
    COURT OF APPEALS, JUNE TERM, 1820.
    Fouke et al. vs. Kemp’s Lessee.
    A devise to the testator’s children embrace \ >>£KroiKldev?i 4™£?0“r™ítí£t íemkítáindude
    the introanwn;f mlTVie táte'^íerised^vitk the payment of debts, the effect to enlarge the esgte of the devisee?
    An ejectment may be maintain.* edfl>.r landby
    Appeal from Washington county court. Ejectment for ° J o four tracts of land, viz. Bachelor's Delight, Felty's tune, Felty's Addition, and Addition to Dearboughl. ' The defendants in the court below, (the now appellants,) took defence on warrant for the three first tracts only, and plots were returned. For the last tract, judgment was entered by default against the casual ejector.
    1. At the trial, the plaintiffbelow read in evidence the following patents viz. one for Bachelor's Delight, granted to 7-7XT7» i i/**»'- ° ° „ John Leltigrow, on the 11th of November 1752: another for ° FeltigraWs Fortune, granted to John Feltigrah on the 18th ■of June 1742: and one for Felte's Addition granted to Felte , 7 © Gravo on the 25th of May 1743. He also gave in evidence, that the patentee in the several patents named, was one and the same person, though called by different names, and that John Feltigraw was that patentee. That the patentee died in the year 1760, seised in fee simple of the above mentioned tracts of land, and leaving two daughters Barbara and Mary, his only children, and heirs at law, and "a widow, who survived him about two years. That Barbara married Ludowick Kemp, before the year 1767, by whom she had issue several children, and that she died in 1784, leaving Henry Kemp, the lessor of the plaintiff, her eldest son and heir at law. That Ludowick Kemp survived her, and died in the year 1813. That Mary, the other daughter of John Feltigraw, married John Wolgamot, by whom she had issue several children. That Wolgamot died in the year 1779, and his wife Mary survived him, and afterwards died in the year 1814, leaving a will legally executed; and which tire plaintiff' read in evidence, dated the 18th of July 1808, which contains, among other devises, the following: “I give, devise and bequeath, unto my son John Wolgamot, all my real and personal estate which I may die seised or possessed of, in Washington county, or elsewhere, to him the said John Wolgamot, his heirs and assigns for ever, he paying the following legacies hereafter mentioned to wit,” &c. The plaintiff further read in evidence a deed from John Wolgamot, the devisee in the said will mentioned, to Henry Kemp, the lessor of the plaintiff, dated the 20th of December 18 J 6, for all the land within the tracts of land called Felly’s Fortune, Felly’s Addition, and the part of Bachelor’s Delight, laying on the east side of the following division lines, to wit, &c. and proved, that all the land within the three tracts, which lies on the east side of the said six division lines, to which John Wolgamot has any right, &c. is the land conveyed by this deed. The deed recited! that Fdtignvw died seised of Felty’s Fortune; FeltyH Addition, and part of Bachelor’s Delight. That a resurvey was made of the said lands by Wolgamot and wife, and Kcmp axíá wife, and called The Amendment, See. The defendants then read in evidence the will of John Felligraio. It is stated to be tire will of Valentine Grave, dated the 29th of September,. 1760, and after the following introductory clause, viz. “and as touching such worldly affairs wherewith it hath pleased God to bless me in this life, I give, devise, and dispose of the same, in the. following manner and form, to wit,” ho then devised to his daughter Mary, 300 acres of land, and to his, daughter Barberry, 200 acres of land, to be taken out of his tract of land where his dwelling house stands, and up to the Upper Spring. He also gave to his said daughters £60, to be paid to each of them; and gave also to each of them a feather bed, Sic. and that after all was divided, and all his debts and funeral expenses were paid, those two daughters should have an equal share with all his surviving children, only giving to his wife Elizabeth^ the third part of all his estate both real and personal, during her life, and after her decease, to be equally divided amongst all his surviving children, &c. They also proved, that Valentine Grove, the devisor in said will, and John Fdtigraw, the patentee before mentioned, was the same person. They also read in evidence the following deposition, taken by consent, and read under an agreement that the same should be evidence as far as the matters therein; contained were legally admissible, viz. The deposition of Mary Kershner, aged about 74 years, taken 24 of March, 1819—She knew Valentine Grove and Iris family; she was 15 or 16 years old when he died. He married a widow Shafer, who had four children-by her first husband, Nicholas, Peggy, Betsey and Susan, all very small when their mother was married to Grove. Susan appeared to be about two years older than Mary the eldest of Mrs. Grovel’s children by her last husband. Peggy had married and left. 
      the faniily, but the other three lived with Grove. Betsey had married and left the family before Grave died. Dries toot remember whether Nicholas^ and Susan had ov not. Grove treated them as his own children. Théy always Called him father, and he spoke to .then) as he did to his own children, and sometimes called them children, and sometimes called then) by their Christian names*, Mrs. Grove, was upwards of 6Ó years of agé when her last husband died, and had but two children., M&ry and Barbara, hy him. That Mrs. Grove’s children by hep first husband, were known not to be the children, of Grove, but his step-children. Mary and Barbara were called Grove, and thé Children of Shafer called by the name of Shafer. Mary was married to Wolgamot, and Barbara was married td t/adwick Kemp, who was the father of Henry Kemp, the lessor of the plaintiff. The plaintiff then gave in evidence, that all of the step-children of John Feltigraw, mentioned in the foregoing deposition, died about 25 years ago, but left issue. The plaintiff then prayed the opinion of the court, and their direction to the jury, that if they believed the evidence, the plaintiff was entitled to recover all that part of Batchelor’s Delight and Felty’s Addition, for which the defendants had taken defence on the plots ib this causé. This prayer the court,' QShrivef and 71 Buckanan,'A. J.] granted. The defendants excepted,
    hetf’íMrepu“ -
    2. The plaintiff then further gave in evidence a grant for the tract oí land called The Amendment, for the’ptírpose of shewing that the tract of land called in the paterit Feltigraw’s Fortune, was also known by the minie of Felty’s Fortune, as it was called in thé declaration in the cause. This tract, called The Amendment, was granted to John Wolgamore and Mary his wife, and Lodwich Kemp and Barbara his wife, on the 10th of September 1787, and recited that they Were seized of arid in the following tracts or parts of tracts of land, lying iri Frederick county, and contiguous to each other, viz* 620 acrés, part of the Eesurvey on Batchelor’s Delight, originally on the 11th of November 1752 granted urito John Feltigraw for 8181 acres; Felty’s Fortune, originally on the 18th June 1742 granted to the the said Feltigraw for 150 acres; Felty’s Addition, originally on thé 25th of May 1743 granted urito the said Feltigraw for 120 acres, &c. He also offered iri evidence, the deed before mentioned, from John Wolgamot to Henry 
      
      Kemp, for the same purpose; and proved, by competent witnesses, that the tract called in the patent Feltigrah’s Fortune, is generally reputed and known in the neighbourhood by the name of Felly’s Fortune. The defendants then prayed the opinion of the court, that upon the declaration filed in- this cause, and the evidence stated in the exceptions, the plaintiff was not entitled to recover any part of the land called in the patent Feltigrah’s Fortune. The court refused to grant the prayer, and the defendants excepted. The verdict and judgment being for the plaintiff, the defendants prosecuted this appeal.
    The case was argued before Buchanan, Earle, Johnson, and Dorsey, J.
    
      Mdout, for the appellants,
    relied on Barker vs. Giles, 3 P. Wms. 282. Minshull vs. Minshull, 2 Atk. 412. Wythe vs. Thurlston, Amhl. 555. Gale vs. Bennett, I6id 681. 8 Vin. Abr. tit. Devise, (T. b.) pi. 3, 7,21, and (X, b.) pi. 5. 2 Eq. Ca. Abr. 290, pi. 7. Fow. on Dev. 224. Fyotvs. Pyot, 1 Ves. 335. Newcomin vs.' Dakham, 2 Vern. 729. Doe, d. Willey vs. Holmes, 8 T. R. 1. Goodtitle, d. Paddy vs. Maddern, 4 East, 496. Dunn, d. Moore vs. Millar, 5 T. R. 558. 6 T. R. 175. 1 Bos. Pull. 558. Beachcroft vs. Beachcroft, 2 Vern. 690. Pre4 in Chan. 430. Bailis vs. Gale, 2 Ves. 48. (4' Cruise, 246. j Throgmorton vs. Holliday, 3 Burr. 1618. Tanner vs. Wise, 3 P. Wms. 295.
    
      Taney, for the appellee,
    cited 4 Bac. Ab. tit. Legacies, {B. 2.) 348. Cooke vs. Brooking, 2 Vern. 106. Radtliff vs. Buckley, 10 Ves. 195. Godfrey vs. Davis, 6 Ves. 43; and 4 Cruise, 319.
   Buchanan, J.

delivered the opinion of the court, affirm, ing the judgment. He stated, that as the testator, Grove, had children of his own, as well as step-children, the legal construction of his devise was, that his own children only took under it, and that that construction could not be affected by parol proof.  