21 Ala. 273 | Ala. | 1852
— There are two errors manifested in this record for which the decree must be reversed.
But the Probate Court seems to have treated these slaves, or the money arising from the sale of them, as a portion of the estate of the testator not disposed of by the will, and consequently ordered it to be distributed among the heirs at law of the testator, as in case of intestacy. In this, I think the court clearly erred. It is well settled that a lapsed or void legacy of personal property, goes to the residuary legatee. 1 Jar. on Wills, 302; Taylor v. Lucas, 4 Hawkes 215; James v. James, 4 Paige 115 ; Gore v. Stevens, 1 Dana 206 ; Van Kleeck v. Ref. Dutch Church, 6 Paige 600; Hayden v. Stoughton, (5 Pick. 528-537-538. As, then, these slaves were the property of the testator at the time of his death, and. are not otherwise disposed of by his will, they pass to James, John P. and Robert P. Roberson, William A. Coleman and P. H. Castlebeny, under that clause in which the testator bequeaths to them, “the balance of my (his) property of every kind,” or the proceeds thereof when sold.
Neither Mrs. Madden, Mrs. Enlow, nor Willis Roberson, is entitled to any part of it as heirs at law of the testator. If the legacies bequeathed to them have not been paid by the executors, they have their remedy against them as legatees, but no claim whatever as distributees of the estate of John Roberson, deceased.