There is a commanding equity in the claim of the plaintiff below which arrests the attention of the court, and which can scarcely be rejected by any principle of law when properly applied. These principles, when aided and guided by chancery doctrines, which we adopt here, will generally be found to sustain the dictates of strong natural justice. The court misapplied the principle, that he who disappoints the intention of the testator shall not be permitted to claim any benefit under the will, because it was not the plaintiff who disappointed the testator’s *80will, but John and Robert Thompson. In the will of the testator, he leaves the farm on which he resided to his son Robert, and another farm to his son John, and then gives to his sons Robert and John another farm which he supposed belonged to him in fee-simple, but to which he clearly had no title, but a life-estate. He bequeaths one hundred and fifty dollars to his daughter Mary, to be paid by his executors out of his personal estate, and, after two or three small legacies more, bequeaths all his personal estate to his son Robert after the payment of the legacies. In a codicil, he affirms the devise of the home-place to Robert, and adds to the devise of the plantation to John these words: “ in case of the want of heirs at his death the same to revert to my son Robert;” and then gives to his daughter Mary the farm in possession of his son James at his death, (being the same tract he had devised in his will to Robert and John as tenants in common, and which had fallen to the father during his life after the death of his son James without issue;) but, if she should think it preferable, she will receive in lieu thereof one hundred and fifty dollars, to be paid by John and Robert between them. After the testator’s death, the heirs sold the land to Hamilton and made a deed. The plaintiff, therefore, did no act of herself to defeat the intention of the testator. The sons asserted their right as heirs of their brother James; it was, therefore, utterly impossible for Mary Thompson to carry out or enforce the will; she did nothing more than acquiesce in the determination of the other devisees. But the principle, as enforced by the court below, would operate as a two-edged sword, and would prevent Robert and John from claiming the personal estate and the two farms devised to them; and Mary would be let into a participation of the whole estate. But this matter of selling the farm to Hamilton, which really belonged to them, was by mutual consent, and in which the two sons no doubt acted the leading and controlling part, ought not to operate to the injury of Mary alone. It appears, from the whole will and codicil taken together, that Mary was to have $150 as a legacy out of the testator’s estate at least. There might be room for a claim of $300, but she asks only $150. It appears, from statements at bar, that John paid her $75, his share of her legacy; and there is full evidence that Robert had repeatedly acknowledged his liability to pay hei* the other $75. Why, then, should a technical rule, intended to embrace cases entirely different from the present, and which, if rigidly applied, would operate with tenfold severity against Robert, be wrested from its proper place to prevent the recovery of a *81legacy acknowledged by the defendant himself to be justly payable by him ?
The plaintiff may have even made her election before the heirs sold the land, because it is proved that Robert said he had left money in the hands of Hamilton (the purchaser) to pay Mary his share of her legacy; and Hamilton testifies that defendant wished him to pay his share of the legacy left in his father’s will to his sister. On the argument at bar, it was stated that John had paid his share, but the time was not mentioned. . But she made the only election left her by bringing this suit; and, as the clear intent of the testator was that she should have at least $150 out of his estate to be paid by his sons Robert and John, who got all his estate, there is neither principle of law nor principle of equity to prevent her from recovering it.
Judgment reversed, and venire de novo awarded.