The Court
said, if the defendant had claimed to hold as tenant in common with the plaintiff, and defended only for a moiety, he should have restricted his defence expressly to a moiety, and not entered into the consent rule to confess ouster generally. Having confessed the ouster, as well as the lease and entry, if plaintiffs recover any
part of the premises they must recover costs. (3
Harr. Rep.
342;
2 Steph. N. P.
447.)
Judge Harrington charged the jury:
Harrington, Justice.
—The case is presented on a written statement of facts agreed to. This statement leaves it uncertain to what extent defence ,is taken; the defendants being now willing to concede one-half the land to plaintiffs. This is a question which only affects costs, but as the case agreed upon does not make the concession, we can settle it only by the pleadings, in which the defendants admit ouster of the plaintiff generally of all the premises claimed in the declaration; and the recovery of any part will subject them to the costs of suit.
The verdict must, therefore, be for the plaintiffs for one-half, at least, of the lands in question, and costs. The real controversy is about the other half.
It is admitted that the land in question was at one time held by Thomas R. and Miers Burton as tenants in common; and that Thomas R., being so seized of an undivided moiety made his will and devised the interest which he then had in the premises to the defendant, Peter R. Burton.
The will is as follows:—“ I give and bequeath to my nephew, Peter Robinson Burton, all of my moiety or half part of the tract of land that I now live on, situate in Angola in Indian River hundred in Sussex county, together with all of my moiety or half part of the mills and mill-lots attached to the same, it being the land that I hold in partnership with the heirs of Miers Burton, deceased, to him and his heirs and assigns forever: Provided always, that the said Peter R. Burton, shall not sell or otherwise dispose of the said lands to any other person than one of his own name and relation.”
After the making this will, proceedings were had in the Court of Chancery between Thos. R., and the heirs of Miers B., for partition of these premises which they so held in common, and the assignment to each of his part in severalty. Commissioners were appointed to divide the property, but finding that it would not divide by metes and bounds without prejudice and injury, they determined to divide it by valuation, which is another mode of partition authorized by the law. Thos. R., accepted at the valuation; bound himself by a recognizance to pay to Miers Burton’s heirs their half of the valuation, and took an assignment of the premises; by which the tenancy in common was destroyed; and he became seized of the whole in fee. He afterwards died without any alteration or republication of his
will, and without any revocation of it, unless this change in his estate, produced by the partition and purchase of the other moiety of the property, is in law an implied revocation, and does itself operate to defeat the devise.
This is a purely technical principle of law. It depends not upon the intention of the testator as collected from the will, but arises in the first place out of a high regard which the law always pays to the rights of an heir at law, the impolicy of allowing him to be disinherited unless by express words, and the doubt which the change in the estate devised raises in reference to what was the will of the deceased in respect to that estate in its new form and extent. Thus, if any one of you should by will, devise
all your land
to another person than your heir at law, and should purchase another farm the day after you made your will, and die without any republication of it, that farm would not go to the devisee, but to the heir at law. So, (to-take a stronger case,) if you should make a will devising a particular iarm to one of your children, and afterwards sell that farm, and then buy it back again, and die seized of it as fully as you had it when you made your will, it would not pass under the will, but go to the heir at law. And this principle has been extended in favor of the heir at law to much stronger cases than that; until it has even brought upon the law the reflection of injustice and unreasonableness. Still the principle is an established one which we must regard as one of the landmarks of property, at least to such an extent as we are bound by the decisions of those who have gone before us, and established good precedents in the law for our guidance; but in respect of a principle which has already been urged to an almost unreasonable extent, we shall be careful not to extend it any further,mar apply it to any case not falling directly within the spirit of adjudged cases.
The principle is, that any alteration of the estate or interest of the testator in the lands devised, by the act óf the testator,'is an implied revocation of the will; and the law requires that the same interest which the testator had in the land at the making his will should continue in him until his death; otherwise it is impossible to say with absolute certainty, what was the will of the testator in reference to this new interest; and this doubt defeats the will>the law always leaning to the heir.
The alteration in the circumstances, and seizin of the estate, which in this case is relied on as an implied revocation of the devise to Peter R. Burton, is, that after the will Thomas Robinson changed his
tenancy in common in these lands, which was the kind and quality of estate he possessed at the date of the will; put an end to that estate; and accepted another, different in quality and extent of interest, by the proceedings had for partition in the Court of Chancery. Whether such proceedings had the effect to produce a revocation of this will is the question now for consideration, and will depend upon a critical examination of the force and purposes of the chancery proceedings.
The change in the estate which is necessary to produce a revocation of the will has been held, and we consider with good reason, not to extend to a mere change in the manner of holding the estate; and the mere termination of a tenancy in common, and a holding of the same portion of the estate in severalty, will not work a revocation. The case of partition seems also to be an excepted case, even where to effect the partition a conveyance of the land be necessary. Such a conveyance by a coparcener or tenant in common, after he had made his will, has been held not to occasion a revocation of the will. The reason of this seems to be, that the object of the conveyance is really not to pass title, but to effect a severance of the manner of holding; and the estate to which the will applies being liable to this change without enlargement or restriction; the will is reasonably to be regarded and held as applying to it in its severed form of holding, as well as when it was held in common.
Partition by proceedings in chancery effects the same object without a conveyance of title.
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The Court
said, if the defendant had claimed to hold as tenant in common with the plaintiff, and defended only for a moiety, he should have restricted his defence expressly to a moiety, and not entered into the consent rule to confess ouster generally. Having confessed the ouster, as well as the lease and entry, if plaintiffs recover any
part of the premises they must recover costs. (3
Harr. Rep.
342;
2 Steph. N. P.
447.)
Judge Harrington charged the jury:
Harrington, Justice.
—The case is presented on a written statement of facts agreed to. This statement leaves it uncertain to what extent defence ,is taken; the defendants being now willing to concede one-half the land to plaintiffs. This is a question which only affects costs, but as the case agreed upon does not make the concession, we can settle it only by the pleadings, in which the defendants admit ouster of the plaintiff generally of all the premises claimed in the declaration; and the recovery of any part will subject them to the costs of suit.
The verdict must, therefore, be for the plaintiffs for one-half, at least, of the lands in question, and costs. The real controversy is about the other half.
It is admitted that the land in question was at one time held by Thomas R. and Miers Burton as tenants in common; and that Thomas R., being so seized of an undivided moiety made his will and devised the interest which he then had in the premises to the defendant, Peter R. Burton.
The will is as follows:—“ I give and bequeath to my nephew, Peter Robinson Burton, all of my moiety or half part of the tract of land that I now live on, situate in Angola in Indian River hundred in Sussex county, together with all of my moiety or half part of the mills and mill-lots attached to the same, it being the land that I hold in partnership with the heirs of Miers Burton, deceased, to him and his heirs and assigns forever: Provided always, that the said Peter R. Burton, shall not sell or otherwise dispose of the said lands to any other person than one of his own name and relation.”
After the making this will, proceedings were had in the Court of Chancery between Thos. R., and the heirs of Miers B., for partition of these premises which they so held in common, and the assignment to each of his part in severalty. Commissioners were appointed to divide the property, but finding that it would not divide by metes and bounds without prejudice and injury, they determined to divide it by valuation, which is another mode of partition authorized by the law. Thos. R., accepted at the valuation; bound himself by a recognizance to pay to Miers Burton’s heirs their half of the valuation, and took an assignment of the premises; by which the tenancy in common was destroyed; and he became seized of the whole in fee. He afterwards died without any alteration or republication of his
will, and without any revocation of it, unless this change in his estate, produced by the partition and purchase of the other moiety of the property, is in law an implied revocation, and does itself operate to defeat the devise.
This is a purely technical principle of law. It depends not upon the intention of the testator as collected from the will, but arises in the first place out of a high regard which the law always pays to the rights of an heir at law, the impolicy of allowing him to be disinherited unless by express words, and the doubt which the change in the estate devised raises in reference to what was the will of the deceased in respect to that estate in its new form and extent. Thus, if any one of you should by will, devise
all your land
to another person than your heir at law, and should purchase another farm the day after you made your will, and die without any republication of it, that farm would not go to the devisee, but to the heir at law. So, (to-take a stronger case,) if you should make a will devising a particular iarm to one of your children, and afterwards sell that farm, and then buy it back again, and die seized of it as fully as you had it when you made your will, it would not pass under the will, but go to the heir at law. And this principle has been extended in favor of the heir at law to much stronger cases than that; until it has even brought upon the law the reflection of injustice and unreasonableness. Still the principle is an established one which we must regard as one of the landmarks of property, at least to such an extent as we are bound by the decisions of those who have gone before us, and established good precedents in the law for our guidance; but in respect of a principle which has already been urged to an almost unreasonable extent, we shall be careful not to extend it any further,mar apply it to any case not falling directly within the spirit of adjudged cases.
The principle is, that any alteration of the estate or interest of the testator in the lands devised, by the act óf the testator,'is an implied revocation of the will; and the law requires that the same interest which the testator had in the land at the making his will should continue in him until his death; otherwise it is impossible to say with absolute certainty, what was the will of the testator in reference to this new interest; and this doubt defeats the will>the law always leaning to the heir.
The alteration in the circumstances, and seizin of the estate, which in this case is relied on as an implied revocation of the devise to Peter R. Burton, is, that after the will Thomas Robinson changed his
tenancy in common in these lands, which was the kind and quality of estate he possessed at the date of the will; put an end to that estate; and accepted another, different in quality and extent of interest, by the proceedings had for partition in the Court of Chancery. Whether such proceedings had the effect to produce a revocation of this will is the question now for consideration, and will depend upon a critical examination of the force and purposes of the chancery proceedings.
The change in the estate which is necessary to produce a revocation of the will has been held, and we consider with good reason, not to extend to a mere change in the manner of holding the estate; and the mere termination of a tenancy in common, and a holding of the same portion of the estate in severalty, will not work a revocation. The case of partition seems also to be an excepted case, even where to effect the partition a conveyance of the land be necessary. Such a conveyance by a coparcener or tenant in common, after he had made his will, has been held not to occasion a revocation of the will. The reason of this seems to be, that the object of the conveyance is really not to pass title, but to effect a severance of the manner of holding; and the estate to which the will applies being liable to this change without enlargement or restriction; the will is reasonably to be regarded and held as applying to it in its severed form of holding, as well as when it was held in common.
Partition by proceedings in chancery effects the same object without a conveyance of title. If partition be made, each tenant in common holds in severalty only the estate which he before held in common; neither more nor less; and there is no reason why this severance of possession should be held to revoke a will before made. And if partition cannot be made by metes and bounds, and the estate is appraised and accepted by one of the tenants in common, he acquires to be sure a title to his co-tenant’s part, which, of course, would not be embraced by a prior will; but as to his own share, there is no change of title that ought to impair his will, or work a revocation of it, upon any of the principles of revocation by implication of law.
In this view the plaintiffs are entitled to recover one moiety of the premises of which Thomas Robinson died seized, being that portion which at the making of his will belonged to Miers Burton; and as to the moiety which then belonged to him, and was devised to the defendant Peter R. Burton, the will is sufficient to carry the same to defendants, notwithstanding the subsequent acquisition of the other
part, and his holding the whole in severalty under the chancery proceedings for partition.
Cullen
and
Saulsbury,
for plaintiffs.
Houston
and
Layton,
for defendants.
Verdict accordingly.