Miller v. Worrall. given to language which has a definite meaning in law." Chandler, Executor, v. Thompson, Guardian, 17 Dick. Ch. Rep. 728. Nor will the contention that the words "all the rest and residue of my property," when taken in connection with their limitation by the words "personal and mixed," be deemed to devise realty. The words "all the remainder of the rents, profits and residue of my estate" were held not to be words which would convey real estate when used in the manner that the testator had employed them. Den v. Snitcher, 2 Gr. 53. The words "residue of my estate," though words of sufficient breadth to devise real estate when so intended, will be held to be used in a restricted sense when that intention appears from other words used or direction made in connection with their use in the will. Birdsall v. Applegate, Spenc. 244; Den v. Snitcher, supra; Bullard v. Goffe, 20 Pick 252. The word "property," when used in connection with "property, money and effects," has a restricted import, and does not embrace real estate. Beach Wills § 261; Brawley v. Collins, 88 N. C. 605. The words "personal and mixed" by no construction or recognized legal signification can be extended so as to devise real estate. It will be unnecessary to define "personal." "Mixed property" is said to be "that which, though falling under the definition of things real, is attended with some of the legal qualities of things personal. Also property which, though falling under the definition of things personal, is attended with some of the legal qualities of things real." Am. & Eng. Encycl. L. 697. A better definition is as follows: "That kind of property which is not altogether real, nor personal, but a compound of both. Heirlooms, tombstones, monuments in a church and title deeds to an estate are of this nature." 2 Bouv. Dict. 190; 1 Shars. Bl. (Book 2) 428. Real estate does not pass under a bequest "of the rest, residue and remainder of my estate, consisting in ready money, plate, jewels, leases, judgments or in any other thing whatsoever or wheresoever." Timewell v. Perkins, 2 Atk. 102. Miller v. Worrall. Where the words "residue of my estate" appear, from the context of the will, to have been confined to personal property only, they will not be held to extend to real estate. Cruise Dig. (tit. "Devise") c. 10 § 76. It is quite material in construing a devise of "all my estate," by a testator, whether he has made previous mention of land of which he was seized in fee. Cliffe v. Gibbons, 2 Ld. Raym. 1324. The clause "all my stock in trade, household goods, wearing apparel, ready money, and every other thing, my property of what nature and kind soever," was held not to pass land, being controlled by indications which render the intent of the testator uncertain. Doe v. Rout, 7 Taunt. 79. The rule deducible from all the cases is that if there be uncertainty as to the intent of the testator to devise the real estate in his last will, it will not be construed to do so; in fact, the rule should be stated in this wise, that there must appear from the words used by the testator a clear intent to devise his real estate, otherwise the heir-at-law will not be disinherited. We do not think that by the words "all the rest and residue of my property, personal and mixed, wheresoever situated," &c., used by Caroline A. Riggs in her last will, that there is such freedom from uncertainty as to her intention as to make it clear that she intended to devise her real estate by the third item of her will, but, as to that, we think she died intestate, and that her real estate descended to her heirs-at-law, and to this extent the decree appealed from should be modified. For this purpose the decree is reversed. For reversal-THE CHANCELLOR, CHIEF-JUSTICE, VAN SYCKEL, DIXON, COLLINS, FORT, GARRETSON, HENDRICKSON, KRUEGER, ADAMS, VREDENBURGH, VOORHEES-12. For affirmance-None. Adoue v. Spencer. BERTRAND ADOUE and JOSEPH LOBIT, partners, &c., respondents, v. MARY H. SPENCER, individually and as administratrix, &c., appellant. [Argued November 26th, 1900. Decided March 28th, 1901. 1. A conveyance of land by a husband to his wife by deed through a third party, to secure her for the principal of money of her separate estate taken and used by him, will be decreed to be a mortgage, and good as against creditors to the extent only of the amount of the principal so received by him, with interest thereon from the date of the delivery of such deed. 2. Where such a conveyance is attacked by creditors as voluntary or fraudulent, the burthen is on the wife to establish that her husband took and used her separate estate; but when that fact is established, whether such taking was with or without her consent, the burthen then shifts, and those claiming that such taking and use was by gift of the wife must establish such gift to the husband. 3. The presumption of law is against a gift by the wife of the principal of her separate property to the husband, and the burthen of proving it is upon him who asserts it. 4. The rule here stated does not apply to the income of the wife's separate estate. A gift of that may be implied from its receipt by the husband. 5. The statutes in the several states as to the property of married women, when as broad as the Texas statute or our own, have entirely overthrown the common law rule of the merger of the wife's entity and estate, upon marriage, in the husband. 6. It is unnecessary, under these statutes, that a wife shall take from her husband a promissory note, or other acknowledgment, upon handing him money of her separate estate, to be able to establish that such taking by him was a loan. In the transaction she will be considered as a feme sole, and as if a stranger to her husband. 7. In establishing her claim against her husband's estate, she is not more competent to testify to transactions with or statements by the testator or intestate, when the executor or administrator of her deceased husband is a necessary party, than any other witness. On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 14 Dick. Ch. Rep. 231, where the facts are sufficiently stated. Adoue v. Spencer. Mr. Frank Bergen, and Mr. William T. Austin (of the Texas bar), for the appellant. Mr. Sherrerd Depue, and Mr. John Neethe (of the Texas bar), for the respondents. The opinion of the court was delivered by FORT, J. This was a creditor's bill to set aside a conveyance made by John C. S. Spencer to his wife, passing the title through one Coote. The deed conveyed a one-half interest in property in the city of Elizabeth, in this state. At the time of the conveyance Spencer and his wife were domiciled at Galveston, Texas. The deeds were both dated September 6th, 1896, and the one from Spencer to Coote was acknowledged September 30th, 1896, and the one from Coote to Mrs. Spencer January 30th, 1897. Both deeds were recorded on February 1st, 1897. Mr. Spencer died in Texas in June, 1897.. Letters of administration were taken out there, but his estate was admittedly insolvent at his death. On September 6th, 1898, the orphans court of Union county, in this state, after notice and hearing, granted letters of administration on his estate to Edward Nugent. The complainants in this case presented to the New Jersey administrator a duly verified claim against the estate of said John C. S. Spencer, which, after notice to the counsel of Mrs. Spencer, the widow, and the Texas administrator, and no objection being interposed on her behalf, the same was allowed by the administrator. The claim was upon a note of Ladd & Company, of $12,000, with a collateral note of John C. S. Spencer given therewith. As to the legality of this claim and its rightful allowance we agree with the conclusions reached by the learned vice-chancellor. We also agree with him in his finding that, under the law of this state, a creditor whose claim has been allowed by an administrator is in a position to maintain a creditor's bill to set aside a con Adoue v. Spencer. veyance of land by the intestate, which it is alleged was conveyed to defraud creditors. The case cited by the vice-chancellor was determined in this court, and settles the law upon that subject in this state. Haston v. Castner, 4 Stew. Eq. 697. The consideration stated in the conveyance from Spencer and wife to Coote and from Coote and wife to Mary H. Spencer was $1. The learned vice-chancellor throughout his opinion seems to have treated these conveyances as deeds, while upon any theory that would allow Mrs. Spencer to sustain the conveyance to her, ' her deed must be treated as a mortgage. It surely, upon the most favorable view to be taken of the transaction in her behalf, was only security for an alleged indebtedness due from her husband to her arising out of moneys of hers which he had appropriated to his own use or which she had advanced him, either with or without an express promise to repay, as her evidence and the facts disclosed establish. On this state of facts, even if the transaction were not fraudulent, the creditors would be entitled to an equity in this property, beyond the amount that was justly due to Mrs. Spencer from her husband for money she had advanced and for expenses for betterments and taxes which she may have paid, less rents received since the conveyance to her. That conveyances to secure debts are mortgages is undoubted. Judge v. Reese, 9 C. E. Gr. 387; Melick v. Creamer, 10 C. E. Gr. 429; Cake v. Shull, 18 Stew. Eq. 208; Winters v. Earl, 7 Dick. Ch. Rep. 52, 588. The decree in this case is that there is due to the complainants from the estate of John C. S. Spencer, deceased, the sum of $13,268.60, which is decreed to be a lien upon the lands in the complainants' bill mentioned, and the deeds in question (above recited) are set aside, annulled and made void as against the said debt of the said complainants, and the defendant is to pay costs. The one-half interest in the property in question is admittedly of less value than the amount decreed complainants, and therefore the defendant, Mrs. Spencer (the appellant here), takes nothing by the conveyance of her husband to her. That this decree must be reversed and modified to the extent of the taxes or assessments or both, paid upon the property by Mrs. Spencer, |