Where devises of land are vague and indefinite, it is competent for the Court, by the intervention of commissioners, to render that certain which was before uncertain, and thus effectuate the intention of the testator. And there being no suggestion of fraud or misconduct on the part of such commissioners, and no evidence offered to sustain the exceptions to their report, the report should be confirmed.
Where a testator devised to A and B, two of his sons, each a portion of his land, and in another clause directed the residue to be sold, and the proceeds to be divided between others of his children: Held, that A and B may be regarded as tenants in common with those claiming the residue; and that the Court may call to its aid commissioners to make partition of the lands of the testator.
( Howe v. Davis, 10 Ired. 431; Bradshaw v. Ellis, 2 Dev. Bat. Eq. 20, cited and approved.)
SETTLE, J.
We have had some difficulty in overcoming the objection, that the devises of land to Thomas and Franklin Harvey are so vague and uncertain as to be incapable of location. No metes and bounds, or other description of the land is given, save only that Thomas' tract is to include the house where the testator resided, and Franklin's is to include the house where he (Franklin) resided at the death of the testator.
Upon consideration, however, we have concluded that it was competent for the Court, by the intervention of commissioners, to render that certain which was before uncertain, and thus effectuate the intention of the testator.
We think that those who claim under the 2d and 3rd items of the will, may be regarded as tenants in common with those who claim under the 4th item, and that the Court may call to its aid commissioners to make partition of the lands of the testator.
Assuming, then, that the Court has power to decree partition, have any grounds been shown why the report of the commissioners should not be confirmed? The only objection we hear to the confirmation of the report, is that the commissioners have allotted to the share of Franklin Harvey 250 acres out of the 705 acre tract. We have the fact established that "the testator regarded his two tracts as one plantation."
The 68 acre tract lay nearer to that portion of the land upon which Franklin Harvey resided, than it did to the other lands, and of course the commissioners, who viewed the premises, took into consideration all the circumstances, woodland, cleared land, rich land, poor land — in fact everything that went to make up its value, and their report should be confirmed unless something improper appears upon its face or is shown by extrinsic proof.
There is nothing wrong appearing upon the face of the report, for this Court has repeatedly held that in a will, two tracts of land, as much as half a mile apart, cultivated by the testator as one farm, will pass under the description of "my plantation." Howe, v. Davis, 20 Ired., 431; Bradshaw v. Ellis, 2 Dev. and Bat. Eq. 20.
There is no suggestion of fraud or misconduct on the part of the commissioners, and the case for this Court states that no evidence was offered to sustain the exception of the defendant.
The judgment of the Superior Court is affirmed. Let this be certified,c.
PER CURIAM. Judgment affirmed.