
    Hugh M'Mullen & wife, vs. John Brown.
    
      Office copy of a deed to li. C. under whom plaintiffs claimed, executed in 1768, and soon after recorded, was properly admitted in evidence, upon proof that search had been made among the papers of R. C. and in the office where the deed was recorded; and that R. C.and those, claiming under him, had been in possession of the land conveyed ever since.
    
    
      Testator, by his ivill, gives land to his son “ and his heirs forever.” A tract of land to his daughter “ and her heirs forever.” "And the will goes on to give to the son and daughter, jointly, and their heirs, four slaves; 11 (ha said negroes not to be divided till the said W. M.” (the ■ son) “ arrives to the age of twenty-one years. If either of the said” (son or daughter) “shall decease before the age of twenty one or marriage, leaving no heir lawfully begotten, the moiety of the deceased shall, revert to the survivor; if both shall decease, leaving no heir as above mentioned, then the said property shall -revert to my father.” Held that the limitations related only to the slaves.
    
    
      A tract of land was granted to the father of testator’s former ivife, in 1794; which testator acquired by his marriage.. Testator afterwards purchased a tract of land, held by an older grant, which was said to cover part of the same land. lie devised to his daughter, T. “ two hundred and sixty-one aeres” “ being land given to him with his former wife.” More than 261 acres ivas included in the tract which testator acquired by his wife, independently of what was covered by the older grant. Held that T. took no part of the land which was within the older grant.
    This was an action of trespass, to' try titles to a tract of . land, claimed by the wife of thé plaintiff, as heiress to her two children, William M. M’Donald and Charlotte E. McDonald, devisee of William M‘Donald jun. deceased, The defendant claimed in right of his wife, formerly Tliirza McDonald, daughter of the same Wm. M‘Donald, jun. by a former wife, and de-visee under the same will.
    The plaintiff produced a grant to James Wahab, for two hundred-and fifty acres, dated March 1755. He next produced the office copy of a deed from the grantee to Robert Crawford, dated May 1768. An objection was made to the admission of the copy in evidence, until the existence and loss of the. original should be proved. The plaintiff proved that search had been made among the papers of Robert Crawford; and in the office where the deed appeared to have been recorded shortty after its execution*
    
      It was also stated that the plaintiff held a deed from Robert Crawford to Wm. M'Donald, under whom they claimed, by virtue of which he had gone-into possession, which possession had been continued by him, and those holding under him, up to. the present day. The court permitted the copy to.be read,
    The plaintiffs then gave in evidence the deed from Robert Crawford to Wm. McDonald, jun. and lastly, the will of Wm. McDonald, jun. by which he had devised the laud in question to Charlotte E. McDonald. It was admitted that Wm. M. M£Doh-ald and Charlotte E. M‘Donald, were both dead, and that plaintiff’s wife was their heiress, at law. But it was contended that the land was Ihnited over, upon the death of the devisees, to Middleton M’-'Donald, sen. and therefore plaintiff’s wife could not inherit. Her right depended, therefore, upon the construction of that will. The clauses of the will in question, were in the following words, ££ I give and bequeath to my son, William M. M-Donald, four several tracts of land (describing them) to him and his heirs forever. Item, I give and bequeath to my daughter, Charlotte E. M‘Donald, all the remainder of my lands, of which I gave my daughter Thirza M£ Don aid two hundred and sixty-one acres, it being the lower part of said lands, to her and her heirs forever. Item, I give to my two last mentioned children, William M‘DonaId and Charlotte E. M'Donald, .the following four negroes, Tuff, Dinah, Fan and Sam, son of Fan,. to them and their heirs forever. The said negroes not to be divided, till the said William M. M'Donald, arrives to the age of twenty-one years. If either of the said Wm. M. MeDonald and Charlotte E. McDonald, decease before the age of twenty-one years or marriage, leaving no heir lawfully begotten, the moiety of the deceased shall revert to the survivor. If both shall decease,-leaving no heir, as above mentioned, then the said property shall revert to my father, MiddLton M‘Donald, sen’r. and his heirs forever.” The legatees both died before the age of 21 or marriage. The presiding judge held that the limitation extended only to the negroes, mentioned in the Will and not to the land.
    Defendant’s wife, claimed under a clause of the same Will, which was in the following words: “I give to my daughter Thirza M,Donald, two hundred and sixty-one acres of lanclj to be taken Off of the upper end of the plantation or tract of land, where I formerly lived, being land given to me. in marriage, with ray former wife, &c.” A- part of the land so devised, was contained in a grant to Wm. M!Donald, sen’r. the father of testator’s wife, dated in the year 1794, The defendant admitted that he was in possession of a part of the land claimed by die plaintiff; but he contended that it was covered by the grant of 1794, to William Sí‘Donald, sen’r. and therefore part of the. land which the testator acquired by his wife; and that as the testator had given to defendant’s wife, all the land which he had acquired by her mother, and left to 'Charlotte, under whom plaintiffs claimed, the remainder of his lands only, the defendant was entitled to hold'to the extent of his grant, although the plaintiff’held under an older grant. The presiding judge, instructed the jury that it was not material to enquire whether any part of the junior grant, under which defendants claimed, was located within plaintiffs lines or not; for in any event, the plaintiffs title under the elder grant must prevail.
    The jury found a verdict ibr the plaintiff.
    This was a motion for a non suit, on the ground that the copy deed from Wohab to Robert Crawford, ought not to have been admitted in evidence.
    And for a new trial, on .the grounds;
    1st. Because the court charged the jury, that the clause of limitation in the will, did not extend to the land.
    2d. Because the court charged the jury that it was not material where the defendants land should be located, as the elder title must prevail.
   The opinion of the Court was delivered by

Mr. Justice Mott.

That the copy of a deed ought not to be read in evidence, until the existence and loss of the original have been established, has not been left to be settled at this late day. But I do not know that it has yef been determined, and perhaps it cannot be by any definite rules, what shall in all cases be sufficient evidence of those facts to let in the secondary evidence. They may be proved by positive testimony, or inferred from circumstances. In the present case, more than half a century had passed away since the deed had been executed and recorded: All the parties and witnesses were dead. The testator and those claiming under him had been in possession about twenty-five years. The fact of the deed having been recorded immediately after.its execution, repelled every idea of fraud. Under suck circumstances, the cause ought to have gone to the jury, who might, and I think ought, to have presumed a conveyance, even though no copy had been produced.

The motion for a non suit caimot prevail.

The first ground for a new trial depends upon the construction of the will of Wm McDonald, jr.

The testator makes a specific devise of land to his son, Wm. M. M'Donald, in fee-simple, without any condition or limitation. He dien makes a specific devise of other lands to his daughter, C. E. M'Donald. He then gives them certain negroes, jointly, with cross remainders ovar to the survivor.

His words .are, “if either of the said Wm. M. McDonald and Charlotte E. M‘Donald,'should decease, before the age of twenty-one years, Sic. tlie moiety of the deceased, shall revert to the survivor.” Now, what is meant here by the moiety.'' why most unquestionably, a moiety of the property which was given to them jointly; which was the negroes only. They did not hold the land in moities, but each held by a specific devise. If he meant the land, then he devised a moiety belonging to each, and left the other moiety undisposed of in the limitation clause, which would be inconsistent with all the other provisions of the will, He then goes onto say, “if both shall decease, &c. then the said property shall revert to my father, Sic.” The question may then be asked, what said property shall revert? The answer is very plain: The same property which was before limited to the survivor, in case they should both die before the. age of twenty-one or marriage, and no other.-

The second ground for a -new trial, does not appear to me to present a greater difficulty than the first.

The testator devises “to his daughter, Thirza McDonald, two hundred and sixty-one acres of land, to be taken off of the upper end of his plantation, being land given to him with his former wife,”

Now the devisee is either entitled to two hundred and slxty-one acres, without regard to the quantity .received by him with his former wife, or she is entitled to all that lie did receive by his former wife, be the same more or less. If the former be the correct construction, she has received, without interfering with'the claim of the plaintiff, upwards of one him--dred acres more than is devised to her.- If the latter, then we must enquire how much he did receive with his wife. It will be observed, that when the testator received this land by his wife, the land claimed by the plaintiffs belonged to Robert Crawford: • He therefore received by his wife, that part only, which was within the Wahab grant.

For as the grant to Win. McDonald, was of a much more recent date, than that to Wahab, it was void as to all that part Which fell within it; if indeed any part did fall within it, which was very doubtful; and he could derive no title from his wife to land to which she had no title herself. It is true, he after-wards purchased from Crawford, still it ivas not acquired by-his wife-, and therefore not embraced in the devise to her daughter.-

The motion therefore must be refused.

Mott, Huger; Johnson, Richardson and Gantt, Justices, concurred;  