"Ninthly. It is my will and desire that all the remainder of my negroes, not given away, to be sold — those not above the ages of ten years to be sold with their mothers — together with all the stock and other property of every description, and the moneys arising from such sale, after paying over to the several legatees, etc., as above mentioned, I hereby give and bequeath unto Elizabeth Leak all the remainder."
The testator afterwards added a codicil to his will, the first clause of which was as follows:
"I desire that all the negroes, before mentioned, that are left *Page 53 to be sold, instead of credit, must be sold for cash down; and as soon as the money that is raised out of my estate, to be paid over to the legatees as soon as collected."
The testator had due to him at the time of his death several bonds, notes and other evidences of debt, of which he made no particular mention in his will. The administrator, with the will annexed, out of these bonds, notes, etc., paid the debts of the testator, and retained for his commissions as administrator, leaving a balance of this fund of $182.90. The plaintiffs, as the next of kin of the testator, claimed this balance as property undisposed of by the will. The defendants contended that it was to be applied in paying the pecuniary legacies, and that the property left to be sold, by the ninth clause, was intended (72) by the testator to go in aid of this balance to pay general legacies, and the remainder of the fund was to go to Elizabeth Leak, and that the testator did not intend to die intestate as to any of his property. There is no dispute but that the debts of the testator were properly paid by the administrator out of the bonds, etc., left by him. And we are of the opinion that the property mentioned in the ninth clause of the will was directed to be converted into money for the benefit of Elizabeth Leak, after the satisfaction of the general legacies. There is nothing in the phraseology of this ninth clause to induce us to say that the general legacies were intended to be paid exclusively out of the produce of the sales of the property mentioned in it. But it is said for the plaintiffs that the codicil shows that was the testator's intention. We do not think so. By the codicil the testator directs the slaves before mentioned in the ninth clause to be sold for "cash down." The codicil then proceeds thus: "and so soon as the money that is raised out of my estate, to be paid over to the legatees, as soon as collected." The ready money to be raised by sale of the slaves is not expressly directed immediately to be paid over to the legatees, but the money that is to be raised out of his "estate," and that as soon as collected. The codicil, instead of restricting and fixing the property mentioned in the ninth clause of the will as the only and exclusive fund for the payment of the general legacies, shows that the general legacies were to be paid out of his estate generally, viz., out of all such of his personal estate as had *Page 54 not been specifically given away by the will. The testator knew that his bonds, notes, etc., would not be sufficient to pay his debts, expenses of administering on his estate, and his general legacies; therefore he charged the fund mentioned in the ninth clause in aid to effect the payment of the legacies, and the remainder of that fund, which should not be exhausted in (73) aid, etc., was to go to Elizabeth Leak.
We are of the opinion that the bill must be dismissed.
PER CURIAM. Bill dismissed.