
    Clarkson Underhill et al., Respondents, v. Abraham Vandervoort, impleaded, etc., Appellant.
    Where the intent of a testator is to be ascertained from the language of his will alone, or from the language and surrounding circumstances about which there is no dispute, a question of law for the determination of the court alone is presented.
    The will of V. contained the following devise: “I give and- devise to my son Abraham the farm on which I now live and cultivate * * * and the meadow and wood-land attached to it, together with the messuages .thereon.”
    
      (Argued March 23, 1874;
    decided March 31, 1874.)
    The testator owned two farms: one the homestead, the other occupied by his sons. A piece of wood-land was embraced within the boundaries of the homestead farm. The testator owned another piece of wood-land a short distance from the farm, connected therewith by a private way over intervening land, which passage had been procured for that express purpose, and it had always been used with the farm for the purpose of supplying it with fuel and fencing. About one and three-fourths acres on this lot was cleared and a small house erected thereon. In an action of ejectment brought by one of the heirs of V. to recover her proportion of the separate piece of wood-land, held, that it was included in the devise, and passed to defendant A. V., the devisee.
    Appeal from judgment of the General Term of the City Court of Brooklyn, affirming a judgment in favor of plaintiffs entered upon a verdict.
    This was an action of ejectment brought to recover possession of an undivided one-twentieth part of a piece containing about fifteen acres of land, of which one Francis Yandervoort died seized and possessed in 1831. He left four children and five grandchildren, of whom plaintiff Cornelia Underhill was one. The defendant Abraham was a son of said Francis Yandervoort, and claimed title to the land in suit under a devise contained in the last will and testament of said Francis, viz.:
    
      “ I give and devise to my son Abraham the farm on which I now live and cultivate, in the town of Bushwick, county of Kings and State of Hew York, and the meadow and woodland attached to it, together with the messuages thereon.” The land in suit was a piece of wood-land separated several hundred feet from the farm actually occupied by the testator, and access to it was had by a right of way over the intervening land, which right of way was procured for the purpose of such communication. The testator had been in the habit of getting his wood and the fencing for the use of the homestead farm from this wood lot. The testator owned another farm which was occupied by two of his sons. Further facts appear in the opinion.
    The court directed a verdict for the plaintiffs, to which defendant’s counsel excepted. Said counsel requested the court to submit to the jury whether, by the phraseology of the devise, the testator did mean to include the land in question. The court refused so to do, and defendant’s counsel excepted.
    
      Amasa J. Parker for the appellant.
    In construing the will it was proper to look at the surrounding circumstances. (Blossom v. Griffin, 3 Kern., 569 ; Abb. Dig., Evidence, § 773, and cases cited; 1 Jar. on Wills, 352, n. 1 [Perkins’ 4th Am. ed.], 367; Ongley v. Chambers, id., 369, 370, 371.) In the devise to Abraham of the wood-land attached to his farm the testator meant the land in suit. (Bouv; L. D., tit. “ Farm,” and authorities cited; 1 Jarman on Wills, 620-622, and notes; Aldrich v. Gaskiel, 10 Cush., 155; Allen v. Richards, 5 Pick., 512.) Whether this land was devised to Abraham was a question of fact for the jury. (Ernst v. H. R. R. R. Co., 35 N. Y., 9, 38-40.) To maintain the action plaintiffs are bound to prove an ouster by the defendant. (2 R. S.,. 360, 607.)
    
      D. P. Barnard for the respondents.
    Extrinsic evidence to determine the testator’s meaning was inadmissible. (1 Bur. L. D., 604, tit. “Farm;” id., 155, tit. “Attach;” Jackson v. Sill, 11 J. R., 201; Jackson v. Moyer, 13 id., 531.) Defendant being a tenant in common with plaintiffs, his possession of the land is not to be deemed adverse without proof of actual ouster. (Parker v. Foote, 19 Wend., 309; Butler v. Phelps, 17 id., 642; Jackson v. Tibbetts, 9 Cow., 241; Jackson v. Frost, 5 id., 346 ; Willard on R. E., 356, 357.)
   Rapallo, J.

In view of the situation of the testator’s property and the manner in which it had been occupied and used, up to the time of his decease, we think it quite clear that the meadow and wood-land referred to in the devise to his son Abraham, are the wood lot now in dispute and the piece of salt meadow which had been used with the farm, and not the meadow and wood-land which were embraced within the farm boundaries. Those would necessarily pass with the devise of the farm, without special mention. The wood-land on the homestead farm was surrounded on three sides by other land of the testator, and wholly within the lines of the homestead farm. The testator could not have deemed it important to mention that wood-land when he was devising the entire farm; and if he had undertaken to mention it, it can hardly be conceived that he would have expressed him: self so inaccurately as to describe it as “attached” to the farm, in the midst of which it lay and within whose boundaries it was inclosed.

The argument drawn from the use of the word “ cultivate,” strikes us as unsound. This word was evidently used by the. testator to designate the homestead farm, “ the farm on which I now live and cultivate,” and to distinguish it from the Cripplebush farm, which was occupied by his sons Francis and Volkert, and the forty-four acres of land at Cross Eoads, which were not occupied. It would be a very forced construction to say that the testator understood the devise of “ the farm upon which I now live and cultivate,” as carrying only the land actually under cultivation within the farm inclosure, and that, consequently, he deemed it necessary to add, specifically, the wood-land and meadow within the same inclosure.

We are satisfied that the language of the will bears no such construction, and that the wood-land referred to is not the wood-land contained within the bounds of the homestead farm, but the wood lot in question, which was separately fenced. There is no other land to which the language of the devise is applicable; and we think this lot is sufficiently designated. It lay in close proximity to the farm, being within about 200 yards therefrom, and had always been used with it for the purpose of supplying the homestead farm with fuel and fencing, and was connected with it by a private way over the intervening land of Suydam, which privilege had been obtained for the express purpose of affording a more convenlent communication between it and the farm than formerly existed.

It is not easy to select a single word which will express the precise nature of the relation existing between these two parcels of land. The wood lot was not strictly appurtenant to the farm, because one piece of land cannot be an appurtenance to another. It was not adjoining or adjacent, because the land of Suydam intervened. It was, however, connected in its use, and communicated with the farm. The testator selected the word “ attached ” as the most appropriate. Under the circumstances and in the connection in which it is used this term does not necessarily require that the wood lot be physically attached to the farm, but its sense is fulfilled by showing that the lot was a sort of accompaniment to the farm, and used in connection with it for the convenience of its occupants, and so associated in this use that it ought not to be separated, in ownership or occupation, from the farm, but should pass with it when it changed hands.

It is worthy of observation that, unless applied to this wood-land, the words “ attached to it ” are wholly superfluous and without meaning or operation. If the testator meant only the meadow and wood-land on the farm, why should he distinguish them from the “ messuages thereon ? ” He would have said the farm, etc., and the meadow, wood-land and messuages thereon.

The fact is referred to that about an acre and three-quarters of this wood-land was cleared, and a house erected thereon. This circumstance is not inconsistent with the interpretation which we think should be given to the devise. The devise is so framed as to include messuages on the wood lot as well as oh the farm. It devises the farm, etc., and the meadow and wood-land attached to it, together with the messuages thereon.” This language is quite suggestive, and is capable of the interpretation that it was framed with express reference to the existence of a messuage on the wood lot. Otherwise the natural frame of the sentence would have been: the farm, etc., “ together with the messuages thereon, and the wood-land and meadow attached to it.”

I find no conflict in respect to any material fact in the case which required that it be submitted to the jury. The extrinsic facts being uncontroverted, it is the duty of the court to interpret the language of the will as read in the light of those facts. The construction of the language is not for the jury but for the court, and where the intent of the testator is to be ascertained from his language alone, or from his language and surrounding circumstances about which there is no dispute, a question of law and not of fact is presented.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur, except Church, Ch. J., who concurs in result on the ground that it should have been submitted to the jury to find whether the wood-land and meadows were attached to the farm.  