delivered the opinion or the court:
Washington Miller died, leaving property, consisting of land, slaves, and personalty, worth about $20,000; leaving a widow, by whom he had no children, and four heirs, namely, *9his children, Harriet, Washington, and Isaac, and his grandson, Augustus M. Bell; and leaving the following will, written by himself:
“ First. I give to my son Isaac, in addition to that he has already received, the sum of one dollar.
“ Second. I give to my son-in-law, William Bell, in addition to that he has already received, the sum of one dollar.
“Third. I give to Augustus M. Bell, son of William Bell, the sum of one dollar.
“ Fourth and last. It is my wish that all the property I may possess at my death be lawfully divided between my wife and’ my two youngest children, viz : Harriet and Washington.”
The executor brought this suit to obtain a construction of the will. Harriet and Washington Miller contend that the widow is entitled to only a life estate in the land and slaves, which the law would have given her if there had been no will, whilst she claims a third of all the property absolutely. The circuit judge decided that the widow is entitled to only the interest which the law would have given her if there had been no will; and a majority of us are of the opinion that the judgment must be affirmed.
The appellant’s counsel contend that the word “ lawfully ” applies exclusively to the division, and not to the estate which the devisees are to take in the property when divided. That argument assumes that the testator attached more importance to the mode of dividing the property than to the estate therein to be taken by his devisees; because there is nothing in the will giving to the widow and the two youngest children any interest in the property, except the direction that it shall be “lawfully divided” between them. Moreover, if the testator had contemplated the mode of making the division, and not the estate given to the devisees, he would probably have designated some particular mode of dividing the property, which he failed to do. The estate of the several devisees being ascertained, a lawful division of the property must necessarily follow. Whether it shall be divided by a proceeding in chancery, or in some other mode, must be determined without reference to the will, which, upon that subject, is without meaning or effect. The words “lawfully divided” *10must therefore refer to the estate to be taken lw the devisees.
If the testator had directed the property to be “ divided,” or to be “ equally divided ” between his wife and his two youngest children, she would clearly have been entitled to an equal interest with them; and he would probably have used one of these expressions if he had intended to give her such an interest.
If Harriet and Washington had been his only heirs, there would have been good reason for adopting the interpretation contended for by the appellant, because there would have been no apparent motive for making the will, except the desire to give her more than she was entitled to by law. But the testator’s desire to exclude two of his heirs formed a sufficient motive for making a will; and we perceive no good reason for believing that he had any other motive.
It is urged that the testator did not mean to give his wife only a life estate in the land and slaves, because he did not dispose of the remainder. But, in our opinion, he did dispose of the remainder, by giving the land and slaves to his two youngest children, subject to his wife’s life estate.
We have shown that the words “lawfully divided” must have been used w'ith reference to the estates of the devisees in the property. Used in that sense, those words seem, necessarily, to mean that the devisees shall take their lawful estates in the property; that is, the estates which the law would have given them if there had been no will.
The provisions of the will are substantially the same as if they had been expressed thus: “I wish that all my property be lawfully divided between my wife and my heirs, excepting my son Isaac, and my grandson, A. M. Bell, to each of whom I give one dollar, in addition to what he has received.” If the testator had thus expressed himself, we believe there would have been no reason to doubt that his sole object was to exclude Isaac and A. M. Bell. Our view would be the same if he had excluded only one of his heirs.
In our opinion he intended that his property should go to his wife and his two youngest children, as if he had died intestate without other heirs.
The judgment is affirmed.