"In the name of God, Amen, etc., and as to what worldly estate it has pleased God to bless me with, I dispose of in the following manner:

"Item, first: It is my will that all my property, consisting of lands, stock of every kind, household and kitchen furniture, wagon and farming tools, be sold at public sale, and the money thence arising to be disposed of as follows, viz: all my just debts to be paid and funeral expenses, then to each of my heirs at law, viz., my mother, Ann, and sister, Nancy, I give and bequeath the sum of $50 each, provided they should call for it in the space of three years from this date, and all the balance it is my will that it go to the use of the Presbyterian churches in the following manner: After paying the expenses of settling my estate, the one-third to Hopewell Church, one-third to Sugar Creek Church, and the other third to the use of Pan Creek Church. It is my will that my executor sell my negroes at private sale, giving to each one of them a choice of masters, that can make a choice. It is my will that Isaac Fraser execute this my last will and testament, and I do hereby revoke any and all former wills by me heretofore made. Witness, etc."

The plaintiff averred that the negroes were expressly included in the first clause giving the property to the three churches, and were stricken out of it solely to enable the executors to sell them at private sale, and thus permit them to select their masters; that the plaintiff and the (349) testatrix both though there was a clear disposition of the proceeds of the sale of the slaves, similar in all respects to that of the other parts of the estate. The trustees of the three churches and the next of kin were made defendants, and the prayer was to have the mistake corrected, or to have a declaration made of the title of the churches to the proceeds of the sale of the slaves.

The next of kin denied any mistake in the draft of the will to be within their knowledge, and insisted upon their right to the sales of the slaves.

The cause was heard upon bill and answer before SEAWELL, J., at Mecklenburg, on the last Spring Term, who ruled:

1. That the bill and answer fell short of ascertaining satisfactorily the truth of the alleged mistake.

2. Upon the construction of the will, that "although it professed to dispose of what worldly estate the testatrix possessed, which words were equivalent to all her estate, yet that the proceeds of the sale of her negroes was not disposed of; that it might be said of the testatrix, Voluit sed non dixit. That the legatees, if they take at all, must do so by an express bequest or by a necessary implication of one, neither of which appeared. That the next of kin are those on whom the law casts the estate in default of a different disposition." His Honor then proceeded to ascertain the several sums due the legatees and the next of kin, and decreed accordingly, from which the trustees of the churches appealed.

RUFFIN, C. J.

The cause being set down for hearing upon the bill and answers, and the mistake in drawing the will not being admitted in the answer of the next of kin, who alone could effectually admit it, the allegations of the bill upon that subject must be declared not to be established, and the case must be decided upon the construction of the will as written. The Court, however, would not be understood as intimating an opinion that it would have been otherwise if the mistake had appeared upon evidence, or even by the answer. It (350) is intended, as the questions of the admissibility of proofs and of their effect do not arise in the case, to leave them altogether unaffected by the decision.

In the court of equity it was declared that the proceeds of the slaves of the testatrix devolve upon her next of kin, as being undisposed of by the will. From that decree the trustees of the religious societies to which the charitable bequests are made appealed; and the only question made here is whether the decree in that respect is right. I fully concur in the opinion delivered by the judge. I should think with him if the whole depended on the first clause of the will alone. It is true, the testatrix set out by declaring that she intends to dispose of "what worldly estate it had pleased God to bless her with," and next says, "It is my will that all my property, etc., shall be sold at public sale, and the money arising therefrom disposed of as follows,"which is sufficient, unless qualified by something else, to carry everything. But here, after those general words, "all my property," follow "consisting of lands, stock of every kind, household and kitchen furniture, wagon and farming tools," which, I think, do qualify the force of the preceding larger terms, and confine the bequest to the subjects particularly denominated. Doubtless there may be cases in which a subsequent enumeration would not be held to be restrictive of the general words. If I give "all my property and estate, my lands, my slaves, my money on hand and due on bonds," stock in funds or in banks or money due on account might pass. The superadded particulars would be rather cumulative than restrictive, and evince that those things were known by the testator to be of the estate, and were intended to be disposed of; but it would not show that those things alone were in his contemplation. The legacy would not be confined to the particulars enumerated, because not restricted to them in terms; but the enumeration would rather be considered as defective in itself, and things ejusdem generis might pass under the broader terms. But (351) when the term used does not convey the idea that the testator is endeavoring to let it be understood what kind of things he intends to give, but emphatically to express what things he is giving, the general expressions must be controlled by the particulars, and the bequest confined to the very things specified. Here, "all my property" is controlled by "consisting." It is not "all the property" absolutely, but all that "consisting of," or which consist of land, stock, etc. It is not a defective enumeration of the things intended to be given, but is a precise description of the specific things given, and of all of them. Suppose there had been money or bonds in this case. Nobody would have surmised that they were intended to pass as a part of "all my property," especially when it is recollected that besides the restriction on those words, created by "consisting of" certain particulars, amongst which are not money or debts, there is a provision in the clause that the property thereby given is to be sold at public sale, which is altogether inapplicable to money, whether due or in hand. If, then, one thing, not of the articles enumerated, would not, by reason of the restriction, pass by this bequest, how can any other thing not thus specified pass? The restrictive effect of "consisting," in context with "estate," or "property," principally produced the decision in Clark v. Hyman, 12 N.C. 382, and in the case cited therein by TAYLOR, C. J., of Timewell v. Perkins, 2 Atk., 102.

But whatever doubt might rest on that clause, standing by itself, it is removed by the subsequent one, which relates to the negroes specially. From that it is clear they were not intended to pass by the first, because they are directed to be disposed of by private sale — a manner different from that of the articles enumerated in the first. This difference being in the contemplation of the testatrix, she must be considered as purposely withholding them from the former provision for the sale of the latter. Although she afterwards makes no actual disposition of the proceeds, that does not bring those proceeds again within the operation of the clause from which they had been designedly excluded.

(352) Another question is made in this court, whether the debts and funeral expenses of the testatrix, and the legacies of $50 each to her mother and sister, are to be paid out of the surplus or out of the fund in which the churches have an interest. In our opinion, the latter is the proper construction. The general rule is that the residue, even when bequeathed, is the primary fund for such purposes, although there be a charge upon another part of the estate. This, however, is not a question upon the effect of a charge, but rather what is given to each legatee, and out of what fund payable.

The penning of this will is very particular. After turning the whole estate, except the negroes, into money, by directing a sale, come these words, "the money thence arising to be disposed of as follows, to wit, all my debts and funeral expenses paid; then to each $50, and all the balance, that it go" to the churches. This is a precise division and appropriation of the whole fund, and determines the interest of the churches to be what remains of it after paying out of this very fund the preferred demands. If this fund had failed, the legacies to the mother and sister would have failed also; for they are payable out of it. "The money thence arising" is to pay them. It is true, that could not bind the creditors; but the question is as to the intention, and that is what we are to consider in determining the legacies in charity. The balance is given; of what? Of the money arising from the sale, out of which had before been given a sum to pay debts and legacies. These are first given out of this particular fund, and the balance, as the balance after answering the other purposes, is given to the churches.

The charges of administration are to be paid out of the residue; but the debts, funeral expenses, and the two legacies of $50 each, must, according to the express words of the will, be paid out of the proceeds of the sale of the other parts of the estate, as mentioned in the first clause, and the decree reformed accordingly.

PER CURIAM. Decree affirmed.

Cited: Simms v. Garrot, 21 N.C. 396; Alexander v. Alexander, 41 N.C. 231; Kilpatrick v. Rogers, 42 N.C. 46; Champion, ex parte, 45 N.C. 250; Bunting v. Harris, 62 N.C. 11.

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