Thompson, Ch. J.
delivered the opinion of the court. There is no othe.r part of the Will that can be called in aid of .this devise, and explanatory of the intention of the testator. It is very clear, that' the devisees took only an estate for dfe.Tliey had not, consequently, an estate of inheritance,- in fee S^mples according to the covenant,in their deed. The cove*127nant has, therefore, been broken. But the defendants, as appears by thecase, are entitled, as heirs at law, to two sixths of the land conveyed by them. Their covenant is, therefore, only broken in part; and the question is, what shall be the measure of damages where there is a 'part failure of title only ? The rule of damages, as settled by this court in the case of Morris v. Phelps, (5 Johns. Rep. 49.) is, to recover damages in proportion to the value of the part for which the title has failed, which in this case would be four sixths of the consideration money and the interest, was it riot for another circumstance which attends this case, which . is, that the defendants, under the will of their father, took a life estate in the whole of the land, and this estate will pass to the plaintiff under their deed. He, therefore, has a title in fee to two sixths of the land, and an estate, for the lives of the defendants, in the whole ; so that no rule adopted in any of the cases on this subject heretofore decided by this court, will reach the present case. Ñor is there any settled rule of law by which the damages are to be ascertained, without having recourse to a jury to assess them, as they must depend, principally, upon the value of the estate during the lives of the defendants, which must be deducted from the four sixths of the consideration money. Nor Ought interest to be allowed during these lives; for no one, during that time, will have a right to turn the plaintiff out of possession, or call upon him for the mesne profits, which is the reason why interest is allowed to be recovered. A venire must, therefore, be awarded, for a jury, to assess the damages, under the special circumstances of this case. . '