and required to pay and deliver to the said S. S. Gilchrist, or his solicitor, the said residue of said goods and chattels, rights and credits, moneys, effects, choses in action and personal property.” Erom this final decree the other legatees and heirs, all mentioned in the will, as Duncan A. Mc-Dougald, Daniel E. McDougald, Archibald McDougald and others, bring their appeal. The only question as presented in this case, by the petition of appeal and the argument of counsel is, “ Can a testatrix, by a will which does not dispose of all her property, deprive the surviving husband of the portion not embraced in her bequests.”

By the terms of the will she bequeaths to .her husband, Ur. S. S. Gilchrist, the sum of five hundred dollars in cash, the growing crops on her place, the stock of hogs, and a horse named “ Pet.” She bequeaths to her brother, Uuncan McDougald, fifty dollars; to her brother, Daniel McDougald, fifty dollars; to her brother, Archibald Mc-Dougald, fifty-dollars, and other sums ’to her relatives named in the bill, of complaint, and who are appellants in this cause. The appellants claim that by reason of the fact that the testatrix bequeathed a certain specified amount of money and other property to her husband, that therefore it is evident she did not intend he should have any residue which might be left after the full carrying out of the will. Why would not the same reasoning apply to the appellants; to each of them she left á legacy ; does it follow, therefore, that for that reason alone, they could not, if entitled otherwise, receive any portion of the residue ? But the counsel for appellants say in their argum.-nt that the will itself, in that she expresses a desire to be buried by the side of her first husband, and that upon her tombstone shall be inscribed the words: “ Mary Ann, wife of John G. Smith,” the name of her first husband, evidences the fact that she intended'S. S. Gilchrist, her then husband, should have no further portion of her estate than she had bequeathed him. We cannot see that this fact points to the -conclusión at which the counsel has arrived. It is evidence of nothing beyond the desire expressed by her. The reasons are not known, but the fact is not sufficient to cut off Gilchrist from any rights he may have under the law; nor are the allegations made in the answer of defendant, I). A. MeDougald, sufficient for that purpose. The will was proven and letters issued, and the executor, before the commencement of this action, had entered upon the discharge of the-duties of his office.

In 2d Williams on Executors, 1590, it is said : “Where there is no gift of the undisposed of residue, a testator cannot, by negative words, exclude one of his next of kin from participating in it. Thus, where a testator, by his will,, cut off his widow and one of his daughters from any part of his property, and directed that they should not receive any benefit therefrom, but had made no disposition of his property, if was held that the widow and daughter were, nevertheless, entitled to their share in the undisposed of residue, under the statutes of distribution.” The author cites Johnson vs. Johnson, 4 Beavan, 318. This case so cited we have not been able to examine.

In the case of Fitch vs. Webber, 6 Hare, 145, the testatrix devised and bequeathed her real and personal estate in trust, as to the real estate, for sale as soon after her decease as conveniently could be, and declared that the trustees should stand possessed of the proceeds of the sale as a fund of personal and not real estate, for which purpose such proceeds of the sale, or any part thereof, should not, in any event, lapse or result for the benefit of the heirs at law ; and after giving legacies, the testatrix directed her trustees to pay and apply the residue of her estate and effects, as she should _ direct by any codicil to her will. She made no codicil, and soon after died. The Yiee-Ekancellor in his opinion says: “ What I am called upon to do is not to give effect to an intention expressed in the will, but to imply an intention not expressed in favor of parties to whom the testatrix’s testamentary dispositions are as hostile as the clause of exclusion is to the heir, parties whom she has excluded as directly as she has ¡excluded the heir. How can I in such circumstances imply an intention in favor of those parties ? much less say that such intention is a necessary implication. Admitting the intention to exclude the heir, is not the intention to exclude the next of kin equally clear ? Where then is there ¡room for a necessary or any implication in favor of the next of kin. I feel myself called upon to follow the course of decisions, in holding that the testatrix has expressed an intention to exclude the heir only for the purposes of her will, and that if her words express more, and she has failed to say who shall take the surplus, the law must dispose of it.” Bromley vs. Wright, 7 Hare, 334, 344; Flint vs. Warren, 14 Sim., 554; Leading Cases in Equity, Vol. 1, part 2, 1184.

Ths statute of this State is, however, explicit on this subject, and controls this case. It provides “ if married women die in this State possessed of real and personal property, or of either species of property, the husband shall take the same interest in her said property and no other, which a child would take-and inherit, and if the wife should die without children, then the surviving husband shall be entitled to administration, and to all her property, both real and personal.” McC. Dig., 471, §12.

The decree of the Chancellor is affirmed.