dissenting in part: — The unanimous decision of this court that the bequests in Item 6 of the will are demonstrative legacies, leaves but little in this case beyond the . naked principles of law, which however are too important to be ignored. It is admitted that under the construction of the court, the bequests in items 1, 2, 3, 5 and 11 are utterly valueless. Aside from the bequests of one thousand dollars each *505to the Thomasville Baptist Orphanage and the First Missionary Baptist Church of Goldsboro, they are legacies of nominal value, mere tokens of affection, intended perhaps to purchase some memento of the testator. It seems a pity that these little gifts from a dying hand to those he loved and to the church in which he worshipped, cannot be paid. They were as much the objects of his bounty as those whose larger gifts have been increased by the decision of this court, by the process of acceleration. No one can more fully appreciate the benefits of education than I, or more deeply appreciate the noble conduct of those who give or labor for the elevation of others; but these feelings have no room in the consideration of this matter. I am now seeking to find the intention of the testator as expressed in his will. It is his purpose and not my own that I am attempting to effectuate. But it is said that the dissent of the widow has defeated the intent of the testator, and that we must now construe his will in accordance with legal principles and judicial decisions. That is true, but judicial decisions are merely the declaration of legal principles, and such principles are, with the single exception of the rule in Shelley’s case, rules of construction intended to ascertain the true intent of the instrument under consideration.
It is clear that the testator intended his widow to take whatever she might get from the property mentioned in items 1 and 8, because he said so in plain words. This seems to be an appropriation of that property to the claims of the widow, and while she may get more than the testator intended, and get it in a different way, I see no reason why the property he himself pointed out should not first be exhausted. He did not intend that the devises to the college and the orphanage should take effect immediately, else he would have said so, and would not have said that they should be postponed to *506tbe just claims of his widow for an adequate support during her few remaining years.
The court cites the cases of Adams v. Gillespie, 55 N. C., 244; Holderby v. Walker, 56 N. C., 46 and Wilson v. Stafford, 60 N. C., 647, but they do not support the general principle as enunciated by the court, because they are based upon the particular facts in each case. All of them seek to carry out the intention of the testator, as far as possible, and in none of them are there conflicting legacies which are destroyed by the acceleration. If a man leaves his property to his widow for her life, with remainder to his only child for her life, with a further remainder in fee to her children, of course the daughter’s estate is accelerated when the widow dissents, because there is no one else to take the property. If the daughter did not take as devisee’, she would take as heir. It is true that this court has said in Adams v. Gillespie, that “The dissent of the widow has removed her life estate from all the property given to her by the will, and which she does not take independently of it, and the effect of it is to hasten the enjoyment of the life estate devised and bequeathed to the testator’s daughter.” But the court in the same case further says, “It is unnecessary to decide whether Mrs. Whit-tington (the daughter) takes the real estate for her life by implication from the will, or by descent, or being undisposed of by the devise. It is certain that she takes it the one way or the other because the interest of her children in it is expressly postponed until her death.” The court further decides in that case that, “In alloting the widow’s share, she must have, as a part of it, half the value of the girl Jane, and for the purposes of a division, the girl must be sold.” The only apparent reason for this ruling is that the tuill provided that the widow should have half the value of Jane, and it seemed proper that when the widow dissented from the will, she should take, as part of her distributive share, the identi*507cal property bequeathed to her by the will. What the court really said in Holderby v. Walker was that, “It is admitted by the parties to this controversy that the dissent of the widow to the will of her husband discharges the share of his estate, which she takes under the law, from the burden of maintaining and educating the infant defendant Elizabeth Ellington. It is admitted further that as the life estate intended by the will for the widow is removed out of the way as to all the property which has not been assigned to her, such property has or will by the assent of the executor become vested in possession;” that is, that upon the facts of that case there was no contention between the parties on that point, and therefore it was not really before the court.
In Beddard v. Harrington, 124 N. C., 51, in an opinion concurred in by Chief Justice Eaircloth himself, this court directly decided the question against acceleration. Another interesting case is that of Lassiter v. Wood, 63 N. C., 360, in which the testator specifically devised his lands to his sons, and directed that his daughters be paid ten thousand dollars each out of his estate. The war practically destroyed his personal property. This court held that as the paramount intent of the testator was the equality of benefit between his children, the pecuniary legacies to the daughters were “chargeable upon the lands devised to the sons so far as is necessary to produce equality among all the children of the testator.”
These principles may make but little difference in the pecuniary result of this action, but they are of far reaching importance and may unjustly affect other cases in the future.
I come now to the last point upon which I dissent. It seems that this mere' promise, for I see no element of a contract, to donate a thousand dollars has been amply adeemed by a most generous legacy, and should not now come in as a debt to destroy other legacies of equal merit, such as that to his home church.
*508Popular education is one of the noblest objects of a Christian age, but a gift should be the deliberate act of the donor. To construe into a contract a merely voluntary promise made upon the spur of the moment and perhaps under the influence of religious fervour, would in my opinion be subversive of the highest principles of jurisprudence as well as of public policy. In this case the promise was clearly within the ability of the testator, who was a man of clear and deliberate judgment, but in other cases it might not be, and its legal enforcement might be oppressive to the promisor and unjust to a dependent family.
My views are so clearly and strongly expressed by the Supreme Court of Massachusetts in an opinion delivered by Chief Justice Gray, afterwards on the Supreme Court of the United States, in Cottage St. Methodist Church v. Kendall, 121 Mass., 528; 23 Am. Rep., 286, that I will close this opinion by the adoption of its language. Its numerous citations are omitted for the sake of brevity. There are numerous other decisions to the same effect, but this is sufficient to express my views. The court says:
“The performance of gratuitous promises depends wholly upon the good will which prompted them, and will not be enforced by law. The general rule is that, in order to support an action, the promise must have been made upon a legal consideration moving from the promisee to the promisor. To constitute such consideration, there must be either a benefit to the maker of the promise, or a loss, trouble or inconvenience to, or a charge or obligation resting upon, the party to whom the promise is made. A promise to pay money, to promote the objects for which a corporation is established, falls within the general rule. In every case, in which this court has sustained an action upon a promise of this description, the promisee’s acceptance of the defendant’s promise was shown, either by express vote or contract, assuming a *509liability or obligation, legal or equitable, or else by some unequivocal act, such as advancing or expending money, or erecting a building, in accordance witb the terms of the contract, and upon the faith of the defendant’s promise. Where one promises to pay another a certain sum of money for doing a particular thing, which is to be done before the money is paid, and the promisee does the thing upon the faith of the promise, the promise, which was before a mere revocable offer, thereby becomes a complete contract, upon a consideration moving from the promisee to the promisor ; as in the ordinary case of an offer of reward. . . . The suggestion in 5 Pickering 508, substantially repeated in 6 Metc., 316 and in 9 Cushing, 539, that ‘it is a sufficient consideration that others were led to subscribe by the very subscription of the defendant’, was in each case but obiter dictum, and appears to us to be inconsistent with elementary principles. Similar promises of third persons to the plaintiff may be a consideration for agreements between those persons and the defendant; but as they confer no' benefit upon the defendant,, and impose no charge or obligation upon the plaintiff, they constitute no legal consideration for the defendant’s promise to him. The facts in the present case show no benefit to the defendant and no vote or contract by the plaintiff, and, .although it appears that the chapel was afterwards built by the plaintiff, it is expressly stated in the bill of exceptions that the learned judge who' presided at the trial did not pass upon the question of fact whether the plaintiff had, in reliance upon the promise sued on, done anything or incurred or assumed any liability or obligation. It does not, therefore, appear that there was any legal consideration upon which this action is brought.”Clark, C. J., concurs in dissenting opinion.