
    Smith, ex dem. Roosevelt and others, against Van Dursen.
    ^“¿v ®- having devised personal estate and in wsifa iuedto thetés" *0rta “jj after the death of the father, ‘he only brother of the testator, in isii, the lot, anf°in partontto<A. “^defendant hlfid” that Tha title ’to the lot the testator at death, and that v-íse it-fhlthis tMe^toit^oth and as thJ heir hivinVionvej^ jjf ’^sors^»? the plaintiff, who claimed underthatconentitled to reSnóf eject" the’defefdánt brother8"
    A devise of land held adversely to the but it descends to his heir.
    THIS was an action of ejectment, for part of lot No. 60, in the town of Mentz, in Cayuga county. The parties agreed upon a case, containing the following facts, for the opinion of the court.
    
      Peter Elszoorth, an officer in the Nczo-York line during the revolutionary war, and as such, entitled to bounty land, made and published his last will and testament, dated May 2d, 1781, by which he devised all his real and personal estate, whatsoever, or wheresoever, to his father William ’ ’ Elszoorth, whom he authorized and directed to sell his real . . estate, and appointed him his sole executor. P. Elszoorth died in the same year, without lawful issue, leaving his father W. Elszoorth, and a brother Theophilus Elszoorth. Letters patent bearing date the 7th of July, 1790, were afterwards issued to Peter Elszoorth, for a military lot, which by deed bearing date the 11th of October, 1794, W. Elsworth conveyed to Christopher Tappen, in fee, who by deed of the 3d of October, 1794, conveyed the same to Cornelius C. Roosevelt. Roosevelt died on the 10th of February, 1814, having devised the lot to Eliza Evertson and Sarah Rooseveil, two of the plaintiff’s lessors, his heirs at law. WilHam Elszoorth, the father of the patentee, died in October, 1799, and after his death, in 1811, Theophilus Elszoorth, the brother, entered into possession of the lot, his being the - , , , ° nrst actual possession, and died in possession, except of 200 acres, the premises in question, having in May, 1806, conveyed them to Yeomans, who in 1814 conveyed the same to Comb, who by deed bearing date the 28th of August, 1815, conveyed the same to the defendant. The defendant entered into possession, and continued in possession until after the bringing of this suit. "
    
      Griffin, for the plaintiff, contended,
    that the lands claimed, upon the death of Peter Elsworth, vested in his father, either as devisee, or heir at law: He cited Powell on Devises, 236. 1 N. R. L. 313. sess. 36. ch. 80. s. 7. sess. 26. ch. 83. s. 8. Webster's Ed. vol. 3. 399. Jackson v. Phelps, 3 Caines, 62. Jackson v. Winslow, 2 Johns. Rep. 80.
    
      Sudam, contra, insisted,
    that the lots in question did not pass by the will of P. E. in 1781, as his right to the land rested on the resolutions only of the legislature. The act of 1790 refers only to cases of soldiers dying since 1783; and the act of 1783 gives the seisin at the time of the death. But to render the will valid, there must have been a seisin at the time of the devise.
    Again; the act of 1790 does not affect this case, because P. E. died before 1783, and the act of 1803 does not affect the title of his brother Theophilus, because his father died' in 1799.
    
      T. E. took the land on the death of P. E. as heir to his deceased brother. There were no intermediate heirs, and the act of 1803 has no effect on the case, as the father died in 1799. T. E. has always been the heir at law of the deceased soldier. Why then refer the seisin back in order to change the descent ? This case is different from any that has yet been presented to this court, relative to the rights of deceased soldiers. The case of Jackson, ex dem. Austin and others, v. Howe, (14 Johns. Rep. 405.) is the only one that has any bearing bn the present case. All the other cases are very distinguishable from it. The court will always favour the heir at law, and there was no period of time from the death of the soldier, that his brother T. E. was not his heir.
   Spencer, J.

delivered the opinion of the court. It is scarcely necessary after so many decisions upon the points arising in this case, to do more than briefly state the facts, and refer to the cases decided.

Peter Elsworth, the patentee of the lot, of which the premises in question are a part, was an officer in the revolutionary war, in the line of this state, and as such entitled to a grant of bounty lands ; the patent to him was a fulfilment, on the part of the state, of the engagement to give the lands. He died in May, 1781, and by his will duly executed, he devised to his father, William Elsworth, all his real and personal estate whatsoever, and wheresoever, and constituted his father executor. The will authorized the executor to sell and convey the real estate. The plaintiff’s title is derived under a sale by the executor, and no objection is made to the plaintiff’s title, if William Elsworth became seised of the lot, either under the will, or as heir to the patentee.

Peter Elsworth died without issue, leaving his father and a brother Theophilus ; the defendant has deduced a regular title under him, if he was seised as heir of the patentee.

In the case of Jackson v. Howe, (14 Johns. Rep. 406.) Jackson v. Phelps, (3 Caines, 62.) and Jackson v. Winslow, (2 Johns. Rep. 80.) this court decided, that by the act of the 5th of April, 1803, the titles to the military bounty lots were vested in the officers and soldiers, at the time of their respective deaths, without reference to the period of issuing the letters patent.

It follows, then, that Peter Elsworth was seised of the lot when he died, and might devise it. But the act regulating descents, adopted by the act of the 5th of April, 1803, in reference to their lands, would also vest the lot in William Elsworth, as heir to his son, the patentee, for the lot was not held by bona fide purchasers or devisees under Theophilus, on the 5th of April, 1803.

The lessors of the plaintiff, Eliza Evertson and Sarah Roosevelt, are the devisees, and also the heirs at law of Cornelius C. Roosevelt. The adverse possession at the time of his devising, though it invalidates the devise, does not prevent the descent.

Judgment for the plaintiff.  