Roberts v. Roberts. garded. This is especially apparent of the case there cited from Anderson, 25, case 55. But it will be seen, by the latter cases, that it matters very little what the operative words import when taken by themselves. In Habergram v. Vincent, before cited, Wilson, J. supposed a deed by words of feoffment to a relation and his heirs; and adds; "It is obvious, the mode in which it was intended to do that, was by that common law conveyance called a feoffment. But the party cannot take by feoffment: then the law says, here is an agreement by deed; the parties are relations, and that is a consideration for raising a use; therefore, it shall be construed a covenant to stand seized to the use of the person specified, in fee, and the estate passes, not by feoffment, as the ded says, but by virtue of the statute of uses; and, ut res magis valeat, &c., that instrument called a feoffment, shall operate as a covenant to stand seized, in order to support the intention." In Jackson, ex dem. Wood, v. Swart, 20 Johns. R. 85, the husband and wife joined in conveying the land of the former to their son, reserving to themselves the use for life; and the word reserve was turned into a covenant to stand seized for the life of the wife. The short of the argument is, that courts will change and subvert the meaning of the operative words, in order to reach the intention. "I bargain, sell, give, enfeoff, confirm, convey, or reserve," &c. shall be read, "I covenant," &c. Surely, it is but following out the same path of argument, to say that words importing of themselves an executory contract, as here, "I covenant and agree to give" the farm, &c. shall be read, not as words of executory covenant, but of present covenant to stand seized, if the intent be plainly so. Why can they not as well be made to read as words of present conveyance and passing an estate? The parties tell us they used them in that sense. Words of present demise are technically necessary in a lease; yet equivalent words, and, among others, a mere covenant or agreement executory is sufficient, if on the context it appear that the parties intended to pass in interest presently. Woodf. Land. and Ten. 6, Lond. ed. of 1804. Roberts v. Roberts. "That is to say, the agreement to the forewords here come The word give is The Bac. Abr. Leases, &c. (k). Savage, C. J. in Jackson, ex dem. Bulkley v. Delacroix, 2 Wendell, 438, et seq. A subsequent clause here is more direct: said Robert Roberts gives over by said Mary, after his decease," &c. almost literally within a series of cases. the aptest term of a feoffment. 2 Black. Comm. 310. This has been so often turned to another nature, in order to support the intent, that Wilson, J. puts it by way of illustrating the rule now prevalent, that the law will break through all form of words for such a laudable purpose. To apply his reasoning: Here we have a consideration which has been held to operate most powerfully in working a covenant to stand seized, even out of words which in themselves import the contrary. A consideration of prospective marriage is treated not merely as a good, but valuable consideration. Cains and wife's lessee v. Jones, before cited. It is quite obvious that neither party looked to any future act, in order to pass the estate; but their intent was to make it pass by the deed they executed the day before their marriage; and however we might have been embarrassed by words, on the authority of some of the old cases, I think we are entitled, on the more rational rule of modern times, to overlook them, and carry the plain intent of these parties into effect. In that view of the matter, the circuit judge was right; the nonsuit must stand, and a new trial be denied. New trial denied. RYERSS and others v. WHEELER. Where a testator gives all his back lands to certain devisees, parol evidence is admissible to designate the premises, as, by showing that certain lands owned by him, were called and known by that designation by him, his family and neighbors. Declarations of the testator at the time of the making of the will, explaining the meaning of the terms, or defining the property intended to be devised cannot be received in evidence; but if made before or after the execution of the will, proof of such declarations is admissible. The rule that to be valid, a will or other writing must be certain in itself, applies only to such particulars, as do not in their own nature refer to any thing dehors the instrument in question. Where a plaintiff in ejectment claims in the declaration the whole of certain premises, and shows title to only a moiety, and a nonsuit is granted, and on application a new trial is granted, an amendment of the declaration will be permitted, the costs to abide the event. THIS was an action of ejectment, tried at the Yates circuit, in December, 1838, before the Hon. DANIEL MOSELEY, one of the circuit judges. The plaintiffs claimed to recover 109 acres of land situate in the town of Milo, in the county of Yates, under a devise in the last will and testament of Gozen Ryerss, of Richmond, in this state, bearing date 21st October, 1800, in these words: " Item. I give and bequeath all my back lands, to my grand-children now living, and to those that may (be) born hereafter, share and share alike in severalty, each to receive his or her share, as they respectively become of age, and to their heirs and assigns forever." By previous devises in the same will, he had given sundry parcels of real estate situate in the county of Richmond to a son, daughter, and grand-child. The plaintiffs proved that the testator, Gozen Ryerss, was the owner of a tract of 2400 or 2600 acres of land in the vicinity of the court house in Yates county, that these lands were called by the testator his back lands, and were also so called and known by his family and neighbors on Staten Island. The witness who proved this fact, testified that his father-in-law, not the testator, who also resided on Staten Island, and himself, whilst he Ryerss v. Wheeler. resided there, owned lands in the western part of this state, and that they also called their lands back lands. The whole of this evidence in relation to the name by which these lands were known, and particularly as to the declarations of the testator designating the lands as back lands, was objected to by the defendant's counsel, but the objection was overruled. The plaintiffs were nine in number, and the declaration contained nine counts. The sixth count was in the names of Gozen Adrian Ryerss and Thomas Baxter, claiming the. whole of the premises in fee. There was evidence adduced to show title in all the plaintiffs named in the declaration as derived from the grand-children of the testator, but the plaintiffs' counsel finally abandoned all the counts except the sixth, and having succeeded in showing title in the plaintiffs named in that count, to a moiety of the premises claimed, rested. The defendant's counsel thereupon moved for a nonsuit on the grounds: 1. That the plaintiffs had failed to show any title to the premises in question, by reason of the uncertainty of the terms back lands, and 2. That the plaintiffs named in the sixth count, had shown title to only a moiety, whereas, in the count, they claimed the whole of the premises. The circuit judge granted a nonsuit, without stating the grounds upon which the order for the nonsuit was made. The plaintiffs ask for a new trial. H. Welles, for the plaintiffs. B. Davis Noxon, for the defendant. By the Court, COWEN, J. I can hardly think the judge, in granting the motion for a nonsuit, laid any considerable stress upon the supposed variance between the proof and the sixth count. Whether the plaintiffs had made title in severalty, or in common, the judge had a right to disregard the variance in his discretion, and probably would have done so, though I admit this lay in his discretion. Holmes v. Seely, 17 Wendell, 75, 79, 80. Weed v. The Saratoga and Schenectady R. R. Co., 19 Wendell, 541, 2. Under the peculiar circumstances of this case, the plaintiffs may, Ryerss v. Wheeler. If they shall be so advised, amend by adding counts, or modifying those already in the declaration, in such a manner as to avoid any variance from the proof at the trial. We are entirely satisfied that a new trial should be granted, on the first ground taken for a nonsuit. The term back lands was, it is true, insufficient, of itself, to designate any particular class of lands owned by the testator. It was uncertain; and might refer to different objects, or to none upon which any distinctive character could be fastened by extrinsic proof. But id certum est, quod certum reddi potest. You must, in the most accurate description, go out of the instrument in order to apply it to the subject matter of the devise or grant; Wigram on Extr. Ev. 38, 41. Phil. Ev. 8th Lond. ed. 731. 1 id. 7th ed. with notes by Cowen & Hill, note 957, p. 1399. Sutherland, J. in Jackson, ex dem. Lowell v. Parkhurst, 4 Wendell, 374; and as far as we are able to collect from the evidence, that was effectually done in this case; at least a jury might have so understood the testimony of Mersereau. The premises in question and other lands in the same vicinity were known and called by the testator, during his lifetime, and by his family and neighborhood, back lands. This is like a man's making a map of his lands on which he designates certain parcels by certain names; and then devises or conveys them accordingly. A nick name, or a name by reputation given by the testator, and current in his family and neighborhood, is sufficient to designate the devisee. Wigram on Extr. Ev. 38, 9, and the cases there cited; and why not the subject matter devised? The rule that to be valid, a will or other writing must be certain in itself, has no application except to such particulars as do not in their own nature, refer to any thing dehors the instrument in question. A devise to A. and B. and his heirs, might be irremediably uncertain in respect to what heirs are intended. But the parcels in a devise always lie out of it, and must be sought by evidence aliunde. The search may indeed be unavailing, but still there is the right of search, and questions are thus every day raised for the jury. |