delivered the opinion of the Court. The counsel for the appellants have with great propriety declined an argument in support of the first reason of appeal, for it is clear beyond question, that the distributive share of the deceased belongs to his administrator, as the legacy vested in John Grout.
This point being decided in favor of the appellee, his counsel contend that no appeal will lie in the names of the heirs, the estate of the deceased being admitted to be insolvent.
This may be so, but we do not dismiss the appeal on that account, as we think it may save future controversy to decide the case on its merits, and we do not think the decree of the judge of probate is in any respect erroneous
The appellants claim under two clauses in the will of the late Jonathan Grout. By the first clause the homestead farm is given to John, together with two bonds from his *163brother Jonathan, whereby he had obligated himself to indemnify the testator against a certain mortgage on the homestead to Abigail Hale; and in case Jonathan should be unable to pay the sums mentioned in his obligations, then the will directs that one half of the deficiency should be paid by John, and the other half be paid out of the testator’s other estate.
It is agreed that Jonathan the son was not able to pay, and that he died without paying any part of the money due on said mortgage ; so that by the terms of the will, one half of the debt is to be paid out of the estate of the testator.
By the other clause in the will the rest and residue of the testator’s estate is given to his five daughters, “ providing that if this residue shall exceed $ 1000 in value to each daughter, then the overplus shall be divided among all the testator’s children, after firstly taking from such overplus enough to clear the homestead farm for John, if not otherwise done.”
The appellee’s counsel contend that this last clause in the will is to be construed as a repetition of the former provision in the first clause; apd on the other hand, the appellants claim a double legacy equivalent to the whole amount due on the mortgage to Abigail Hale. We do not think it necessary to give any opinion on the construction of the will in this particular ; for upon the facts agreed, it appears to us that whatever may be the construction in this respect, the appellants are not entitled to demand any thing, under this last clause in the will. The object of this clause appears to have been to preserve the homestead to John, and thus to transmit the estate to the testator’s posterity in the male line; and it never can be supposed to have been intended for the benefit of John’s creditors. The testator’s intention was to clear the estate for John, if not otherwise done; and admitting that this might be construed as intending to direct the payment of the whole mortgage, in case John should be unable to pay his moiety, still the object was to clear the estate, so that John might hold and enjoy it. Now this intention of the testator has been defeated by events. The estate is not to be cleared, for it *164has been sold. John died insolvent, and his heirs can derive no benefit from the legacy. We cannot suppose the testator intending to prefer John’s creditors to his other children, after he had before in his will given him what he considered as his full share of his estate. Legacies by implication are not to be supported, unless the testator’s intention is clear, so that no other reasonable inference can be made.
Another objection has been made to the decree of the judge of probate, respecting which, however, we have no means for forming an opinion. The objection is, that there was not interest enough allowed in the legacy given by the first clause in the wifi. , Interest was allowed from 1815, when large sales were made of the real estate by the executor. Our impression is, from the recollection of the facts which appeared in the settlement of the executor’s accounts, that this is right; and that the executor was not in funds to pay off legacies prior to those sales. But be this as it may, it is sufficient for the decision of this cause, that no facts appear upon which this last objection can be maintained, and the burden of proof is on the appellants.
Decree of judge of probate affirmed