By the Court.
Benning, J.delivering the opinion.
[1.] Which of the two instruments, dated the 17th of September, 1851, did the testator refer. to in the third item of his will ? That he referred to one or the other of the two, hardly admits of a doubt. The subject of one of those instruments is personalty — only negroes; the subject of the other is both realty and personalty — land, mules or horses, hogs, cows, farming utensils, household and kitchen furniture. This last instrument is, beyond question, a deed, and not a will. As to the other, there is a question whether it is not :a will.
The question for this Court is, which of these two instruments was the one referred to by the testator in the third •item of his will ?
That item is as follows : “I give and devise unto my beloved wife, Easter Booker, and direct my executors hereinafter named to deliver unto her all the property, both real •and personal, that I made a deed of gift unto her, dated the 17th of September, 1851, at my death.”
The words, “ at my death,” must be considered as relating to the words, “to deliver,” and not as descriptive of the instrument meant..
*790Therefore, these words can be of no value in settling the ■question under consideration.
Which of the two instruments, then, do the other words of the item call for ? The one, as we think, that includes realty as well as personalty. That is, beyond question, a deed; and it not only fits, but it satisfies every one of those words. They ask for no more.
In one important particular, the other instrument fails to satisfy those words. It does not include any realty. It includes only personalty.
When a subject is found that fits and satisfies a description in every particular, and another is found that does not satisfy the description in an important particular, the former, it is to be presumed, is the subject for which the description was intended. (Chichester vs. Oxenden, 3 Taunt. 147; Ashworth vs. Bower, 3 Barn. & Ad. 453.)
This Court decides, then, that the instrument that includes realty as well as personalty, is the one that was referred to in the third item of the will. In this, it seems that we agree with the Court below. We decide nothing else. There are other points in the case, but those the parties do not wish decided. And somecf them' are, perhaps, not ripe for a de. •cisión.