64 Mass. 155 | Mass. | 1852
This is a real action brought to recover an eighth part of a tract of land in Blackstone. The demand-ants claim the one eighth in right of the wife, as sister, and
The only question is, whether the land in question passed by this devise. This must be ascertained by the intent of the testator, to be ascertained from all the terms he has used, to be interpreted by the light thrown upon them by all the surrounding circumstances. In construing a devise, expressed in brief descriptive words like the present, we are almost necessarily constrained to look beyond the will, to
Much evidence of this sort was introduced in the present case, and submitted to the court to draw all such inferences from it, as a jury would be warranted and required to draw, upon the just weight of the evidence. Upon a full consideration of this evidence, the court are of opinion that the estate in question did pass by the devise.
The devise was of “ the farm whereon I now live, consisting of about 150 acres, and all the buildings thereon.” The testator was then sole occupier of the house, in which he had long resided with his father, and had succeeded, by his father’s will, to the title, and was owner of all the real estate, including the premises in controversy. It is conceded that the estate in question was once part of the farm of Peter Gaskill, senior, and the principal circumstance supposed to distinguish this from the residue, was, that two small lots had been sold off, for house lots, lying between the main portion of the farm, on which the dwelling-house stood, and the parcel in question, which was nearer the village or business part of the town, and which the Gaskills, senior and junior, had formerly proposed to sell off for house lots. It is not easy to make the case quite intelligible without the plan; but it is not very material. The fact was that, by this sale, the part in controversy, formerly an admitted part of the farm, ceased to be contiguous or adjoining to the main farm on which the buildings stood; some buildings were erected on it, and portions of
Having been once a part of the farm, we think that there is no decisive act showing the intention either of the father or son to sever it from the farm. The word “ farm ” is one of large import both in England and in America, though, perhaps, somewhat different in the two countries. In the former, it commonly implies estate leased; but as to the term, it is said to be a collective word, consisting of diverse things gathered into one, as a messuage, land, meadow, pasture, wood, common, &c. In this country, a man is generally the owner of his farm, and it is a parcel of land used, occupied, managed, and controlled by one proprietor. In the case of Taylor v. Mixter, 11 Pick. 347, it was strongly intimated, though it did not become necessary to decide the point, that the term " homestead ” might include land not contiguous to the dwelling-house, if intimately connected and used with it, and also that “homestead farm” might have a broader'signification than the word “ homestead ” used alone. The letting of small portions of it, for the season or for short terms, did not sever it; nor did the intention to sell it for house lots, not executed.
Nor is it material, in our opinion, that the farm exceeded the number of acres estimated by the testator. The subject of the devise was the farm, and whether it exceeded or fell short of the estimated quantity, was immaterial, otherwise than as it might tend to show the intent of the testator. Bacon v. Leonard, 4 Pick. 277. But there is evidence tending to show that after his father’s death, the testator and his brother looked over the deeds, by which the farm had been acquired, and estimated it at 130 acres.
The survey, testified of by Luther Warfield, as made by Davenport in 1849, is of no weight; it does not appear for what purpose, or at whose instance, it was made. The land in controversy had been previously surveyed, separately, and the probability is, that the surveyor was employed so to survey the