Opinion by
Wickham, J.,John Law, the testator, in and by the first four clauses of his last will and testament, gave portions of his real estate, particularly described, to certain of his children. The fifth and sixth clauses are as follows: 5th, “ To my son George I give and bequeath, absolutely, the sum of one hundred dollars, or land to the value of one hundred dollars, whichever he may elect to take, and, if he takes the money, the same to be payable within one year from my death and to remain a charge upon the land until paid; if he elects to take in land the same shall be selected by my executors as soon after my death as he, (George) shall desire.”
*3436th, “ To my son James I give and bequeath the sum of five hundred dollars and the rest and residue of my personal property, absolutely, after payment of expenses first above mentioned. And I also give and bequeath to my son James and his wife Bridget, for the term of their natural lives, and the natural life of either of them, the entire use, rents, income and profits of the rest and residue of my real estate after above allotments.”
A disposition of this residuary real estate, to take distributive effect after the death of James and Bridget, is made by the seventh clause of the will.
By a codicil, the legacy of $500, originally bequeathed to James is given to Mary Dugan. The language of the codicil is as follows: “ This my codicil, made the 4th day of August 1886. That the five hundred dollars I have heretofore willed to my son James, be changed and paid to my grand daughter Mary, child of my daughter Kate, deceased. ” The will contains nothing further to throw light on the testator’s intention respecting this legacy, or to indicate the rank that should be accorded it.
We fail to find anything in the will tending to support the appellant’s contention that the legacy is charged on real estate. Certainly there is no express charge and, as the learned judge of the court below has well pointed out, no blending of the residuary real and personal estates to create a charge by implication.
The position taken by the appellant in his third assignment of error, that a decree pro confesso should have been entered against the parties, who failed to answer the citation, is entirely untenable. Even if none of the parties cited had appeared, it would still be the duty of the court to examine the petition, whereof the will is a part, and to give such judgment as the law, applicable to the matters therein contained, will warrant: 3 Rhone’s O. C. Practice,270.
A petition which, on its face, shows that the relief prayed for cannot legally be granted, really needs no answer, save that contained in the decree dismissing it, although, following the maxim “ Abundans cautela non nocet, ” it is always well to put one in.
All the assignments of error are overruled.
Decree affirmed and appeal dismissed atr the cost of the appellant.