¶1We are of opinion, that the testator, Moses Wheat, did not devise nor intend to devise, his lands, and, furthermore, that he did not bequeath any portion of his personal property except his slaves.
¶2We come to this conclusion in part for the following reasons although the testator made a very special and full bequest of his slaves, and although it appears that he had at that time a large amount of personal property other than his slaves (about 18,000 worth), and also lands of considerable value (over $7000 worth), he made no express provision in his will in regard to either, except an unimportant one about taking a few acres from one section and adding them to another. That he did not intend to devise his lands, is further shown by the fact that his will is attested by only two witnesses, when the statute requires three to pass lands.
¶3Again ; in clause seven of this will he says: “It is also my will, that all my heirs that has had property from me, shall render in the amount in valuation at the division of my property, and shall be considered as so much of their shares or part of the estate.” This clause evidently contemplates a division of his property ; that is, of his whole property or estate, and not the particular division of the slaves as directed in the third, fourth and fifth clauses. It further contemplates a division *432among his heirs — that is, heirs at law in its proper legal sense— and not his children then living only, to whom the slaves had been bequeathed under a certain trust or condition. His grandson, as the only surviving child of his father, the testator’s son, was a regular heir at law presumptive of his grand-father; and, besides, the proof shows, that his father, the testator’s son, had received an advancement of about $1200 from the testator. In view of these facts, it can hardly be supposed, that the testator intended to confine the use of the word heirs to his children then living exclusively.
¶4If we have given the true construction to this will, it follows, of course, that as to his lands, and all his personal property except his slaves, Moses Wheat died intestate. Under this construction, there can be but little difficulty in determining the rights of the several parties under the law and this will taken together.
¶5The widow, having dissented from the will, is, of course, entitled to her dower in the lands, and her regular distributive share, which, in this case, would be one fifth of all the personal property after the payment of debts, as there were more than four children. — Clay’s Dig. ITS § 4.
¶6The negroes which would remain after deducting her fifth part, would have to be divided into five shares, as nearly conformable to the directions of the will as possible, among his five living sons and daughters named in the fourth clause of the will, and these slaves they would hold respectively subject to the trust in favor of his grand-son, Francis H. Wheat, created by the seventh clause; that is, as we construe it, under an obligation to contribute respectively so much as would, in the aggregate, make his estate or property in the hands of his guardian, when he arrived at the age of twenty-one years, equal in valuation to their respective shares of his estate at the time of the division of said estate; if, or on condition that lie (Francis H.) arrived at the age of twenty-,one. We may say, in few words, that this will left the land, $ind all the personal property except the slaves, to be divided and distributed according to the law of descent and distribution 5 and as to the slaves, they were bequeathed to the sons and daughters of the testator then living, but on the express trust and condition, that, if his grandson attained the age of twenty-one, and if his estate or property *433did not then in the whole amount to as much as they respectively received as a share of his estate under his will, or otherwise, at the time of the division of said estate, then they were respectively bound to contribute so much as, taken in the aggregate, would make his estate or property equal in value to a share at the time of the division.
¶7The decree of the Probate Court, which excluded Francis H. Wheat from any portion of the proceeds of the sale of the land, or the proceeds of the personal property other than the slaves specially bequeathed as aforesaid, was erroneous.
¶8The advancement to his father in his life-time, made by the testator, should bo deducted from his share, or one sixth part of the proceeds of the land and other personal property, (omitting the slaves,) and a decree rendered in his favor against the executors for the balance, and the decrees in behalf of the others should be modified accordingly.
¶9It has been argued, that he should not be requhed to bring the advancement made to his father into hotchpot, upon some supposed intention of the testator to put his grand-son on a perfect equality with his own children. We cannot discover such intention, and tho clause requiring his heirs who recovered advancements to £C render them in at the division of his property,” is express and plain.
¶10For the error aforesaid, the decree of the Probate Court is reversed, and the cause is remanded, that said court may proceed in conformity with the views expressed in this opinion.