George Miller made his will in July, 1848, and thereby devised the land on which he lived, and another tract, to his wife in fee, and one-sixth part of his unwilled negroes, the whole to be equally divided between her and five of his six children, and also "two beds, her bureau, the house clock, six chairs, the cupboard and all that is in it, and all the kitchen furniture, two horses (her choice), four head of cattle (her choice,) the wagon and gear, and the ................, ten (249) head of hogs, 200 pounds of bacon, 200 bushels of corn, 50 bushels *Page 183 of wheat one sack of salt, and one table, which shall belong to her as her own property." He then give to two of his sons a tract of land, and to two grandsons, the sons of a deceased son, $250 each "for their land." and to his daughter Sophia a negro girl named Emmeline, and to his daughter Polly a legacy in money instead of negroes, as she did not wish to have negroes. He then, by distinct clause, devises several tracts of land and other property, not willed, "to be sold" and the money to be divided as hereafter directed. And afterwards comes the following disposition: "It is my further will that after all my just debts be paid, and the money willed, the balance be divided among all my heirs." By a codicil of 28 September, 1845, the testator provides that "if my wife should be pregnant and delivered of a child, that child shall have a negro named Creecy, and further shall be heir with my children in the division and distribution of my estate." After the death of the testator the will was proved in November, 1845, by the defendant Paul Miller in the form and with the blank as above set forth, the said Paul being one of the sons of the testator; and he delivered to the widow her share of the negroes and the specific articles bequeathed to her, as above mentioned, and took her acquittance in full for the property bequeathed to her in her late husband's will.
The present bill is filed by the widow and her after-taken husband, against the executor and the other children of the testator, and state that the blank now appearing in the will was originally filled with the words "carriage and harness," and that the executor or some other person fraudulently obliterated these words and procured the probate of the will without them, of which the widow had no notice when she gave the acquittance; and, in consequence of her ignorance thereof, she was induced to purchase the carriage and harness at the (250) executor's sale at the price of $135. The bill also states that the testator left considerable sums due to him one bonds and notes, and that the produce of the lands and other things directed to be sold amounted to a considerable sum. And it prays that it may be declared that the words "carriage and harness" originally formed part of the will, and that they were fraudulently obliterated by the defendant Paul and others, or one of them, and that the plaintiffs are thereby entitled to the carriage and harness under the will as if it had been duly proved with those words in it; and, further, that the executor should come to a general account of the estate and pay the widow an equal share with the children of the residue. The bill cannot be sustained in either aspect of it. As to the alleged alteration in the will, the court of equity has no jurisdiction, but it belongs exclusively to the court of probate, which latter court alone has power to determine the question, what is a will of personalty and which is the will of the testator, and consequently, to authenticate it to all other courts. The seal of the court of probate is, therefore, evidence that the paper, in the terms certified, is the testament of the deceased, and no suggestion can be heard that any part has been added to of left out of the instrument. Bac. Ab. Executors, E, 1. The province of the court of equity extends only to the construction of the will as it is sent from the court of probate.
Upon the construction of this will there seems no doubt. Upon the original will, by itself, the intention would appear to have been to give the residue to the children and grandchildren, under the (251) description of "all heirs"; for the provision for the wife was so much more ample in land, a full share of the negroes and in other specific articles, that it could hardly be supposed the testator intended, under those terms, to let her into the residue equally with the children, for whom he made a much less specific or pecuniary provision in the previous part of the will. But whatever doubt there might be, if there were nothing but the original will to guide, the point is rendered plain by the codicil, in which, while making provisions for a posthumous child, should there be one, he gives it a particular negro, and then says, "that child shall be heir with my children in the division and distribution of my estate," which clearly refers to the residuary clause and shows that he used the term "heirs," there as descriptive of his children and their issue, all of whom he had mentioned in the previous clauses of the will. Had it been the testator's meaning that his wife should take a part of the residue, he would have mentioned her again in the codicil as one with whom the after-born child should be heir, as well as with the children. As he did not, the inference is that, as mentioned in the codicil, the children were to take the residue, and that, if another should be born, such child should come in with the "children."
PER CURIAM. Bill dismissed with costs. *Page 185
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