19 Wend. 367 | N.Y. Sup. Ct. | 1838
By the Court,
The judge was right in refusing to nonsuit the plaintiff on the ground that she had' not proved herself in possession of the premises, because for aught that appeared she was in possession, if the construction of the will contended for by her was correct. Possession would follow the legal title, no adverse possession having been shown. The provisions of the statute, 2 R. S. 317, 320, § 1, 16, upon which the motion was probably founded, do not require a pedis possessio to entitle a party to institute proceedings in partition.
The only material question in the case turns upon the will of the plaintiff’s husband, in respect to the estates of his son Daniel and his wife, and of their daughter Jane. The testator directed his executors to retain in their hands “ the one half of lot No. 137, containing sixty acres of land, for the use of D. B. and ‘ his wife during their natural lives’ ” —and after directing that he should pay the annual rent reserved on it, he devised to Jane, after the decease of his son Daniel and his wife, “ the equal undivided half of said lot to her and her heirs forever.” The lot No. 137 contained about 120 acres, only the west half of which belonged to the testator ; and it is insisted that he intended to devise but a moiety of this half to his son Daniel and his wife ; and of course a third of the other moiety would pass under the will to the plaintiff. It appears to me the clause will not bear this interpretation—the words define naturally and distinctly, his whole interest both by a general and particular description—“the one-half of lot No. 137, containing sixty acres of land.” The specification of the acres embraced in the one-half of the lot, clearly indicates what the testator meant by the use of this general phrase, if a doubt could otherwise have been raised upon it, under the circumstances. He must have intended to describe his entire interest. Nothing short of this can satisfy the words. The plaintiff is obliged to contend that when the testator uses the terms the one
As the verdict was taken for the plaintiff, subject to the opinion of the court, the defendants are entitled to judgment.