#### Den ex dem Catharine Dodson, et. al. v. Simon W. Green.

Whore a devisor gave a tract of land to A, excepting two acres which he devised to B, and before a severance of the latter, A purchased them from B, and held the whole together during his life as one estate, and by his will devised it as “ the land whereon I now live,” the whole passes thereby, although further described as of the quantity it would have con tained, had there been an actual severance.

This was an action of Ejectment in which on the last circuit at Warren, before Settee Judge, a verdict was taken for the plaintiff, subject to the opinion of .the Court on the following case:

*489 Simon Williams the elder devised the land in dispute to bis wife for life, describing it “as the land and plantation whereon I now live, containing six hundred and forty acres,” By the two succeeding clauses of his will lie devised as follows : “I give and devise unto my son “William Williams the tract of land whereon I now live, “containing 640 acres, (except the mill and two acres “adjoining thereto, the two acres to be laid off in the “most suitable manner,) to him, his heirs &c. I give and “devise unto-my son Simon Williams one half the mill, ‘bind half the two acres of land, after the death of his “mother, to him, his-heirs, &c.” I give and devise to “my son Mison Williams, one half of the mill, and half “of the two acres adjoining thereto after the death of “his mother, to him, his heirs &c.” After the death of the testator, Simon, the younger, purchased of William, the land devised to him, and also of.Mison his undivided moiety of the mill, and the two acres of land directed to he laid off adjoining thereto ; and ho becoming thus entitled to all the land mentioned in the wall, the two acres adjoining the mill never were laid off. . Simon the younger lived upon the land devised by his father to his brother William, bought' a tract of land adjoining it, repaired the mill,and during his life cultivated land on the mill creek, both above and below the mill — that,and the two acres adjoining it being situated within the body of his cleared land. By his will he devised as follows : “I give “my nephew Simon W. Gr.een, (the defendant,) negroes “Davy &c. (mentioning a number,) -and also the land “whereon I now live, and my Hargrove tract, all containing seven hundred and eighty seven and one half “acres, also my household and kitchen furniture, also “my wagon, &c. belonging to the plantation whereon I “live, (one acre of land I except, to be laid off around “my fathers and mothers graves and others,) to him, and “his heirs forever.”

The will contained two other clauses giving specific legacies to two other nephews — and no residuary clause was added.

The land on which the last mentioned testator lived, *490and which is described in his will, deducting from it the hull and two acres, contained exactly seven hundred and . i.,/. eighty-seven acres and a halt. „

The lessors of tiie plaintiff1 were the heirs at law of Simon the younger, and contended that thetWo acres of land adjoining the mill had been severed from the tract of six hundred and forty acres, and did not pass to the. defendant, but descended to them.

The defendant insisted that the mill being situated on the tract of six hundred and forty acres, and the two acres never having been actually severed from it,in law passed under the devise to him, and His Honor being of this opinion, judgment of non-suit was entered, and the plaintiff appealed.

Bevereux Cor the plaintiff

Badger & W. II. Haywood tor the defendant.

Ruppix, Chief-Justice.

Upon hearing this case, it seems impossible to doubt either upon the words of the will, or the circumstances stated, that it was the intention of the testator to dispose of the mill, and the two, acres of land, with the residue of the tract of which it originally formed a part, to the defendant. It is not like the cases cited, where the devise of land by a particular name, which was known by that name, was confined to the distinct parcel, notwithstanding other more, general words. Nor is it like Helme v. Guy, (2. Murph. 341,), where the words are ‘‘the tract of land whereon I now live,” and the testator owned many tracts adjoining, which were known by different names, that on which he lived being called the “Radcliffe tract.” Thee several tracts were distinct parcels originally ; derived by the testator at different times, and by different titles, were never known by one and the same name, nor, as far as appeared, occupied together. They remained several and the devise could therefore only pass the particular one designated, although thus designated by the terms “the tract of land whereon- I live” instead of “the Radcliffo tract.”

JBut here the two acres formed a part of testators pa--*491ternal estate, and were never actually severed from if, ^y- a^°Lment under tho devises in his fathers will- The whole,including the mill, was given in one devise to the mother for life, and was occupied by her as one estate. Before severance, tho testator, Simon the younger, extinguished all other titles to the mill, aud the other parts of the tract of land, and also occupied the whole as one tenement, when he made his will and died — tho mill being at a considerable distance from- any of tho outer boundaries of the tract, on which he was actually cultivating fields, situate on the stream on which the mill was erected, above and below it. The whole then was in fact one tract and parcel, and was so considered by the testator. It cannot indeed be supposed without express or plain words of exception, that the testator meant to leave out a small parcel of two acres in tho heart of a largo tract of land and within the portion of it then under cultivation, for the sake of its descending to numerous collateral relations, .who were as the caso states, his co-heirs. If there was any other devise which could embrace it, or even a residuary clause, the claim of the defendant might be more plausibly resisted.¡But the words are sufficient to parry the whole to him, and the other circumstances fortify that construction.— Especially as the testator has made one exception, namely, of the family grave yard, which he no doubt intended not to appropriate to any particular relative, but to preserve to its former,uscs, by letting it descend to all his heirs, among whom he might well think, so smali a (piantity as one acre, dedicated to such a purpose would never be divided. Tho number of acres specified cannot maií0 a difFeronec. Quantify may be matter of descrip,tion as in Den ex Demise Proctor v Pool, at last term, (ante p. 370,) or as distinguishing which of two parcels is meant, when there is no other more certain criterion. But in general it does not import to enter with the description, as identifying the parcel conveyed, more than it amounts to a covenant, that the parcel contains the quantity designated. It is by every body regarded, if not as surplusage, as too vague to be relied bn as a de~ *492finite or controling description. It turns out here, that the quantity mentioned in the will is since found upon admeasurement, to be that contained, in both tracts, deducting two acres. But it doe's not appear that the testator had surveyed the lands, or knew that to be the exact quantity,so as to render it not at all probable that he could use tliose terms for a different purpose, or in a different sense, from that in which they are commonly received.

*491Tho number of afires m a tractof less plainly so in-o?1(]escriptionl.tter

*492We think therefore that the judgment must be affirmed»

Per Curiam. — Judgment aretrmed.