Williams v. . Lane , 4 N.C. 246 ( 1815 )

The case was spoken to at a former term by Gaston for the petitioners and Browne for the defendant, when the Court, not having formed an unanimous opinion, it was continued under advisement till this term. In this case the testator, Theophilus Hunter, devised as follows: "I give and bequeath to my grandchildren by my daughter Jane as follows, to wit: To my grandson, Alfred Lane, 350 acres of land, being the upper part of a tract of land of 700 acres purchased by me of James Lane, lying on Crabtree Creek; also, to my granddaughters, Patsey Lane and Jane Lane, I give and bequeath the lower part of the same tract of land, to be equally divided between them."

The tract contains, by actual survey, 1,100 acres of land, and the question is whether the defendant is entitled to 350 acres, being the upper part of the tract, or to one-half of the tract.

The meaning of the testator is always to prevail when it can be fairly inferred from the words he has used, and when it does not contravene any known or established rule of law. It does not follow, because the testator describes the tract in question as a tract of 700 acres, and (247) devises to the defendant 350 acres, being the upper part of the same, that he intended to give him one-half of the tract. Suppose the tract only contained 500 acres, could the Court say that the testator only intended that the defendant should have 250 acres, when he has expressly and specifically devised to him 350 acres? We apprehend not.

It was decided in the case of Powell v. Lyles, 5 N.C. 348, that describing a tract of land as containing a specific number of acres did not vary the case from a description of a tract by so many acres, more or less. If the testator had described the tract to be 700 acres, more or less, no question could have been raised. In our opinion, the words he has used mean nothing more than if he said 700 acres, more or less. Wherefore, a majority of the Court are of opinion that the defendant, Alfred Lane, is entitled under the will of the said Theophilus Hunter to 350 acres of land to be taken from the upper part of the aforesaid tract, and that the petitioners are entitled to have the residue of said land divided between them equally.