Jackson ex dem. Harder v. Moyer — 13 Johns. 531

Majority

p. 531

Jackson, ex dem. Peter Harder and others, against Moyer.

Headnote

m. devised ■&% follows; 4- X give and hequeath to roy am,joimBmrs, gnr°ant. verai “persons, aBd several v It. ®*c* -0“® that a lot of about IB acres, with a dwelling-house thereon, not adjoining the farm* and which fiad been let out for many years* as a separate aad. distinct lot? did not pass by the devise to J. ¿T».

THIS was an action of eiectment, tried at the Montgomery o 7 O ,7 circuit, August 29th, 1815, before Mr. Justice Yales. ’ ° 7

The premises in question were 16 or 20 acres of land, and a dwelling-house thereon, in Minden. The lessors of the plaintiff are six of the heirs at law of John Henry Moyer, deceased,

p. 532

and the defendant, John Henry Moyer, is the other .heir. John Henri/ Moyer died, seised of,the premises, in 1:810,, having previously made his will, dated, the 28th of August, 1810, by .which he devisdd as follows: “I give and bequeath unto my son, John Henry, iny farm, on which I now live, and being in-the town oiMinden, Sic.., containing 209 acres of land, be the: same more or less, adjoining lands of Henry Moyer, Johunnis Miller, and others, granted to me by several persons, and seve» ral lots, together with all the buildings and improvements thereon, to have and to hold the same to him, to his heirs and assigns: forever.” ;. ,• ., ; ,

After the death of the. testator, the'defendant letf he premises jn question, on shares. . The premises are separated from the farm by two lots; belonging to other persons, except in one part,: where it is separated by a small lot belonging to' Jacob Kelllar ,; and at this place, being the nearest to the -farm, the distance: from it Js half a mile, • The, testator did not work the premises, as his homestead. The dwelling-house was built by the defendánt, who- had the control of the old farm, and the .premises, for Several years previous to, his fathers death, . :! ¡ ■ >

Henry Kellar, a witness,, testified, that the testator had mot used the premises in question, as part .of his farm, but’that they had been let out 'for about forty years, and did not, in any part, adjoin the farm,

A verdict was taken for the plaintiff, subject to the opinión of the Court, on a case containing the facts above stated.

Ford, for the plaintiff,

contended, that the premises in question formed no part of the testator’s farm, but were a separate and distinct part of his estate, and he relied on the case, of Jackson, ex dem. Van Vechten, v. Sill,^[1] as in point to show that they did not pass by the devise to the defendant.

Campbell, contra,

insisted, thaths the testator had described his jdzrtra as consisting, of several and distinct parcels, the words ©f the devise were large. enough |o include the premises in question ; and'that the evidence showed that' they were under themontrol and direction of the defendant; in’the lifetime of.his father; in the same manner as the homestead, .and wére, there*, fore, to be deemed parcel of the farm,

The lessors of the plaintiff are six of the heirs at law of John, Henry Moyer, deceased, and the defendant is the only remaining heir. It is admitted that John Henry Moyer died seised of the premises in question. The lessors claim, as his heirs at law, six sevenths of the premises in question, and the defendant claims the whole, under the will of John Henry Moyer; and the only question is, whether the devise to the defendant extends to the premises. The words of the devise are, “ I give and bequeath unto my son, John Henry, my farm whereon I now live, &c. The premises, as appears by the testimony, are about 15 or 20 acres of land, with a dwelling-house thereon separate, and apart from the farm of the testator which he occupied, and not used by him as a part of the farm, but had, for 40 years, been let out as a separate and distinct lot. Under these circumstances, the premises could, in no sense, be considered a part of the farm whereon the testator lived, and, of course, not embraced by the devise. This is, a case very analogous to that of Jacksons. Sill, ( 11 Johns. Rep. 201 .,) and the principles then settled must govern the present decision. The plaintiff must have judgment for six sevenths of the premises.

Judgment accordingly.