
    
      Williams v. Lane.
    
    This petition was filed by Williams and Patsey his wife, and Jane Lane, against Alfred Lane, in order to obtain the opinion of the Court, as to the manner and proportion, in which a division should be made between the parties, of a tract of land devised to them, by the will of T. Hunter, dec.
    The case was spoken to at a former term by
    
      Gaston for the petitioners, and Browne for the defendant,
    when the Court not having formed an unanimous opinion, it was continued under advisement till this term.
   The opinion of the Court was now delivered by

Cameron, J.

In this case, the testator, Theophilus Hunter, devised as follows: “I give and bequeath to my grandchildren, by my daughter Jane, as follows, to-wit:—to my grandson Alfred Land, 350 acres of land, being the upper part of a tract of land of 700 acres purchased by me of Jas. Lane, lying on Crabtree Creek—Also, to my granddaughters Patsey Lane, and Jane Lane, I give and bequeath the lower part of the same tract of land, to be equally divided between them.”

The tract contains, by actual survey, 1100 acres of land, and the question is, whether the defendant is entitled to 350 acres, being the upper part of the tract, or to one half of the tract?

The meaning of the testator is always to prevail, when it can be fairly inferred from the words he has used, and when it does not contravene any known or established rule of law. It does not follow, because the testator describes the tract in question, as a tract of 700 acres, and devises to the defendant 350 acres, being the upper part of the same, that he intended to give him one half of the tract. Suppose the tract only contained 500 acres, could the Court say that the testator only intended that the defendant should have 250 acres, when he has expressly and specifically devised to him 350 acres?—We apprehend not.

It was decided in the case of Powel v. Liles, in this Court, that describing a tract of land, as containing a specific number of acres, did not vary the case from a description of a tract by so many acres, more or less. If the testator had described the tract to be 700 acres, more or less, no question could have been raised. In our opinion, the words he has used mean nothing more than if he said 700 acres, more or less. Wherefore, a majority of the Court are of opinion, that the defendant, Alfred Lane, is entitled under the will of the said Theophilus Hunter, to 350 acres of land to be taken from the upper part of the aforesaid tract, and that the petitioners are entitled to have the residue of said land divided between them equally.

Taylor, C. J.

I have formed a different opinion from that which has been pronounced, and will briefly state the reasons upon which it is founded. The intention of the testator seems to me apparent, upon the face of the will, to give his grandson Alfred, one half the tract of land, and the other half to be equally divided between his two granddaughters—and in this proportion he meant they should take, whatever number of acres the tract should be found to contain.

The testator believed that there were 700 acres in the tract, for in that way he described it—and under this belief he gives to Alfred that number of acres which amounts to half, describing it as the upper part. This induces me to think that he used the word “part” as synonimous to “ half.” But why is he silent as to the number of acres he devises to his granddaughters? For the obvious reason, that it was one half the tract, and must be the same in quantity that he had just given to Alfred. It had been twice told, and required not a repetition. He assigns one clause to the devise to Alfred; and a new, and separate one, to the devise to his two granddaughters—to the end; that the words “ equally to be divided” might have a distinct and unequivocal reference to them, and to preclude any refinement of construction, which might also extend to Alfred and his half.

This would have been the undoubted construction of the will, if the tract of land had in reality contained the exact quantity of acres, which the testator believed it did. The intention would then have been considered clear, and the phraseology perspicuous. I cannot understand why this construction should be abandoned, because it happens in event that the tract contains 1100 acres. There is no revolting disproportion in the shares of the respective grandchildren; no ratio different from that which the testator himself designed. It is certain that each devisee would receive more than the testator expected, but they would receive it in the exact proportion that he designed and limited; inasmuch as 350 bears the same proportion to 175, that 550 does to 275. Yet how different is the result according to the judgment! Alfred’s share instead of being equal to the shares of both, his sisters added together, will be less than the share of either. If this question had been put to the testator,—“ suppose there should be much more land in this tract than you think there is, do you intend in any event that your granddaughters shall, each, have more than your grandson?—I think he would have been very prompt in answering “ No; I gave 350 to Alfred because I believe the tract contains 700, and I wish him to have half at all events, and the other half to be divided between his sisters.”

As I take this to be the true construction, I cannot consent to yield it on account of a mistake in the testator as to quantity; a mere error in computation, which has been so often overlooked when the intention is plain.-1 Vesey 106. Milner v. Milner 2 Bro. C. C. 87.-Williams v. Williams. “ If (says Lord Bacon) I grant my meadows in Dale containing 10 acres; and they in truth contain 20, the whole 20 pass” according to the maxim veritas nominis tollit errorem demonstrationis.-Reg. 25. If half the meadows had been granted in the same way, the grantee must have taken 10 acres; and I cannot perceive a difference between those cases, and where a man grants to A five acres, being the upper part of his meadows containing ten acres; and in another clause grants the lower part of the same meadows to be divided between B and C.

Seawell, J. dissented from the opinion of the Court.  