dissenting:
On the 9th day of November, 1863, the testator made his will, bequeathing and devising certain specific and general legacies to his children named therein. The object and intention of the testator, as it appears from his will, was to make an equal division of his property among his children upon a final distribution thereof, so far as the amount to be received by each, was concerned, and to accomplish that object, he placed a valuation on the specific legacies bequeathed and devised to each, so that when the general distribution of the property, not speeificially bequeathed and devised should take place, it might appear what was the value of the specific legacy which each legatee had received. In other words, the legatees under his will, were to take certain described property, as specific legacies, at the valuation placed upon them by the testator, or at its appraised value, as a part of their portion or share of his estate, and when the general distribution of his estate should take place, as provided by his will, the specific legacies should be estimated according to the value placed thereon by the tes*355tator, or according to the appraised value thereof. There was a large portion of the testator’s property that was not specifically disposed of by his will. The fifteenth clause of the will provides, that his undevised slaves should be appraised, and divided amongst his children, according to the terms of the will, and that all his other personalty be sold by his executors according to the law for general distribution. The eleventh item of the will gave to his executors the right to sell or keep as they pleased, the balance of his land (not specifically disposed of,) as might be best for all his heirs. At the time of the making of the will, the testator hada large residuary estate to be divided among his children under the will, which had not been specifically bequeathed or devised to any one of them. The sixth item of the testator’s will is as follows: “ I will and direct that my son, Iverson G. Miller, take as part of his portion, the negro man Peter, whom he has now i.n possession, at $1,200 00, and my negro boy Green, at a fair valuation, and that he take at Ms choice, lot of land number one hundred and seventy-nine, at $1,000 00, or lots numbers one hundred and seventy-nine, one hundred and seventy-eight, one hundred and sixty-five and one hundred and seventy-six, at a fair valuation, all of said lots being in the fifth district of the aforesaid county of Randolph.” Iverson G. Miller died before the testator, leaving as his sole heir and legal representative, his infant child, Missouri P. Miller, who is now the legatee undér this clause of the testator’s will.
It appears from the evidence in the record, that Jordan was appointed guardian of Missouri P. Miller, and in 1865, he elected as such guardian, to take for his ward, the four lots of land specified in the testator’s will, at the valuation made by the appraisers of the estate, to-wit: at the value of $2,400 00. It also appears from the evidence of Jordan, that the executor, Louis B. Miller, placed him in possession of the lots of land as guardian, and that he has continued in possession of the same up to the present time, and that the executor assented to the same. The executor testifed that he placed the guardian in possession of the land, on condition that it was decided that the land was *356the property of the estate, and not the property of his ward, and that he did not assent to the legacy unconditionally, but admitted he had never demanded rent, or possession of the land as executor. The only subject matter in controversy between the parties, is in relation to the four lots of land. On the trial, the jury under the charge of the Court, rendered a verdict that the executor had not assented to the legacy, and that the guardian should keep the land at the appraised value, subject to an equal division with the other legatees under the will, and charged him with interest on the value of the land as fixed by the appraisers. The verdict is substantially in accordance with the charge of the Oourt, to which the counsel for the guardian excepted. There are two questions to be decided in this case: First, whether 'the bequest or devise of the four lots of land was a general, or a specific legacy. Second, if it was a specific legacy, can the specific legatee be compelled under the law, to abate that specific legacy, at the instance of the executor, for the benefit of the other legatees under the will, who may have received less than the appraised value of that specific legacy? What is a specific legacy? A specific legacy is one which operates on property particularly designated: Code, 2422. The four lots of land bequeathed or devised to Missouri P., by the testator’s will, are particularly designated, by number, and district, in the county of Randolph. The will distinguishes these particular lots of land from all his other property, and if it is not a specific legacy in the sense and meaning of the law, I confess my utter inability to comprehend what the law means by a specific legacy, as contradistinguished from a general legacy.
The four lots of land are specifically given to the legatee as a part of her portion, to be taken at her choice, at a fair valuation. The fact that the specific legacy is to be a part of the legatee’s portion of the testator’s estate, or that she is to take the designated lots of land at a fair valuation, does not make the legacy any the less a specific legacy, in the sense of the law. The same individual may be both a specific and a residuary legatee: McGinnis vs. McGinnis, 1 Kelly, 496. Mis*357souri P. Miller was both a specific and a residuary legatee, under the testator’s will, and the only reason why a valuation was placed on the specific legacy by the testator was, that when the residuum of the estaté came to be distributed, it might be seen how much in value each specific legatee had received out of his estate. The testator was looking to the distribution of the residuum of his estate among his children, which constituted the greater portion thereof, when he made his will. The next question is, can the specific legatee under the will of the testator, under the law, be compelled, at the instance of the executor, to abate any portion of her specific legacy in favor of the residuary or. general legatees under the will, where, from causes unforeseen by the testator at the time of making his will, such residuary or general legatees have not received as much in value from his estate as the specific legatee ? There are no creditors of the estate.
When this case was before this Court at a former term, at the instance of the executor, the Court gave a construction to this clause of the will, and held, that if the guardian of Missouri P. elected to take the four lots of land at the appraised value thereof, and went into the possession of the same with the assent of the executor, he is entitled to hold • the same as the property of his ward, under the will, without abatement, so far as the executor is concerned: See Jourdan vs. Miller, 41 Georgia Reports, 51. The only disputed fact that exists in the case now, different from the facts that were then before the Court is, that the assent of the executor to the guardian’s taking possession of the land for the benefit of his ward Was conditional and not absolute. The fact that he did take possession is not disputed, or that the executor has never since demanded possession of the land, or the rent thereof, from the guardian, but he now seeks to have the specific legacy abated for the benefit of the other legatees under the will, on the ground, that he never assented to the specific legacy. This is an adroit attempt to evade the judgment of this Court in regard to the rights of the specific legatee under the will of the testator. The assent or dissent of the executor has nothing *358to do with her legal rights under the will. ■ If he has administered it, and turned the property over to her guardian accord- • ing to law, he has no right to interfere with it. The assent of the executor to a legacy may be presumed by his conduct, as well as by his express consent, and he cannot, by capriciously withholding his assent, destroy the legacy, and a Court of equity may compel him to assent to the legacy: Code, 2416. The Court, under the facts of this case, should have compelled him to assent to the legacy, even if his consent could not have been fairfy presumed by his conduct.
The specific legatee was not bound to pay interest to the executor on the value of her specific legacy for the benefit of the other legatees: Code, 2423. But in no view of the law, as applicable to the facts of this case, as I understand it, can the specific legatee be compelled or required to contribute, or abate any portion of her specific legacy, in favor of the general or residuary legatees under the will of the testator, and the executor had no legal right to the possession of any part of it, for the purpose of making distribution thereof to them: 1 Roper on Legacies, 361; 2 Williams on Executors, 1165. The rule is, that residuary and general legacies abate in favor of specific legacies, but specific legacies do not abate in favor of residuary or general legacies under the will of a testator.
But it is said the testator’s intention was to distribute his property equally among his children, that each one should receive the same amount in value; that such was the intention of the testator is quite clear, and if his property had remained in the same condition at the time of distribution, as it was at the time he made his will, his intention could, and doubtless would have been carried out; but it did not remain in the same condition, and it must now be distributed under the law which regulates specific legacies, and general and residuary legacies. The law must now control that matter, whatever may have been the tastator’s intention when he made his will The intention of testators cannot override the law.
As was well said by Nisbet, Judge, in delivering the judgment of this Court in Williams vs. McIntyre, 8 Georgia Re*359ports, 36. “The testator’s intention is imperative on the Courts, unless it is in conflict with some established rule of law. If it is, the law is more imperious than the intention, and the latter will yield to the former. No man’s will is so high in its obligations upon the Courts, as the laws of the land. If the intention could prevail against the law, then the will of a testator would make, or repeal the law, and the effect would be, that there would be no law to regulate the transmission of property by will.” To hold that the bequest or devise of the four lots of land to Missouri P., in the testator’s will is not a specific legacy, would be to ignore the law which defines what a specific legacy shall be. To hold that her specific legacy shall abate in favor of the general or residuary legatees of the testator, and that the executor can recover any part thereof for the purpose of distributing the same to them, would be to ignore the law regulating the payment of specific legacies, and general and residuary legacies under the wills of testators, when the]^ is not sufficient assets to pay all in an equal amount. In my judgment, Missouri P., the specific legatee of the four lots of land specified in the testator’s will, is entitled to haye and hold the same, without abatement, as against the claim of the executor to recover any part thereof, for the benefit of the other legatees under the testator’s will, and that the judgment of the Court below should be reversed.