Jackson ex dem. Merritt v. Wilson , 12 Johns. 318 ( 1815 )

Spencer, J.,

delivered the opinion of the court.

The intention of Samuel Sherwood to devise the premises in question to his brother, Job Sherwood, it appears to me, is quite plain and manifest. After devising one third of his estate to his wife, and the residue to his daughters, the will proceeds: “ I give unto my brother* Job Sherwood, all my weami£ apparel : and as there is some expectation of something coming-to me of my brother Isaac’s, deceased, estate,, which is not comprehended in the above, I give it unto my said brother, Job Sherwood, for ever.’’

The case furnishes full evidence, that the devisor had taken no measures relative to the lot in question; and it is a fact which we have a right to notice, that, in 1786, no lands had been granted for military services;. the legislature had> by resolution, declared their intention to make grants, and had passed one or more statutes to carry that resolution into effect; but the devisor did not, and could not, know where those lands were situate: he was correct, therefore, in calling it an expectation of something coming to him from his brother Isaac’s estate; and I am entirely satisfied that it related to his military bounty lands. He explicitly declares that the estate he expected to derive from Isaac was not comprehended in his devise to his wife and daughters, and he.gives it by words, which, in the construction of wills, carry a fee to his brother Job. ,

If, however, the lot did not pars to Job, by this devise, it is sufficient to defeat the claim of the lessors,- that it was not devised to his daughters; for by the act of the 5th of April 1803, (revised in 1st R. L. 305.) this military lot went to the father of Isaac Sherwood, unless it passed by the will of Samuel ; therefore, in every view of the case, the lessors of the plaintiffs Iiave no title to the premises.

Judgment for defendant.