Bear v. Bear ( 1850 )

The opinion of the court was delivered, by

Burnside, J.

This was a case stated in an amicable ejectment and submitted on printed arguments. The question arises on the last will and testament of David Bear. He devised to his son Samuel and to his heirs, “ all that certain tract of mountain land of nineteen acres, be it more or less, as surveyed and marked off, now in possession of his said son, situated in the Welch mountains, Earl township, adjoining lands of John Williamson andKurtz, and I also give and devise to my said son Samuel, and his heirs, that certain lot of about one acre of land, be it more or less, adjoining the said tract of nineteen acres and land of John Williamson, and also in possession of my said son.” By a draft returned of the divisions and devises in the will, of the mountain tract, the boundary of the last mountain lot, devised to Samuel, contains nine acres and sixty-five perches. The boundaries of the Williamson tract and the others mentioned in the will, are preserved, and there is no devise of any land within these'boundaries. This is what the will requires. He therefore gave the whole lot to Samuel, and the mistake in quantity cannot control the boundaries. We concur with the learned judge, that the quantity described in the will cannot control the boundaries. The lines of Williamson and Kurtz, as well as the nineteen acres which the small lot called for, were omitted in the devise' of the residue of his estate, under which the plaintiff 'claims.

It is impossible to .collect from the will that the plaintiff has any claim to the lot in question, or that the testator intended to die intestate of any part of his estate.

.Judgment affirmed.