Brant ex dem. Cuyler v. Livermore

10 Johns. 358

Opinion

Per Curiam.

The recovery was correct. Though Henry Pu!/Hr, ^le ancestor of the lessors of the plaintiff, may have made, a w;ii it ¿oes not follow that such will contained a devise of any . u part of his real estate, and particularly of the premises m question* The defendant was bound to show such a devise affirmatively,.if iie would bar the title of the heirs. The courts will never permit an heir to be disinherited by mere conjecture. Nor could the de» fendant be permitted to show that the premises lay out of lot No. 3. after he had taken a lease of them from the ancestor as being within that lot, and had occupied and paid rent for them as such. The case of Jackson v. Whitford (2 Caines' Rep. 215.) is in point, and the English rule is precisely the same. (2 Sch. & Lef. 72. 2 Campbell’s N. P. 12.) The court has also held that parol evidence of a disclaimer to a title to real property, otherwise valid, is inadmissible. (7 Johns. Rep. 186.)

Judgment for the plaintiff.