delivered the opinion of the court.

The general rule upon this subject seems to be as well settled as any in the law. A residuary legatee will be intended to take whatever may by lapse, invalid disposition, or other casualty, fall into the residue after the date of the will. 2 Roper on Legacies, 453. The same rule is laid down in 2 Maddock, 94, where it is stated upon a review of all the authorities upon the subject, “ that a residuary bequest carries not only every thing not disposed of, but every thing that is ill disposed of, and every thing that in the event turns out, not to be disposed of, whether by a partial revocation of a will, a lapse, or by a gift being void.

The case of Durour v. Motteux, 1 Vesey Sen. 320, is, in principle, precisely the case under consideration. Motteux devised all his real estate to trustees, to sell and dispose of the whole with his personal estate, for the payment of his debts and legacies.

He then gave 1200 pounds to be' invested in the purchase of freehold lands for charitable uses, &c. This legacy being void by the statute of mortmain, the question was, whether it should go to the heir, or residuary legatees; and Lord Hardwicke decided, that it belonged to the latter. He says that the land having been directed to be turned into money is to be treated as such, and having thus showed it to be a personal bequest, goes on to remark, “ that the court cannot say, because one of the personal legacies is void, that for that reason, contrary to the express will, he intended to die intestate. Giving the residue over, includes every thing. Let it fall in, by reason of that legacy being void.”

In Leake v. Robinson, 2 Merivale, 392, the same principle is recognised and enforced. After deciding that the bequests to the grandchildren in that case were wholly void, the court proceeded to the inquiry whether they belong to the heir or residuary legatee. It is then said, that every thing which is ill given *341by the will, falls into the residue, and that it must be a very peculiar case indeed in which-there can be at once a partial intestacy and a residuary clause. It is immaterial how any part of the property is undisposed of, whether by the death of a -legatee- or the illegality of the bequest. Either way it is a residue. It may in words have been before given, but if not effectually given, it is undisposed of and included in the denomination of residue. A testator supposes, that each part of his will is to take effect, and consequently, cannot be said to have any intention to include in his residue, any thing he has before given. Hence, we take it that the rule of intention, which is cardinal in the construction of wills, where there is any doubt upon the language of them, and which is so strenuously invoked in this case by the counsel for the appellees, cannot here be the criterion. It is evident that the testator did not intend that the slaves in question should belong either to the heirs or the residuary legatee. He intended that they should be emancipated — that intention is defeated by the operation of our fundamental law, and the settled policy of the state, and the question of ownership must be determined by the established rules in such cases. The limitations of a particular bequest, and those of the residue, may be quite incongruous, and yet what is not disposed of will fall into the residue. Here, express intention in favor of either heir or residuary legatee is out of the question, yet the courts refuse the bequest to the heir, on the ground that it is contrary to the express will of the testator, to support those he intended to disintestate as to that bequest. It is, therefore, thrown into the residue. “ And this rule will not be made to yield to the probability that the testator would have given the illegal and void legacy to others. That would be to undertake to make a will for the testator, contrary to established rules. Gore v. Stevens, 1 Dana S. Rep. 206. We have not been able to find one case in which this principle has been departed from.

In devises of land, a different rule, it is true, prevails; the distinction is noticed in the several cases to which we have referred, and it is Avell settled, that “ real estate not disposed of, or ill disposed of, goes to the heir.” The reason of this distinction appears to exist in the desire of the courts to prevent the resi*342duum from going to the executor in one class of cases, and to the benefit of the heir in the other. 1 Dana Rep. 206. This distinction must have decided the case of Green v. Dennis, 6 Conn. Rep. 292, which is relied on by the counsel for the appellees. We have not been able to find the book, but it was evidently a devise of real estate, and as the devisee was incompetent to take, the court very properly determined it to belong to the heir instead of the residuary devisee.

An objection is raised against the claim of John W. Vick as residuary legatee, on the ground that Burwell Vick who has the life estate in the slaves, by claiming as heir against the will, has removed all benefit in the residue clause, and, therefore, that, during his life, distribution should be made. Burwell Vick is a lunatic, and cannot be prejudiced by any step taken by another; the court feel bound to regard his rights as they arise under the will, and not suffer them to be impaired by any mistake which others may have committed as to the nature or extent. They do not conceive the bringing this suit any renunciation of his rights under the will. It cannot affect the rights of John W. Vick, because he is the trustee for Burwell Vick, and is invested with the entire control and management of the property during his life. The property could only be taken from him to subserve the purposes of the trust. The bill does not go upon any ground of complaint against the appellant for the management of this trust.

We are, therefore, of opinion, that the appellees cannot recover the slaves in controversy, and that the decree of the chancellor should be reversed, and the bill dismissed with costs to the appellant.