*154DISSENTING OPINION.
Peabody, J.In so .much of the opinion of Mr. Justice White-house as determines the rule for the construction of the will of the testatrix relative to the legacy in controversy I concur; but I do not concur in the opinion as to the extent of the equity powers of Probate Courts in this state.
The Probate Court had authority conferred upon it by Chap. 49 of the laws of 1891, which it did not previously have to adjudicate between residuary legatees of a testate estate, the heirs at law of an intestate estate, and as between the residuary legatees and heirs in case of a controversy as to whether the residuum is testate or intestate property, but only when on the settlement of the administration account there appears to remain in the hands of an administrator or executor property not necessary for the payment of debts, expenses of administration nor specifically bequeathed. This statute did not give the probate court jurisdiction to construe wills further than is necessary to ascertain who are entitled to the balance of the estate and their respective shares therein left after payment of debts, expenses of administration, and definite legacies, nor power to order the residue paid, except to residuary legatees under á residuary clause if any, of a will, or otherwise to heirs at law. In his decree the Judge of Probate has adjudicated that the legacy of Mary D. White was not a specific legacy which had been adeemed by the testatrix, but was a demonstrative legacy to be paid generally out of the estate. This was an assumption of jurisdiction to construe the will which belongs only to the equity court, and the decree could not establish the rights of the parties. Hanscom v. Marston, 82 Maine, 288; Mattocks v. Moulton, 84 Maine, 545; Graffam v. Ray, 91 Maine, 234. Neither can the decree of this court acting in these proceedings as a supreme court of probate authoritatively decide between them. The supreme court of probate has appellate jurisdiction in matters determinable by the judge of probate, and may reverse or affirm the sentence or act appealed from, and pass such decree thereon as the judge of probate ought to have passed.
The judge of probate could not order the payment of a definite legacy out of the residuum of the estate. He had no occasion under *155this petition to decide, and did not decide that the sum mentioned in the petition was the true balance left for final distribution. It was sufficient if it so appeared on settlement of the account. If all debts, administration expenses and definite legacies have been in fact paid, the balance is to be distributed to residuary legatees according to the will, if it directs, otherwise to the heirs according to law. The judge of probate had jurisdiction to decree distribution only among these two classes of the residuary fund as he might find it to be testate or intestate property. The question of the existing validity of the legacy to Mary D. White must be determined between the legatee and the administrator with the will annexed, as is the validity of other definite legacies or debts against the estate, preliminary to the proceedings for distribution of the balance remaining. Smith’s Probate Law, (4th Ed.) 154.
The suggestion of the counsel for the appellee, that the balance stated in the petition, which may be part of the proceeds of the specific sum of $1100 in the hands of the brother of the testatrix, was in the nature of a remainder, is a fair argument in support of the theory that the testatrix intended the bequest of an amount and not of a particular investment; but the will discloses no intention of the testatrix to dispose of any residuary estate as such. There is no general residuary clause, and there are no testamentary expressions indicating the bequest of a particular residue. The appellant’s reasons of objection to the decree, that it does not follow the petition, and does not legally dispose of the balance of the estate, seem to be correct.
We cannot, sitting as the supreme court of probate, decide whether or not the appellee is entitled to the payment of her legacy in full or in part, out of the property in the hands of the administrator with the will annexed, but that under the petition the decree which the judge ought to have made is, that the balance of the personal estate be distributed to the heirs at law of the testatrix as intestate property. This must be the decree of this court. The appeal should therefore be sustained.