By agreement, this case comes before us upon two questions—
1. Whether under a proper construction of the will of David Wade, deceased, the plaintiff, as one of two grandchildren, issue of a deceased daughter of the testator, should receive the full share of the estate to which his mother, if living, would have been entitled, or a half share only ?
2. Whether by the terms of a receipt given by the plaintiff to the executor, purporting to have been in full of his interest in the estate, in connection with the testimony, he had already received his full share, or is entitled to an additional amount ?
First. That part of the will in which the testator makes disposition of his estate reads as follows:
“ First, after all my lawful debts are paid and discharged, I wish that all my estate, both real and personal, be sold at public sale, on a credit of twelve months, except that which is otherwise provided for in this will.
“ To my son, William W. Wade, I give and bequeath over and above his equal share of all other property, real and personal, the iron money-safe. I also bequeath to my beloved daughter, ¡Nancy Ann Wade, the sum of §700 in money, over and above her equal share in all other property, both real and personal.
“ To my granddaughter, Martha Clifft, who married a man named Antone ¡Rickers, I give and bequeath the sum of §5 in money, it being my will that she, the said Martha Clifft aforesaid, is to have nothing more than the §5 given. Likewise I make, constitute, and appoint my son, William W. Wade, to be the executor of this my last will and testament, *22hereby revoking all former wills by me made. In witness whereof,” &c.
We think the court below properly construed the intention of the testator to have been simply to change the general law of descent and distribution so as to give to his son and daughter, William W. and Haney Ann Wade, specific legacies over and above the shares to which they would have been entitled under the statute, and to deprive his granddaughter, Martha Rickers, of all share in his estate, except the sum of $5; and that after paying these legacies the remainder of his estate should be divided under the law, giving to his four children (there being two others besides those named in the will) equal full shares, and to his remaining grandchild, the plaintiff, a half share only, and not the full share to which he and Mrs. Rickers, in right of their mother, would have been entitled had it not been for the provision as to her contained in the will. (Paschal’s Dig., arts. 3419, 3425, 5373.)
Second. The executor held the estate in trust for the benefit of all the heirs, and their respective shares after payment of the specific legacies ivere fixed by law, and not by his mistaken construction of it, though made in good faith, by which the share of the plaintiff was diminished and those of the other heirs, among whom was the executor himself, were increased.
It is admitted that the receipt of the plaintiff was for money which belonged to the estate, and hence no consideration was in fact paid for the release of his remaining interest in this fund. The amount received seems to have been less than his proper share, and we think it would be inequitable, under the circumstances as disclosed by the testimony, to hold him bound by the terms of the receipt. This is the view taken by the court below, and, we think, is sustained on principles of law and equity.
The judgment of the court below will be affirmed, and as both parties prosecuted an appeal, the cost will be equally divided between them. It is accordingly so ordered.
Judgment affirmed.