The decree of the judge of probate allowed the executrix to sell the whole of the real estate, meaning, we presume, the whole embraced in the inventory, not being specifically devised, on the ground that, by force of the additional clause in the will, each of the money legacies mentioned in the fore part of the will should be increased in proportion, so as to take up the whole estate of the testator. This is the decree appealed from.
It is, in the first place, contended that the clause under the “ N. B.” is explanatory only, and no part of the will; but there seems no color for this objection. It is true that it is explanatory, and in addition to the foregoing ; but it is authenticated in like manner, and is executed in precise conformity with the statute of wills. Rev. Sts. c. 62, § 6. . It certainly is no objection to an instrument, that it appears to have been twice executed and attested in due form of law.
What then is the legal effect of this clause ? It is true that the court will so construe a will as not to disinherit the heirs, unless, from the whole will, the intention of the testator to do so is clear. But the court are of opinion that the testator did intend to dispose of his whole estate, real as well as personal, and not to die intestate. There are no words limiting the personal estate only, as the fund for the payment of legacies; nor does he devise the real estate over. Then, by force of the general law, the undevised real estate is a fund for the payment of specific legacies, and liable to be sold under license for that purpose. It could not therefore have been the intent of the testator, that the pecuniary legacies should abate, if there was estate enough, real and personal, to pay them.
*193In the alternative clause in the supplement, as well as in the body of the will generally, he makes no distinction between real and personal property, but uses terms which, in their ordinary import, cony both, such as “ my property,” “ my estate,” “ my whole estate.” If the whole is to pass by the will, nothing is left to pass by descent, and he does devest the rights of the heirs at law.
In the commencement of this clause, the word “ if” is probably omitted; but the sense is the same; the second branch of the alternative shows the effect of the first. The words “ property ” and “ estate,” in the two branches of the alternative, are precisely equivalent; and as the second assumes, hypothetically, that there might be more property than sufficient to pay all the debts and legacies, he could not have intended to say absolutely in the first branch that he had not property enough to pay all the debts and legacies. The will then goes on to provide that, if there shall be more estate than sufficient to pay debts and legacies, the preceding legacies shall be enlarged proportionally, so as to include his whole estate.
When the words “ property ” and “ estate ” have been held to be limited to personal, we think it has been where there were qualifying words, or where these general terms were so connected or mixed with words expressing only things personal, as to limit then meaning. Such was the ground of decision in Bullard v. Goffe, 20 Pick. 252. Here the enlarged legacies are not given by implication, but in express terms.
The gifts of notes and debts to children, we think, were principally intended to release advances and forgive debts, and were loosely denominated gifts; yet they are to be deemed legacies, in this additional clause, and then the increase is to be computed on Ihem as pecuniary legacies given.
So far altering the decree as to limit the license to the estate inventoried, excluding the estate in Athol specifically devised, we think the decree of the judge of probate in other respects must be affirmed.