The opinion of the Count was delivered by

The question presented for consideration here is, whether a legacy of £400 given by Peter Eibe in his last will and testament .to the plaintiff, Henry Brookhart, a natural grandson of the testator, be made thereby a charge or not upon the real estate of which the testator died seised. Though it appears that he had two plantations at the time of making his will, one whereon he resided and devised specifically to his son Jacob Eibe in fee, and the second to his son-in-law, Adam Shitz, during his life, and after his decease to the children of the said Adam by his wife, the daughter of the testator, yet he afterwards in his lifetime sold the plantation devised to Adam Shitz and his children, for the purpose of paying debts which he had created; and after his death, the plantation devised to his son Jacob was taken in execution and sold to raise money for the payment of other debts owing by him at the time of his decease. Of the money thus raised, -after paying the debts, a surplus remained of $493.11-|, which is claimed in this suit by the plaintiff towards payment of the legacy of £400 bequeathed to him, on the ground that it was, as he alleges, made a charge on the plantation, by the testator in his will, from which the money has been raised by the sale of the sheriff. It is true that the testator has declared by his will that the plaintiff shall have £400 out of his estate ; but it is very clear that he did not intend, in any event, that it should be paid out of his real estate; for the two plantations, which appear to have been all the real estate he had when he made his will, or at any time afterwards, were specifically devised as mentioned above, without being made subject, either expressly or impliedly, to any charge whatever. This, however, is not all; for the language of the will, immediately following the bequest of the £400 to the plaintiff, shows conclusively that the testator intended that it should be paid out of his personal and not his real estate, and that he considered his personal estate not only sufficient for that purpose, but that there would be a surplus remaining of it, after paying all his debts and the legacy bequeathed to the plaintiff. By the language'immediately following the bequest, part of the same clause indeed, he directs that *232the bequest shall remain in the hands of his executors until the plaintiff shall arrive at full age, when it is to be paid to him.' Then follows a clause in these words, “ The remainder of the money, after all expenses are paid and besides the £400, shall be equally divided between Jacob Eibe and Adam Shitz.” It may be observed that the conjunction “ and,” inserted between the words “ paid” and “ besides” in this clause, is unnecessary, or rather inserted improperly, and therefore is to be rejected in reading the clause. In the previous part of his will, the testator directs his just debts and funeral expenses to be paid by his executors thereinafter named, as soon after his decease as conveniently may be; that a true inventory and appraisement be taken and made of all his movables and effects, outstanding debts and other personal property, and that his movables be sold by public vendue. But no authority whatever is given to the executors to sell or dispose of his real estate, or any portion thereof, in any event that >may occur, nor to do anything whatever with any part of it, excepting to rent the home plantation for his son Jacob, to whom he had devised it, until Jacob should attain his majority. So that it was utteidy impossible that the legacy given to the plaintiff could remain in the hands of the executors, as directed by the will, unless the personal estate proved sufficient to produce it, because the executors had no authority to raise it out of the real estate. And for the same reason, when the testator directs that “ the remainder of the money, after all expenses are paid besides the £400, (the legacy given to the plaintiff), shall be equally divided between Jacob Eibe (his son) and Adam Shitz (his son-in-law),” he must necessarily be understood to allude to the remainder of the money arising from his personal estate, and to mean the same after paying his debts, the expenses of the administration, and the legacy of £400 given immediately before to the plaintiff. Besides, it is proper to remark that he gives the remainder of this money, after paying the legacy bequeathed to the plaintiff out of it, to his son Jacob and his son-in-law Adam Shitz, in equal parts; which was wholly unnecessary if it was meant to be raised out of his real estate, for he had previously given all his real estate to them and the children of the latter, which would have entitled them to any surplus money raised out of it after satisfying the purposes of the will. This would seem to prove beyond all possibility of doubt that the testator thought his personal estate, at least at the time of his making his will, which was upwards of six years before his death, would be more than sufficient to pay all his debts, beside the legacy given to the plaintiff and the expenses of the administration of it; and therefore directs that the remainder thereof, after doing this, shall be equally divided between his son Jacob and his son-in-law Adam Shitz; thus giving to them the remainder of his personal estate, over and above his real estate, which he had in a previous part of his will devised *233to them and the children of Shitz, as stated above. The surplus, therefore, of the money arising from the sheriff’s sale of the plantation devised to Jacob Eibe, after paying the debts of the testator, must be considered as belonging to the representatives of Jacob Eibe, the devisee thereof; he, as it appears, being dead: so that the plaintiff in this action has no right to recover.

Judgment affirmed.