— William Autrey, by his will, devised to his wife certain real and personal property during her life, and after her death, to his son John. He also gave his son Alexander certain other propertjr, and charged his íayo sons with the payment of three legacies, of one hundred and fifty dollars, each, in faAmr of his grand-children, to-wit: Joel W. Lee, William 0. Eoss and Sarah E. Eoss. The third clause of his will is in the following language: “ My -will is, that my daughter, Uravia Denson, shall have no more than the two negroes, and their increase, that I have given her, viz: Edy and Mariah.”
The will specifies all the property given by it, but makes no disposition of the residue. The executor and executrix filed an inventory of the property of the testator, from Avhich it appears that the testator had considerable property at the time of his death, not disposed of by will; and the debts *208being paid, Mrs. Denson and ber busband filed their petition in the Probate Court, praying a distribution of the property not disposed of by the will. It was objected, that she was excluded, by the terms of the will, from all interest in the property of the testator, even though not disposed of by the will, and this objection was sustained by the court, and the petition was dismissed. To reverse the action of the court in dismissing the petition, the cause is brought before us by writ of error.
The rule of law was, that if there remained a residue, after the payment of all debts and legacies,’ it belonged to the executor, and he could not be compelled to distribute it, unless, from the whole will, there was a strong presumption, or a necessary implication, that the testator intended to confer on his executor the office only, and did not intend that he should take any beneficial interest in the residue. 2 Will. on Exrs. 898-9. But, by our statute, it is declared, that all such estate, real and personal, as is not devised or bequeathed by the last will and testament of any person, shall be distributed in the same manner as the estate of an intestate, and the executor or executors shall administer the same accordingly. Clay’s Dig. 597. Under this act, it is very clear that Mrs. Denson would be entitled to her distributive share of the property not disposed of by the will, unless she is to be excluded by the will itself, and I am very clearly of the opinion, that she is not excluded.
When no disposition is made of property by will, the law designates who shall take or succeed to it, and I do not see how a testator can control the law, otherwise than by disposing of the property. Suppose a father should, by will, merely provide for the payment of his debts, and then declare that neither his heirs at law nor his distributees should have any of his estate, whether real or personal, who would take the surplus, after the payment of his debts? To hold that his heirs and next of kin should not take, would not only defeat the statute, but would leave the surplus without an owner.
But it is contended, that the will of the testator clearly shows that it was the intention of the testator that Mrs. Denson should only take, of his whole estate, the two slaves named in the third clause, and that being the intention, the residue *209not disposed of by the will should go to the other distributees, excluding her But the answer to this is, that the other distributees cannot claim the residue under the will. The will gives them no title to it, and they must resort to the statute we have referred to, as the source of their title; and looking to that act, they can claim only a distributive share, and all who are distributees can claim with them. The intention of the testator can only affect property upon which the will operates; and even if it should appear that the ancestor did not intend that his heir should take either by will or inheritance, yet if he makes no devise of his land, the heir will take by inheritance. Goodtitle on demise of Baily v. Pugh, 3 Brown P. C. Toml, ed. 454; 2 Jarman on Wills, 21; 2 Mer. 348. So, in reference to personal property: if a bequest be so uncertain that it is void, the next of kin will take, although it be apparent that the testator did not intend that the property should go to any other use than that named in the will. Williams v. Kershaw, 5 Clark & Finly, 111; 3 Leigh, 450. Indeed, to defeat the heir at law or the distribu-tees under the statute, the property must be disposed of by will, and mere words of exclusion, without a disposition of the property, cannot have that effect, for the property not being devised or bequeathed, the statute then designates who shall take.
In the case before us, there is some property not disposed of by the will; that portion, therefore, must be distributed according to our statute of distribution, and as Mrs. Denson is one of the distributees of the restator, she is entitled to a distributive share.
This is the only question we feel at liberty to decide in the present condition of the cause; and as the ruling of the court was opposed to the view we take of the law governing the case, the decree must be reversed, and the cause remanded.