The first question presented for the advice of this court is, what constitutes the residuum mentioned in the third clause' of the will ? Is it the whole of the estate after deducting the legacy mentioned in the preceding clause, or is it the balance after paying all the legacies, debts and charges ?
Bouvier defines residue to mean “ that which remains of something after taking away a part of it; the residue of an estate is what has not been particularly devised by will.” As used in wills its ordinary meaning is, that portion of the estate which is left after the payment of charges, debts and particular legacies. The presumption is that a testator uses it in this sense, unless a contrary intention clearly appears. The mere circumstance that, in the arrangement of a will, the word residue is used, and the greater part of the particular legacies and bequests are subsequently given, will not of itself be sufficient evidence of such an intention, especially if such an arrangement can be otherwise accounted for. In the present case-it is quite apparent that the testator intended to provide for his wife in the first instance. Accordingly all the •bequests to her are found grouped together in the second and *265third clauses, except a contingent bequest, which is found in the tenth clause. The pecuniary legacy to her absolutely in the second clause, is immediately followed in the third with a gift of the income for life of one-tliird of the residue of his estate, and that is followed with a life estate in the furniture, pictures, books, &c. The place in the will therefore in which this bequest is found is not a sure guide to the testator’s intention. Much must necessarily depend upon other circumstances — the nature and amount of property, the relation which the testator sustains to the objects of his bounty, and the disposition of liis property generally. These and the language of the will afford safer indications of the testator’s mind.
A careful consideration of the terms of this will, viewed in the light of. the circumstances surrounding the testator and those to whom he left his property, fails to satisfy us that he used the word in any other than its ordinary meaning. He possessed a large property. He left a widow and two children, a son and daughter, and he doubtless intended that his widow should be supported in her accustomed style.
The testator manifestly intended to divide the bulk of his property into three equal parts. Before doing so, however, he gives to each of the three principal legatees a pecuniary-legacy, absolutely. The difference in the amount of the sums so given is unimportant in this connection. These and the other particular legacies are comparatively small in amount, so that most of his property is disposed of as residue. The widow’s share in the residue is given in these words; “ I give and bequeath to my said wife the use and income of one equal third part of all the residue of my estate, &c.” This indicates but one residuum, and his obvious intention was to divide that into three equal parts, one of which is given to the wife, during life or widowhood, and the other two are given by the eighth section to the two children. In this way effect is given to all the words used by the testator, and the equality contemplated by -him is preserved. On the other hand, if the claim that there are two residua, differently constituted, is sustained, the equality will be destroyed. And *266more than this; such a construction not only fails to give-effect to the word “equal,” but is at variance with the sense intended to be conveyed by the use of that word.
Again, the alleged special residue embraces not only tlie particular legacies and bequests given in the subsequent sec-' tions to other parties, but also all the bequests, except that contained in the second section, to the widow herself. So that property, the use of which is wholly given to her during life, and- estimated by the learned counsel for the executors at more than $80,000, is returned, so to speak, to the residue, and made to increase her share in that residue; thus,' in respect to that property, practically giving' her four-thirds instead of three. In other words, the testator, professing to give her an “ equal third,” is made to give her one-third of the aggregate, and then to ■ give her a considerable sum in addition from the remaining two-thirds. This, to sdy the least, ,is an unusual constitution of a residuum.
We think it hardly admits oí a doubt that the testator intended that the furniture, pictures, books, &c., the use of which is given to the wife in the third section, should be taken from his estate, as well as. the pecuniary legacy to her in the second section. If so we see no good reason why the s.ame intention should not apply to the gifts in the fourth section, as they are of the same general character. Now if a part of the property subsequently disposed of ought to be taken out before reaching the residuum, why not the whole ? No reason for a distinction exists, either in the language of the will, or the order of the several bequests. We must either stop with the second section and construct a residuum there, or wait until the particular legacies and bequests are paid. We think the latter is the better construction.
■ We therefore advise the Superior Court that the term “ residue,” in the third clause, includes only such property as shall remain after satisfying all the particular legacies and bequests.
The next question is, whether the legacies given in the , eighth section to the children, are estates in fee simple, or life estates merely.
After giving the remainder to his two children, to be divi*267ded equally, the testator adds; “ and if either of my said children shall die leaving issue, the portion of such child shall go to his or her issue in equal shares.” Language like this devising real estate generally, will doubtless create an estate tail; and when used with reference to personal property, may vest in the issue an interest as an executory devise; unless there is something in the will showing a contrary intention. A careful consideration of all the provisions of this will has led us to the conclusion that it was not the intention of the testator to create an estate tail, nor to vest a life estate merely in the children.
A largo portion of this estate is personal property; and the real estate affected by this clause, the testator in the tenth clause directs to be sold and converted into personalty. We do not deem it necessary to consider whether such a bequest of personal property may not create an absolute estate, as wo think it an inference deducible from the whole will, that it was in the mind of the testator to provide for the contingency of the death of his- children, or one of them, during his lifetime. That he contemplated the possibility of such an event is obvious, for the bequest in the fifth clause vests only in the child or children living at his decease. If the children had died during his life time, with or without issue, this bequest would have failed. To guard against a ■lapse, the provision now under consideration was inserted in the eighth clause. This interpretation makes that clause consistent with itself. The language, “ all the residue and remainder of my estate, of every hind, and description,” was manifestly intended to prevent any portion of his estate from becoming intestate. But if it is held that the children take a life estate only, then, in the event of their dying without isstie, a large portion of the estate becomes intestate, unless the widow survives them, in which case it is disposed of by the tenth clause.
A different construction makes this clause inconsistent with the ninth, so far as the daughter’s share is concerned. The eighth clause vests the estate in the issue of the daughter equally; the ninth gives the daughter power to dispose of *268it by will to and among her issue in such shares as she may thinló proper. These two provisions harmonize, if we consider the first as taking effect only in case the daughter had died before the testator, and the second as taking effect in case she survived him and takes under the will.
If the testator had’intended to give the son a life estate only in his share of the residuum, or to have qualified his interest therein, why did he.not say so in clear and unmistakable language ? In creating a life estate in the widow, he does so in language which leaves no doubt as to his meaning. In engrafting limitations upon the daughter’s share, he was careful to do so expressly, and not to leave it to implication. There is no indication in the will that he intended the son’s share should be a qualified estate except in the concluding sentence of the eighth clause. If that qualifies it in the manner claimed, then the son is less favored than tlie daughter, for he is denied even the privilege of directing in what proportion liis issue shall take.
It must be remembered also that at the time this will was written, February 7th, 1868, neither of the testator’s children were married. It is not probable . that he would materially abridge or limit the enjoyment of his estate by his children for the benefit of 1ns unborn grandchildren.
Wo concede that the view we take of this question creates a difficulty in supplying anything for the tenth clause of the will to operate upon. That difficulty however may be obviated, perhaps, by inserting in the first line the words, “ in my lifetime.” Or, if that is inadmissible, that section may apply .to the principal, the income of which is given to the widow during life or widowhood in the third section.
On. the whole, while we admit that this question is not entirely free from doubt, we think the construction we have adopted involves less difficulty than any other, and gives effect to the probable intention of the testator.
The third question is, what does the testator mean by the word “ portion,” as used in the ninth clause, in which he says, “ And in regard to the portion of my daughter, I direct that the same be settled upon trust for her, &c., ? Docs ho mean *269the bequest- in the eighth clause only, or does he mean that all the bequests to her should be placed in the hands of a trustee ?
All must agree that the word “portion” used in the eighth clause refers simply to her share in the residuum. Perhaps it is a fair inference that, in using it so soon afterwards, and so neai’ly in connection with the eighth clause, he intended to use it in the same sense. An argument against this may be drawn from' -the fact that, in the intervening sentence, the first sentence in the ninth clause, he speaks of the “ several bequests herein made, <fcc.,” evidently intending all the bequests to the children. The answer to this is, that if he had intended to make all the legacies subject to a trust, he would have continued the use of the word “bequests,” in providing for the trust, and would not have used the word “ portion ” in a different sense from that in which he had so recently used it.
If all that the daughter was to receive from his estate was intended, it must of course include the furniture, portraits, silver and china ware, plate, &c., given by the third section; and also the Bible given in the fourth section. The nature of this property forbids the idea of a trust, which is somewhat inconsistent with a beneficial enjoyment of itat least so much so as to make it improbable that the testator would desire to subject it to a trust. Besides, the property placed in trust by the ninth section is spoken "of as property producing an income ; and this kind of property ordinarily produces no income. He could not therefore have intended this as a part of the portion placed in trust.
For similar reasons he could not have intended to include the daughter’s interest in the third of the residuum, the use of which was bequeathed to the widow; for the income from that during the widow’s life was to go to her and not to the daughter. Pie manifestly contemplated the trust property as yielding a present revenue for the benefit of the daughter, and the widow as executrix was to assist in settling this trust. It will hardly be contended that she was to place in trust for the daughter a part of.her own share in her husband’s estate *270during her life. We think therefore that it is reasonably certain-that this legacy is not a part of the “ portion.”
It only remains for us to consider the bequest of $50,000. If this stood alone there would be more doubt about it. But it is a contingent bequest, and is expressly associated with the ' property given in the third section, upon the death or marriage of the wife, and is an addition thereto. As that is given in terms denoting an absolute estate, to her “ heirs and assigns forever,” there is some room for the inference that this bequest also was intended to be without restriction. But however this may be, all the property give2i in the third and fourth sections being excluded from the operation of the trust, as we have seen, we think that this legacy should also bo excluded, for the reason that the trust must either be limited to the bequest in the eighth. section, or embrace all the bequests. There seems to be no room for supposing that the testator had in view one of the prior bequests a2id not the others.
For some reason the testatorsaw fit primarily to give to his wife the sum of $10,000, and to each of his children, if livhig, $50,000. These legacies are given in terms which indicate the gift of the whole intei’est without qualification or restrictio2i. Having separated this sum from the daughter’s share in the residue, we look for a reason. He evidently supposed that she would have a family, and consequently woull require the comforts and conveniences of a home. The sum here given is not a2i unreasonable sum for that pulposo. The Supposition is a' natural one, that, Í21 the choice of a home, he would make her entirely independent of a trust.
Another reason perhaps, equally as ’ satisfactory, may be found in the natural and probable desii’e of a father to give to his only daughter, and she one of two children only, a reasonable sum in fee simple, to her' sole and absolute use. If the language used by the testator will .admit of a eonstructio2i which will produce this result, and we think it will, it ought to prevail in preference to one which will trammel every dollar of her property with a trust.
*271While the language of the will is inartificial and somewhat confused, yet we think it is tolerably clear that the testator’s intention was that the daughter’s share in the residue only should be subject to the trust.
The daughter in her answer asks that some one in the state of New York may be appointed trustee, but that is not insisted on. The question then arises, how is the provision in the will relating to a trust to bo carried out ? It seems to us quite clear that if the testator had intended that the executors should be trustees, the language raising the trust would be quite different from what it is. “ I direct that the same be settled upon trust for her, Ac.” “ And I hereby direct that my executors cause such settlement to be made by deed or instrument in suitable form, &c.” This language clearly implies that some person or persons other than the executors should bo trustees.
We advise therefore that some suitable person or persons in this state be selected to hold the trust property.
The fourth and last question is, whether the papers found with the will, and supposed to be referred to in the second clause of the second codicil, are to be regarded as testamentary papers.
It will be observed that these papers are not descriptive papers merely. When the paper referred to is a map, as in Tonnele v. Hall, 4 Comst., 146, or a deed, or other similar paper, and referred to for the mere purpose of describing the property intended to be disposed of by the will, there may be no practical difficulty in admitting it to the extent and for the purpose intended. But the" papers referred to in the present case are not for the purpose of describing the property, but for the purpose of showing what disposition the testator intended to make of it. Whether under any circumstances a paper disposing of property, and which is not actually embraced in the will itself, can, under our statute, be regarded as a part of the will, is a question of great practical importance. The statute provides that “ all wills shall be in writing, subscribed by the testator, and attested by three witnesses, all of them subscribing in his presence, and no will or codicil *272shall be valid to pass any estate, real or personal, unless it shall be so executed.”
We are not aware that this question has ever arisen before in this state. No lawyer, to our knowledge, in preparing -a will has been bold enough to risk the experiment. On the contrary, the almost universal sense of the profession has been, that a will, iii all its parts, must be subscribed aiid attested in the manner required by statute. The very fact that no case can be found raising the question, in a practice of more than a hundred and fifty years under the statute, and that the cases in our sister states arc almost as rare as in our own, is certain y a strong argument against the propriety .of admitting any unattested paper to probate. Even in this caso^the papers in question have never been admitted to probate. The court of probate has never passed upon the question, and it docs not appear that any party interested ever contended that they were or should be considered and treated as á part of the will, until the cause came into the Superior Court, and that court for the first time is asked to give them validity and effect. But passing by this irregularity, it must be conceded, we think, that the course contended for, if sanctioned by this court, will be regarded as a serious innovation. Its tendency will be to render uncertain and confused the testamentary disposition, of property, and open a wide field to litigation, to say nothing of the temptation to fraud and imposition. And when all this is done what good results from it ? We are not aware of any evils attending the existing practice that the proposed innovation will remedy, nor do we believe that any benefit or advantage whatever will be the result. If so it is manifestly unwise to introduce a change which, so far as we can see, is fraught only with evil. But nevertheless, as this question has not been argued, we do not wish .to be understood as deciding the point. We prefer to leave it undetermined, and to rest our decision entirely upon grounds so ably discussed in the argument.
The rule established in England admitting such papers, we understand tó be this: First, the paper must'be in existence at the time of the execution of the will; and, secondly, the *273description must not be so vague as to be incapable of being applied to any instrument in particular, but must describe the instrument intended in clear and definite terms. Allen v. Maddock, 11 Moore’s Privy Council R., 427.
. Neither of these conditions existed at the time the second codicil was executed. None of the papers were then in existence, and but for the execution of the subsequent codicils, it is not contended that they could be received.
Nor are the papers sufficiently described. The property is given to the executors “ to be disposed of by them in such manner as I shall, direct, by written instructions in my handwriting, to be loft with my will.” This description is “ so vague as to be incapable of being applied to any instrument in particular.” It is true all these papers were left with the will, were in the handwriting of the testator, and contained instructions relating to the disposition of this property. But the vice is that no particular paper is referred to. Any number of papers, written at any time before his death, however inconsistent with each other, or contradictory even, may answer perfectly the description given. Where there are several papers, as in this case, each answering the description, it is impossible for the court to lay its hand on any one of them and say this is the paper referred to, this contains the instructions by which the testator intended his executors Should be governed. No case, we think, can be found, in which papers, so loosely and indefinitely-described as these, have been admitted to probate.
This difficulty, whatever may be said of the other, is not removed by the execution of the subsequent codicils.
We therefore advise the Superior Court that the documents found with the will form no part of the will, and cannot be regarded as testamentary papers.
The same reasons apply, with nearly equal force, against allowing these papers to operate as a declaration of the trust upon which the estate in question was conveyed to the executors. Allowing them thus to operate is in effect making them a part of the will.
As it was clearly not the intention of the testator to give *274-the property to the executors, that section of the codicil ■becomes inoperative, and the property remains as it was, a .part of the residuum.
The Superior Court is advised to instruct, the petitioners, upon the various questions submitted for its advico, in accordance with the foregoing views.
In this opinion the other judges concurred.