By the Court
— Emmett, C. J.The complaint states that the Plaintiff, Lucy, is the daughter and one of the heirs of Barna Young, deceased; that said Barna died seized of certain real estate; that 'the Defendant, Rebecca, is the widow and the others are the children of the deceased; thot they are, and ever since the death of said Barna, have been, in the occupancy and possession of said real estate, to the exclusion of the Plaintiffs ; and that they refuse to partition or apportion the same, and demands a partition of said lands.
The answer denies all right of the Plaintiffs, or either of them, to the land described; sets up a will of the deceased, duly admitted to probate, through which the Defendants claim the exclusive title, and makes a copy thereof a part of the answer. <
To the answer the Plaintiffs interpose a demurrer, on the ground that it did not state facts sufficient to constitute a defence, because, as they contend, the will is void for uncertainy, and because it appears therefrom that said Lucy Case is not provided for, and the omission was accidental and not intentional.
The Distinct Court overruled the demurrer, and gave judgment for the Defendants.
The will is in these words, omitting the formal commencement and conclusion :
“ First, I give and bequeath to my wife, Rebecca Young, the one-third of all real estate and personal property as long as she shall remain my widow, and from after that time to go back *215with the balance to the two sons, or their heirs, excepting the household furniture she is to have at her request. Second, to my eldest daughter, Iluldah Sophia, wife of John G. Bass, the sum of fifty dollars two years after my death, by the two sons, or their heirs, each to pay one-half. Third, to my son David Young the north half of the real estate, divided from east to west, and also to have one cow. Fourth, to my son Jacob B. Young the south half of the real estate and all the balance of the personalty except the tool chest and the tools. David to have all the tools and chest. Fifth, and lastly, to my daughter Lucy, wife of "Warren Case, the sum of ten dollars, to be paid three years from my death, after all debts are "paid —the balance to be divided according to my request and last will and testament.” Bebecca Young, David Young and John G. Bass were appointed executors.
The uncertainty alleged is in.the description of the real estate. It is insisted that it does not describe any real estate whatsoever.
Had the language used been “ of my real estate,” or “ of the real estate I now own,” or “ the real estate of which I shall die seized,” it is admitted that it would have been sufficiently certain; because it could be easily ascertained what real estate the testator owned at the date of the will, and the word “my,” or “seized,” would clearly have indicated that he referred to his own lands. But are we to suppose that the testator here intended to devise, or referred to the real estate of any other person? "We ought not to presume that he intended an impossibility, but should ascertain, if possible, what his intention was, and give effect to it.
"We held in the case of Winslow et al. vs. Baldwin, that where the meaning of an instrument is certain and intelligible, the subject or object to which it is to be applied may be ascertained by extrinsic evidence, if it can be done without a departure from the rational meaning of the words actually used ; and that if the meaning is involved in uncertainty, the intention may be ascertained by extrinsic testimony, and when so ascertained, will be taken as the meaning of the parties, if such meaning can be distinctly derived from a fair and rational interpretation of the language employed.
*216Applying this test to the case at bar, we find no difficulty in ascertaining from the will itself, that it was the intention of the testator to devise lands to his sons; and extrinsic evidence, if indeed that would be necessary, would be admitted to identify his own lands, as the subject or object to which the term “ the real estate,” as used in the will, applied.
The next position taken upon the argument is, that although the will might be good as to the Defendants, it is void as to the Plaintiffs under that section of our statutes which provides that “ when any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child, or the issue of such child, shall have the same share in the estate of the testator as if he had died intestate.” It is urged that the intention to provide for the Plaintiff Lucy, to the extent of ten dollars, at least, is apparent, and that the testator omitted, by mistake, to provide the means by which that sum can be realized — having, as is claimed, disposed of all his property by specific devises before she is reached.
"We do not think this statute applies to a case like the present, — where the intention is plain that the devisee should not receive any benefit from the estate, beyond a limited sum; but to a class of cases which, without a statutory provision, have always appealed strongly to the favor of Courts of equity. Such, for instance, as where a testator has omitted the name of a child under the belief that the child was dead, or the issue of a deceased child, in ignorance of the existence of such issue.
Nor do we think it is at all certain that the devise to the Plaintiff Lucy, although the last named, and not to be paid for three years after the testator’s death, may not yet be required first to be provided for by'the executors. The will expressly says that it is “ to be j>aid after all the debts are paid —the balance to be divided according to the will.” What balance is here alluded to, if not the property remaining after paying the debts and this legacy to Lucy ?
The judgment of the District Court must be affirmed, with costs.