| Pa. | Jul 3, 1829
The opinion of the court was delivered by
— Both parties claim under the testator, and it is therefore not competent to either to dispute the original title of the other; so that the evidence to show that the defendant’s warrant had not been actually surveyed on the ground, was properly overruled.
As regards the remaining point, the case is a singular one. The testator, erroneously supposing himself to.be the owner of two separate tracts of land, (the smaller under a junior title being located by mistake within the survey of the larger,) devises each respectively to one of his daughters; and the question is, whether the lesser tract, being given to both by successive devises, is to be held by them together, or whether .the devisee of the older title shall take the whole. The smaller, which is first in the order of disposition, is described as a tract of land in Penn township, surveyed \a George Cooperand the larger, as “a tract of land in Penn township, called Nicatenslin, granted by patent.” Hence, an ar- . .gument that the devisee of the larger tract, is to take in exclusion of her sister, not on .the old notion of the last devise in a will being the best, but because she is the devisee of the better title, the •devise of the smaller trapt being void, as it is said, by reason of nothing being left on which it can operate. But, it seems to me, there is a fallacy in supposing that only muniments of title were devised, and that the land , itself did not pass except as an accident of the better title.. Either title was sufficient'to carry the land. The testator could have recovered on the junior title against a stranger, who would not have been permitted to set up another title in the testator himself.' So a conveyance of the junior title would have passed her whole estate in the land. Even a devise of it would do the same against the heir; and why not pass a concurrent estate against another devisee who claims under the same instrument? It is difficult, even in imagination, to separate the evidence of ownership from the ownership itself; or to believe that the testator, having the estate in him, though by different titles, intended to give his.child nothing but one of the badges of ownership, which might prove to be entirely destitute of value. There cannot be a doubt but that he intended to give the land. It has been said that, without assuming too much, we cannot affirm that he would have given it thus, had he been apprized of its being included in a tract which he designed for another. . "With equal plausibility might it be said, that he would not have given the larger tract, as he has done, had he been apprized of its containing within it a smaller one which he designed for" another. The argument would equally prove both devises void for misapprehension, and thus produce ■consequences probably further' distant from what he would have di
Rogers and Smith, Justices, dissented.
Judgment reversed, and a venire.facias de novo awarded.