It appeared from the will, which was annexed to this bill and made a part of it, that in a previous clause the testator had given *Page 351 to the defendants, Loton and Thomas, the remainder in two tracts of land after the death of his wife, and that, excluding the clause in dispute, the only legacy to the three children by the first marriage was in the residuary clause, where he gives to each of his five children the rest of his negroes and all the residue of his estate, to be equally divided among them. The answers of the defendants admitted the facts stated in the bill. The administrator stated that he was ready to account and pay over, but could not do so with safety until the court had placed the proper construction on the will, and Loton and Thomas, the other defendants, submitted to whatever decision the court might make, claiming the negroes in question, however in opposition to the plaintiffs.
At Spring Term, 1841, the cause was set for hearing, and transmitted to the Supreme Court. It is difficult, perhaps impracticable, to give to the section of the will, which we are called upon to expound, any construction which may not contravene the words of one or other part of it. The first clause, "It is further my will and desire that all of my children, those of my first wife, to-wit, Amos Jones, Ruffin Jones and Duffy Jones, and those of my second wife, to-wit, Loton Jones and Thomas Jones, shall be equally provided for in property, and their estates upon their arriving at full age, respectively, be as nearly equal as may be,"per se obviously imports an intention on the part of the testator of individual equality, that each child shall be as nearly equal as practicable in point of property. But the latter clause of the section declares, in terms which will admit of no other construction, that the property contemplated in that section shall be so valued and allotted that the two children of the second wife shall receive as much as shall be equal in value to thewhole of that which at his death will accrue to the three (433) children of the first wife. The equality thereby effected is an equality between the classes, not between the individuals. The words are as explicit as possible: "and whereas, under the will of Amos Gooch, deceased, the three, children of my first wife will be at my death entitled to the tract of land on which I now live and which is valuable, it is my will and desire that my executors select three good men to value the said land on which I live, and then to value of my slaves (remaining after my wife's share is set off) a sufficient number to be equal in value to the saidland, and that said slaves so valued be set apart by my executors; *Page 352 and it is my will and desire that they belong absolutely to my two children, Loton and Thomas, and that they be kept together, undivided, until the said Loton and Thomas shall arrive at full age, then be equally divided between them." In this conflict, or apparent conflict, between the first and last clauses of this section, we hold it proper to assign to the latter the controlling influence, and this for several reasons. In the first place, this is the enacting or disposing part of the section. Nothing is done — no property is given or allotted — in the section until we come to this clause. All the preceding parts do but constitute the proem or recital introductory to what is finally directed to be given or allotted in the concluding clause. The testator declares a wish or desire of equality in property between his children, then states a fact which may thwart his purpose unless he make a special provision to meet the case, and finally proceeds to declare directly and specifically what disposition shall be made of his property in order to effect his purpose. Now, it is a rule of good sense, as well as of law, that a recital or preamble, however important, as explanatory of an ambiguous enactment or disposition which it introduces, cannot be permitted to overrule the enactment or disposition if it is free from ambiguity. It is a key to unlock the cabinet where the will of him who gives the law in the prescribed case is to be found, but it is not the cabinet in which that will is deposited. In the next place, the language of the final or disposing clause is more unequivocal and (434) unyielding than that in the introductory clause. The former can admit of but one interpretation. Whatever is given by it, is given by name to his two children, Loton and Thomas, absolutely. The gift is of as many negroes as shall be equal in value to the value of the tract of land whereon he then resided; and he expressly recognizes that this tract is, at his death, to be enjoyed by "the three children of his former wife." The two, Loton and Thomas, are to have as much as the other three. By no gloss, by nothing less than an explicit declaration to the contrary, and that made under such circumstances as to entitle it to higher reverence, and therefore to be regarded as annulling to that extent the precise disposition actually made in this clause, can it be held that Loton and Thomas shall receive buttwo-thirds of the value of the land which is to be enjoyed by the other three. Now, while it is admitted that the more obvious construction of the first or introductory clause is of an intended equality between the children as individuals, its language is not absolutely repugnant to the inference of an intended equality between them as classes — that is to say, "the children of his first wife, to-wit, Amos Jones, Rufus Jones and Duffy Jones," *Page 353 on the one side, and "those of his second wife, to-wit, Loton Jones and Thomas Jones," of the other. Moreover, although the declaration of the testator's will for a certain equality between his children is made with direct reference to the disposition, contained in that section only, it is, nevertheless, a declaration of anexisting motive at the moment of making his will. As such, it must have had some influence upon all the dispositions therein contained. Now, although these children are constituted residuary legatees and devisees, and therefore take equal shares of whatever is not specifically given away, there are special and exclusive gifts to the two children, Loton and Thomas, whichcannot be controlled by the words in this clause, and which demonstrate that at the time of making the will the testator did not intend an exact individual equality, that he was not under the influence of that motive, and that, therefore, in describing his general purpose which would permit each of the two (435) children, Loton and Thomas, to have a larger portion of property than either of his three elder children. The special and exclusive gifts to which we refer, and for which there are no compensating gifts to his other children, are of the two tracts on Green's Creek, subject to the widow's life estate, with a special appropriation of $500 to their improvement. These certainly Loton and Thomas do take, and by taking these they are by the act of the testator made richer than either of their brothers. And, finally, if the first clause could be deemed entirelydispositive and as completely certain as the last — and they cannot be reconciled to each other by any exposition — then the former must give way to the latter, upon the principle that in a will the last declaration of a testator's purpose must prevail. It must be declared, therefore, that the construction contended for by the infant defendants, Loton and Thomas Jones, is the true construction of this will.
PER CURIAM. Declared accordingly.
(436)