delivered the opinion of the Court. The first question to be considered is, whether the respondent (the widow of the testator) had a right to litigate in the Probate Court, concerning the estate which was there under consideration.
The case finds that there will be intestate property to the amount of $2500, after paying all demands against the estate, exclusive of the land directed to be sold. Now the widow is by the will to have one fourth of the proceeds of the land ordered to be sold ; but she is by law entitled to have one third of the estate undisposed of, unless she is excluded from that share of the personal estate, by the provisions of the will. .
It is contended for the appellant, that the widow is so excluded ; that the provisions of the will are to be taken as embracing all the interest that the testator intended she should have in his estate ; and that the case falls within the meaning of Revised Stat. c. 60, § 11. But this enactment relates to a claim of dower under certain circumstances, and the claim of the widow which was before the Probate Court and now here, relates to the share of the personal estate of which the testator died intestate.
Now here is no claim for dower; but the appellant contends, that it plainly appears from the will, and from the great value of the estates therein devised to the wife, that it was the intent of her husband to exclude her from taking any share in the distribution of the personal estate which she would be entitled to have if there were no will.
By the Revised Stat. c. 64, § 1, the personal estate remaining after the allowance to the widow of her ornaments, &c. shall be applied towards the payment of the debts of the intestate ; and if he leaves a widow and issue, she is to have one third part of the residue of the same. The testator did leave a widow and issue, and he has left a large personal estate undisposed of by the will. We do not think that there is any thing m the will which clearly shows that he intended to exclude his widow from claiming a distributive share in the personal estate which he should leave undisposed of. She would be entitled by law to claim one third of such residuum and to hold the same for her own use. She had an interest to increase that fund, by having the proceeds of the land ordered to be sold, applied towards the payment of the debts ; for by the will she has one fourth only of the proceeds remaining of the real estate which was ordered to be sold. She had therefore an interest to have the proceeds of the land (in which she was interested eventually one fourth), applied towards the payment of the debts, before the personal estate (in which she was eventually interested one third) should be so applied. The respondent had, therefore, a right to litigate in the Probate Court and obtain a decree favorable to her claim, if by law she were entitled to the same.
We proceed then to the second and main question ; which is, whether the testator intended that the proceeds of the land
The executor (the appellant) gave credit in his account for $6936-75, personal estate, and charged against that amount the debts which he had paid, amounting to $ 5876-89 ; but the judge of probate, on the application of the widow, (the respondent,) rejected that charge, on the ground that the proceeds of the land which the testator directed to be sold, should be first appropriated towards the payment of the debts. In the clause of the will directing the sale of certain real estate, it is said-that, “from the proceeds of such sale or sales, after paying all demands in the settlement of his estate, the executor should pay one fourth part to his widow,” &c. &c.
Now we do not think that the testator intended by his will to alter the rule of the law applicable to the appropriation of personal estate, before real estate, towards the payment of debts. He meant that no distribution of the proceeds of the real estate should be made, until after all demands against his estate should have been settled. We do not think that he intended to postpone the application of the personal estate until after the money to arise from the sale of the land ordered to be sold, should have been applied.
The provision in the will above referred to seems to us to be perfectly consistent with the usual and legal appropriation of the personal estate before the real estate for the payment of debts. If the personal was not sufficient, then the money to arise from the estates ordered to be sold was to be applied. He made no disposition of the personal estate. It was left to be applied according to the rules of the law.
If he had intended to have his debts paid out of his real estate, it would seem requisite that he should have expressed such intent, beyond reasonable doubt or question, as it would be entirely contrary to the well known rule of the law ; but this we think he has not done.
Wherefore the Court here doth order, that the decree of the judge of probate disallowing the account of the appellant, for the reasons therein assigned, be and hereby is reversed ; and the Court here doth further order and decree, that the personal