(after stating the facts). The rights of the parties in this action, depend upon the construction to be given to the will of Andrew Neagle under which they both claim, and after giving the case a careful consideration, we are led to the conclusion there was no error in the interpretation given to it by his Honor, in the judgment rendered by him in the Superior Court.

The first great rule, says Mr. Christian, in the exposition of wills, and to which all other rules must bow, is that the intention of the testator, expressed in his will, shall prevail, provided it can be effectuated consistently with the limits and bounds which the law prescribes — 2 Black. Com., 381, note 15 — and Chief Justice Ruj\FIN, in the case of Proctor v. Pool, 4 Dev., 370, said, “No rule can be laid down for ascertaining the intention of the maker of a deed or other instrument. But his intention is to be collected from the whole instrument;” and in Lassiter v. Wood, 63 N. C., 360, it was held that “the general and leading intention of the testator, must prevail, where it can be collected from the will itself, and particular rules of construction must yield something of their rigidity, if necessary, to effect this purpose.”

In the will under consideration, it is evident that it was.the intention of the testator, to give a fee simple in the land in controversy, to his son John E. Neagle, notwithstanding the devise of the north end of the house, the kitchen, &c., to the defendant.

*343 Unquestionably, if tliis devise to the defendant had stood alone in the will, hy virtue of the act of 1784, The Code, §2180, she would have taken the fee simple therein. For the act provides, “When real estate shall he devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the mil, or some part thereof, that the testator intended to convey an estate of less dignity.”

But the statute, while prescribing a rule of construction, still leaves the question open as to the intention of the testator, to be collected from the whole provisions of the instrument. The main and leading intention of the testator, to be gathered from the will, is to give the fee simple to his son John in the home place, which included the dwelling house, and the devise of one end of the house, &c., and “ as much laud as she can employ her hands on, and what she needs of the barn and stable,” was secondary, and must be construed to be in subordination to the general devise of the whole — a different construction would derogate from what was the manifest intention of the testator, that is, that John shall have the fee simple in the home place. This interpretation is in accordance with the doctrine announced by the Court in Ross v. Toms, 4 Dev., 376, where it is held “when there is a particular and a general paramount interest apparent in the same will, and they clash, the general interest must prevail.”

Applying this principle to the case under consideration, our opinion is, the defendant by the will of Andrew Neagle, took only a life estate in so much of the land described in the pleadings as the “home place,” as embraces the northern end of the dwelling house and the north kitchen, and what she needs of the barn and stable, and so much of the land besides, as she can employ her hands on, to-wit, the negroes named and given in the will, and also what she needs of the lumber-house and smokehouse, and to have the use of the cotton gin, gearing and screw, and the wagon, when she needs them. . And the plaintiffs, by *344 their purchase at the sale under the mortgage and execution, are entitled in fee simple to the residue of said tract of land and buildings thereon, including the cotton gin and screw, to have the gin and screw, smoke-house and lumber-house, the houses to be subject to the use of the defendant, as tenant in common for her life in the described property, and thus far we sustain the judgment of his Honor in the Court below, and his judgment is affirmed to that extent.

But when his Honor proceeded further to adjudge that the plaintiffs were entitled to a partition, and to appoint commissioners to make the partition, he committed an error, and that part of his judgment must be reversed.

This is an action to recover the land in controversy, in nature of ejectment. The plaintiffs and defendant are tenants in common. The defendant had ousted the plaintiffs, and the action is brought by the plaintiffs to recover the possession, to which their right entitles them.

It would be violation of all the established rules of practice and procedure, in an action like this, to render a judgment which appertains exclusively to proceedings for partition, which should be brought before the Clerk.

The judgment of the Superior Court is affirmed, except so much thereof as is herein reversed. The costs of the appeal must be paid by the plaintiffs.

Affirmed and modified.