When the primary purpose and a secondary purpose of a testator conflict, or when from unforeseen events, •the secondary purpose cannot be carried into effect, without ■defeating the primary purpose, the secondary purpose must ..give way — for illustration, see Lassiter v. Wood, 63 N. C. Rep. 360.
*367We refer to this case for illustration, because in tbe application of tbe general rule, every case must, like tubs, stand on its own bottom.
While agreeing with bis Honor as to tbe general rule of construction, we differ from him in regard to its application to our case. Tbe only purpose of the testator -was to make an equal division of bis estate among bis children and grand children, considering each to have received advancements, as ■set down in his booh. So tbe equality is made to depend upon bis books, in which be made entries and which is referred to in bis will.
Thus it is seen that the testator bad no primary and secondary purpose, or “ general and particular intent.” He bad only one intent, to divide what he owned at his death among his children, and grand children taking the place of parents deceased equally, according to the amount he had put down in his book. Upon the face of the will, the land deeded to Jonathan and John, not being entered in “ the book ” cannot be taken into the account.
Going outside of the will, and putting. ourselves as near as may be in the position of the testator wdien he made the will, wo are not able to account for the fact that the testator does not charge Jonathan and John with the lands for which he had given them deeds in 1854, upon “ his book of account,” except on the ground, that in consequence of one and then the other living with him, and acting as his general agent and overseer for many years, up to the time of his death, he intended the land as compensation, and not as an advancement, or he intended to make a gift and not an advance to his favorite sons. It was his estate, why should he not dispose of it as he pleased? “His book of accounts of advancements” dates back to 1850, itemizes and dates each advancement, charges John and Jonathan with certain advancements at dates prior and subsequent to the date of the deeds, but does not charge them with land, one $8,000 the other $4,000.
*368This cannot be taken as an omission — an act of forgetfulness. The value is too large to have been overlooked.
There is error. This will be certified.
Per Curiam. Judgment reversed.