Jackson, on the demise of Zimmerman, against Zimmerman and others

Jackson, on the demise of Zimmerman, against Zimmerman and others. If a- testator deviso a specific quantity of land, out of a larger tract, and then describe the courses and distances to be run, if^ by stopping at one of the lines mentioned, the devise will fall short, it will be held that-the line was mentioned under the supposition that it would include the quantity devised, and the devisee will be entitled to have it run out that length. The erecting a fence, and showing it as a boundary, does not conclude the person so doing, if at the time such declarations are made that he is entitled to mere. This was a case submitted without argument. The lessor’s father gave him, by will, sixty acres of land, being part of a larger lot, and then described the tract devised, by certain courses and distances, one of the last of which was south six degrees, east six chains, or thereabouts. If this last line was to be only six chains, the lessor would not have sixty acres, but by extending it a few chains, be would have that quantity. Whether this line ought to be so extended, as with the other courses to include sixty acres, was the question. [MAJORITY — Livingston, J.] Livingston, J. delivered the opinion of the court. It is evidently the testator’s intention to give his eldest son, the lessor of the plaintiff, exactly sixty acres of the lot from which they are to be taken; and he, no doubt, supposed that the courses *and distances given would have included that quantity; but lie seems at tbe same time to have been aware that it might not be the case, and for that reason, probably, makes use of the expression, so many chains, or thereabouts. It is the same as if he had first described the courses and distances, and then said, that this line should be six chains, or so long as to include, with the other courses and distances, sixty acres. In this way, full effect is given to the devisor’s intentions, without violating any rules for the construction of grants. But it is said by the defendant that the lessor, if he ever had a title, has destroyed it by his own acts; which are, his showing a certain line as the division line between himself and the defendants, and erecting a fence thereon, and this fence he showed to three witnesses, but to two of them he declared “ that by the will, he ought to have more land.” This conduct of the lessor cannot be regarded as a relinquishment of his rights, which, so far from being waived, are constantly asserted by him: although he might for the present be satisfied with the line on which the fence was placed, he would not in this way be deprived of lands, to which he might show a title, beyond that line; or even if, under a misconception of his rights, he had considered this line as his boundary, it did'not prevent his extending it according to the intent of the testator, whenever he should think proper. We are of opinion that the plaintiff is entitled to judgment. Judgment for the plaintiff.