
    [Sunbury,
    July 3, 1829.]
    SECKEL against ENGLE and another.
    in error.
    Testator devises to one child a tract of land,, and afterwards devises to another child a larger tract, held by an older title, and which embraces within its boundaries the whole of the tract first devised: Evidence is inadmissible on the part of the first devisee to show that the title to the larger tract was de- ‘ fective. ' •
    Under such circumstances, the two devisees take the smaller tract together, ’ as tenants in common. , ■ '
    Error to the Court of Common Pleas of Union county, in an ejectment brought by Henry Seckel against John Engle and John Guier, to recover ninety-four acres and three quarters of land in Penn township.-
    
      George Cooper being seised of lands in Union county, devised to his daughter, Sophia Seckel; for life, remainder in fee to her children, “ a tract of land in Penn township, surveyed to George Cooper,” and afterwards devised to his daughter. Dorothy Guier, “ also a tract of land in Penn township, called Nicatenslin, granted to me by patent, recorded AA. vol. 14, p. 234.’*
    
    The first-mentioned tract contained ninety-four acres and three quarters, and was patented to the testator August 30th, 1786: the second tract contained three hundred and fourteen acres and one hundred and one perches, and had been patented to him March 21st, 1774: but it appeared that the whole of the smaller patent was included within the bounds of the. larger.
    The plaintiff offered to prove that the patent of 1774 was obtained by misrepresentation and imposition practised on the land office; that no survey had been made on the ground, and that there was no warrant authorizing such a survey. The evidence was rejected by the court, who- charged the jury that the defendant had shown an older and a better title; and . therefore the plaintiff could not recover. Verdict for the defendants.
    The argument on the writ of error was conducted by Lashells and Merrill for the plaintiff in error, who contended, that they had a right to show that the title to the larger tract was defective. If the testator had no title under the patent of 1774, there was no devise to Dorothy Guier. -But, at any rate, Sophia was entitled to half the land in dispute, as tenant in common' with Dorothy.
    
    
      Greenough and Hepburn, contra, argued,
    that as both parties claimed under George Cooper., the evidence which had been offered was inadmissible, and properly rejected by the court below. The .testator certainly intended to give to Dorothy the whole, and not a part of the large tract. The last devise is to her, and it is well settled that the last devise shall prevail. 2 Yeates, 525.
    
   The opinion of the court was delivered by

Gibson, C. J.

— Both parties claim under the testator, and it is therefore not competent to either to dispute the original title of the other; so that the evidence to show that the defendant’s warrant had not been actually surveyed on the ground, was properly overruled.

As regards the remaining point, the case is a singular one. The testator, erroneously supposing himself to.be the owner of two separate tracts of land, (the smaller under a junior title being located by mistake within the survey of the larger,) devises each respectively to one of his daughters; and the question is, whether the lesser tract, being given to both by successive devises, is to be held by them together, or whether .the devisee of the older title shall take the whole. The smaller, which is first in the order of disposition, is described as a tract of land in Penn township, surveyed \a George Cooperand the larger, as “a tract of land in Penn township, called Nicatenslin, granted by patent.” Hence, an ar- . .gument that the devisee of the larger tract, is to take in exclusion of her sister, not on .the old notion of the last devise in a will being the best, but because she is the devisee of the better title, the •devise of the smaller trapt being void, as it is said, by reason of nothing being left on which it can operate. But, it seems to me, there is a fallacy in supposing that only muniments of title were devised, and that the land , itself did not pass except as an accident of the better title.. Either title was sufficient'to carry the land. The testator could have recovered on the junior title against a stranger, who would not have been permitted to set up another title in the testator himself.' So a conveyance of the junior title would have passed her whole estate in the land. Even a devise of it would do the same against the heir; and why not pass a concurrent estate against another devisee who claims under the same instrument? It is difficult, even in imagination, to separate the evidence of ownership from the ownership itself; or to believe that the testator, having the estate in him, though by different titles, intended to give his.child nothing but one of the badges of ownership, which might prove to be entirely destitute of value. There cannot be a doubt but that he intended to give the land. It has been said that, without assuming too much, we cannot affirm that he would have given it thus, had he been apprized of its being included in a tract which he designed for another. . "With equal plausibility might it be said, that he would not have given the larger tract, as he has done, had he been apprized of its containing within it a smaller one which he designed for" another. The argument would equally prove both devises void for misapprehension, and thus produce ■consequences probably further' distant from what he would have directed with full knowledge of the circumstances, than the apportionment of the loss between -the immediate devisees. He might possibly have made a proportionate deduction from all the objects of his munificence: certainly, he would not, as proposed, have thrown the whole loss upon one. But these are contingencies on which we cannot speculate. We ean apply no other remedy than the Tule which giv.es an undivided interest to each of- two successive devisees of the same estate, in the same will. It seems to me, then, there was error in refusing to direct the jury that the plaintiff was .entitled to'an undivided moiety of the land contained in the lesser survey.

Rogers and Smith, Justices, dissented.

Judgment reversed, and a venire.facias de novo awarded.  