¶1I think the intention of this will is very plain, so plain as to control the technical force of the words, if there was any conflict, which I think there is not. The testator was without children, and his heirs at law were two half sisters. His wife was evidently an object of his bounty, and to advance her was clearly the reason of his making a will. This he does largely by bequests *43 of personal property, slaves, and a sum of $500 in money, and then comes the provision that the residue of his estate, both real and personal, shall be divided between his said wife, Elizabeth, and his two half sisters, viz: Ruth Burton and Mary Short, as the law directs, giving his said wife her lawful part of the said residue. There can scarcely be a doubt that he meant by this to leave the division and distribution of his real estate as the law would dispose of it in case of intestacy; for though he made a will, it is evident that it was made for other purposes than that of disposing of the land out of its legal course of descent, that purpose was answered by the liberal advancement of his wife out of the personalty; and when he came to the land he merely expresses the will and desire that it shall be divided between his wife and two half sisters as the law directs, giving to the wife her lawful part thereof. I know of no terms in which he could have more plainly expressed his purpose not to controvert the legal descent of the land, or in other words to leave it precisely as if he had made no will; nor can there be any doubt as to what law of descent he referred to; there is but one law regulating the descent as between widow and heir at law, and that is the intestate law of 1827; the act of 1816 is an act which fixes the widow's right of dower as against creditors, and protects it from the incumbrances of the husband.
¶2In my opinion, then, the widow of John C. Burton took under the will of her husband one half of his real estate for life, and the two half sisters the other half in fee, with remainder also in fee in the half devised to the widow.
¶3It is true, that where a devise is to stocks and representatives of stocks in the same degree, and the persons are all named, they take per capita, and not per stirpes; but this is not the case of a devise to stocks and representatives of stocks; and if it were there is such a manifestation of intention as would control it. Here is not only the direction to divide the estate between the wife and the two half sisters, but the manner of the division is to be as the lawdirects, giving the wife her lawful part. By this is meant the intestate law, which directs the division to be one-third to the widow for life; or, in case there are no children or issue of children, then one half to the widow for life. This ambiguity in the will is settled by the fact appearing in the cause, that there were no children or issue of children, a fact to which we necessarily look in construing this will.
¶4I think, therefore, that the decree of the chancellor should be reversed, so far as it directs an assignment to the widow of one-third *44 in fee; and that the assignment should be to her of one moiety, but only for life.