It was conceded in the argument, that the sale of the real estate under the power and authority conferred upon the executor by the will, converted it into personalty, and therefore, the testator may be considered for the purposes of this case as having died leaving personal property only. It was also conceded that there was no question before this court as to the election of the widow, she having elected to take under the will by joining with the executor in the deed conveying the real estate sold under the directions of the will. The question of election, however, did not arise and was not necessary to be considered or decided, though the chancellor did decide it, the only question presented for the consideration of the chancellor and for this court being simply in reference to the distribution of the residue or unappropriated balance in the hands of the executor, and that seems to be narrowed down to the ascertainment of the share or proportion to which the widow is entitled, whether to one-third of the original or whole estate, or to one-third of the residue after the payment of his debts. It is not claimed or contended that the birth of the post-testamentary children had the effect to revoke the power of sale, or in any wise to change or modify the operation of law in reference to the conversion of the real property to personal, by the sale made in accordance with the directions of the will. By such sale *Page 441 the real estate was unquestionably converted into personalty and the proceeds constituted part and so much of the personal property to be distributed by the executor as such. Revised Code 274. Coates vs.Hughes, 3 Binney, 498.
Having passed over and disposed of all other questions and those which have not been controverted or argued before us, I come to the consideration of the only matter which we are called upon to consider and decide, which is the share or proportion to which the widow is entitled under the will. It is insisted for her that she takes one-third of the whole or original estate, and on the other side it is said that she is only entitled to one-third of the residue after payment of debts. This question necessarily involves the construction of the will. By the third item the testator directs the payment of his debts out of the first money that shall come to the hands of his executors, whether it be the proceeds of the sale of the real estate, or personal property not of the proceeds of such sale.
By the fourth item he gives to his widow "one-third of my whole estate according to law," except the unexpired term of two indentured servants, and one bay mare. The testator's meaning as expressed by this clause of his will and the proper and legal construction of it, is the important question in this case and the hinges upon which it turns. Now what did he mean and what does his language indicate as his meaning? He evidently had in his mind and referred to some law which was to be the rule and measure by which his widow's one-third part of his whole estate was to be ascertained — could it be any other than the statute of distributions which gives a widow onethird of all the personal property of the husband who dies intestate after the payment of debts? If it was not this law to which the testator referred and which he intended to incorporate into his will and thereby make it the controlling principle and means for the ascertainment of his widow's share or proportion, what other could he, or can we apply in the determination of the question submitted to us? There is no other that he could have referred to, *Page 442 and no other that can at all be applied to the case, and the conviction is, therefore, irresistibly conclusive that the reference is to the statute of distributions, thus indicating more clearly and explicitly the mode and the rule by which his widow's share or proportion should be ascertained. The law thus referred to by the testator becomes part of his will, and his estate must therefore, be distributed according to its provisions or his intentions will not be effectuated. The principle here enunciated is recognized in the case of Burton vs. Burton, 4 Harrington 38 and that of Horsey vs. Horsey, 1 Houston 438.
This construction is made clearer and more conclusive by that clause in the will which excepts the widow's "interest" in the indentured servants and bay mare. There is no law of the State, except the intestate law or statute of distributions under which the widow would be entitled to any part of those articles, or to any portion of the proceeds of the sale of them, for except under this statute she would have no interest whatever in the excepted property.
By the words "according to law," the testator meant the intestate law, that is the statute of distributions, and as that law gives the widow one-third of the residue of the personal estate after the payment of debts, it was necessary to except such articles as were not to constitute part of the estate of which she was to have one-third part. This exception being made by the testator, his widow is entitled to one-third of the residue after payment of debts and expenses of administration, subject however to modification and abatement, as she is one of the legatees of the will, in view of the shares of the post-testamentary children, who are entitled each to one equal sixth part or share of the testator's estate both real and personal. RevisedCode, chapter 84, section 12 p. 274. And such shares or portions must be raised and made up first out of any intestate property of the deceased (if any), real or personal, and the residue of such shares if there be a deficiency of such intestate estate to make up the same, or the whole of such shares or portions, if there be no such intestate estate, *Page 443 is to be contributed proportionably by all the devisees and legatees taking under the will, out of the parts or shares of the estate devised or bequeathed to them respectively.
But it was said in the argument, and with a considerable degree of earnestness, that the testator declared that his widow should have "one-third part of his whole estate" and therefore could not have meant one-third of the residue, but one-third of the original estate — and this seems to have been the Chancellor's view of the testator's meaning and he so construed his language. We do not so understand and construe the words "whole estate". To give to them such unrestricted meaning would be to give to the widow one-third of the whole estate clear of debts, which is not claimed for her either by the argument or the decree of the chancellor. There is no law that gives to a widow one-third of her deceased husband's whole or original estate, provided so much remains after the payment of the debts and the expenses of administration, and the whole of the residue if it should be less than one-third of the original estate. But there is a law which entitles a widow to one-third of the residue remaining after the payment of debts. And that is doubtless the law to which the testator referred by the use of the words "according to law." He thus incorporated this statute in his will and made it part of it just as much as if he had inserted it inhaec verba. This construction is maintainable as well by reason, as by adjudicated cases in our own courts. Burton vs. Burton, 4 Harr. 38.Horsey, vs. Horsey, 1 Houston 438. Whilst in our judgment no other interpretation of the word is tenable or even plausible.
The testator evidently had in his mind and intended to indicate some law by which his widow's share or interest in his estate under his will should be ascertained, and there being but one which has any sort of reference to the distribution of the estates of deceased persons, which is the intestate law or statute of distributions, we are driven to the conclusion that he meant and referred to that statute. If this is the true interpretation of the words "my whole *Page 444 estate" the testator did not mean the original estate, in reference to quantity, for that would not, in his language be "according to law" but contrary to it, and also to his expressed will. These words, "my whole estate," are descriptive of the nature and character of the estate, and not indicative of the quantity, that is, they mean the proceeds of the sale of the real estate as well as the personalty, and it is in this sense that they were used and intended to be understood.
The testator used the same words in the ninth item of his will, which is the residuary clause, in such connection as to exclude the possibility of a doubt as to his meaning. He says, "I give and bequeath unto my four sons, viz.: John S. Morris, William S. Morris, James II. Morris and Elijah Morris, the balance of `my whole estate,' after deducting the `aforesaid legacies,' to be equally divided among them." The balance of "my whole estate" after deducting "legacies." not debts. This cannot mean the whole original estate, but it is the residue remaining after the payment of the debts: that residue is what constitutes a man's estate and when we speak of our own, or another's estate, we mean that which remains clear for distribution after the payment of debts. Whatever is necessary for the payment of a deceased man's debts belongs to his creditors and cannot properly be considered any part of his estate for distribution and especially when we apply the act of distribution, for no matter how much property he may have in possession, if it is not more than sufficient to pay his debts, he has no distributive estate. This is true not only in a common sense view and as a matter of fact, but in legal contemplation. This being one view of the case we are of opinion that so much of the chancellor's decree as prescribes and directs the mode and proportions of the distribution of the unappropriated balance of the estate of Elijah M. Morris, in the hands of his executor, John W. Warren, ought to be reversed, and this is the unanimous judgment of the court.
We direct that the said John W. Warren, executor of *Page 445 the said Elijah M. Morris, pay and distribute the unappropriated balance in his hands as follows: First, Out of the unappropriated balance remaining after the payment of the debts, and expenses of administration, he shall pay to the several persons entitled thereto the sum of two hundred and thirteen dollars and sixteen cents, the costs and expenses in the case ordered to be paid by the Chancellor, and that he pay the costs in this court. Second, That he distribute and pay the residue of said unappropriated balance as follows, viz: that he divide the said residue with the interest thereon into the following parts or allotments, viz: one-third part of the whole of said residue remaining after payment of the debts, expenses and costs as aforesaid — another of said parts, being the sum of two hundred dollars and the interest on the sum of ten dollars from the expiration of six months from the death of the testator, and on the further sum of ten dollars from and after the expiration of each and every succeeding six months thereafter, which shall have elapsed at the time of such division and distribution, and four other parts being each one-fourth of said two-thirds, remaining after the deduction of the said sum of two hundred dollars with interest as aforesaid: and that he pay to Mary Laura Morris and Ann Eliza Morris each one half of one of said fourth parts so remaining after the deduction of the said sum of two hundred dollars with interest on the said several sums of ten dollars respectively as aforesaid, the same being the share bequeathed to John S. Morris and which lapsed by reason of his death in the life time of the testator.
And that he further pay to the said Mary Laura Morris and Ann Eliza Morris severally and respectively from and out of the said one-third part of the said whole residue, and from the said sum of two hundred dollars with the interest on the installments as aforesaid, and from each of the remaining three-fourths of the said two-thirds, by way of proportionate abatement or deduction therefrom, such sum as together with the said one-half of *Page 446 the said one-fourth above ordered to be paid to them will make up to each of them, the said Mary Laura Morris and Ann Eliza Morris, one-ninth part of the whole of said residuary balance remaining after the payment of the debts, expenses of administration and costs aforesaid. And that he pay to Ann Elizabeth Morris, widow of said testator, the residue of the one-third part of the residuary balance after deducting therefrom the sum necessary to constitute her proportional contribution therefrom to make up the shares of the post-testamentary children as aforesaid. And that he pay to Elizabeth W. Clymer, or to the said John W. Clymer in her right, the sum of two hundred dollars, with the interest on the installments aforesaid, less the amount necessary to constitute a proportional contribution therefrom to make up the shares of the said Mary Laura and Ann Eliza respectively as aforesaid, in the manner and at the times in that behalf provided in said last will and testament. And that he pay to William S. Morris, James H. Morris and Elijah Morris, severally and respectively the three-fourths part of said two-thirds remaining after the deduction therefrom of the said sum of two hundred dollars aforesaid, with the interest on the several installments as aforesaid, to wit: one-fourth part thereof to each of them, less the several amounts necessary to constitute their several proportional contributions therefrom to make up the shares of the said Mary Laura and Ann Eliza respectively as aforesaid. And that the decree of the Chancellor so far as it decrees or directs any other or different distribution and payment of the said residuary balance by the said John W. Warren, executor as aforesaid, is hereby reversed.