
    Deborah Walker versus John Dewing et al.
    
    “ I give and bequeath to my two sons, Israel and Timothy, a farm, and such rights and lots of common as are laid out adjoining the farm, and the buildings thereon, the same to be equally divided between them, both in quantity and quality, in manner following — I bequeath to Israel the southwardly end of said farm, except five acres, together with all that part of the meadow that lieth on the northeast side of the ditch that is cut through my meadow — I bequeath to Timothy the northwardly end of said farm, except the piece of meadow bequeathed to Israel, together with five acres before excepted — upon condition, that my two sons shall, i» equal proportions, pay and discharge the se\ eral legacies bequeathed to my daughters :99— Held, that the sons took estates in common.
    A special verdict, intended to present the question of the construction of a devise, referred to the devise as being contained in the will of I. W., mentioning the date of the will and of the probate, but not stating the devise : held, that the verdict was defective in substance.
    A special verdict cannot be amended by the minutes of the judge, without the consent of both parties.
    But with such consent it may be so amended. Semble.
    
    This was a writ of dower, brought by the widow of Israel Walker.
    The jury returned a special verdict, finding that Israel Walker was seised of the demanded premises during the coverture, “by virtue of a devise in the will of Israel Walker the elder, bearing date the eighth day of April, 1788, and duly approved on the fourth day of September, 1798, but whether the said Israel the younger was seised of an undivided moiety of the said premises by force of the said devise, or of the whole of the said premises in severalty, the jury pray the advice of the court. And if the court shall determine that the seisin was only of an undivided moiety, then the jury assess damages,” &c.
    The devise alluded to in the verdict was as follows :—“ I give and bequeath unto my two sons, Israel and Timothy, the farm on which I now live in said Hopkinton, and such rights and lots of common as are laid out adjoining to said farm and the buildings thereon, privileges and appurtenances thereunto belonging, the same to be equally divided between my two sons aforesaid, both in quantity and quality, in manner following, viz. I bequeath to my son Israel aforesaid the southwardly end of said farm, except five acres, together with all that part of the meadow that lieth on the northeast side of the ditch that is cut through my meadow. I also bequeath to my son Timothy aforesaid the northwardly end of said farm, except the piece of meadow bequeathed to my son Israel, together with five acres before excepted at the southwest corner of said farm next adjoining to James Gilson, to extend on the road easterly so far as to include the five acres and then with a straight line to the pond for a privilege of water ; — the farm aforesaid is hereby bequeathed to my two sons aforesaid, in manner as is aforesaid, to them, their heirs and assigns forever, upon condition that my two sons aforesaid shall in equal proportions pay and discharge the several legacies which in this my last will and testament I shall bequeath to my several daughters, viz. Hannah,” &c.
    
      Ucu 13th.
    
    
      Stearns and Draper, for the demandant,
    contended that the devisees took estates in severalty. The case is like grants of adjoining land, where the monuments have been destroyed.
    Hoar, contra,
    objected that no judgment could be rendered upon the verdict, because it does not state what was the devise ; and the Court cannot amend a special verdict. Bac. Abr. Verdict, D. The Court cannot say that the will now presented to them., js the one to which the verdict refers. He also contended that the devise created a tenancy in common.
    
      Oct. 17th.
    
   Parker C. J.

delivered the opinion of the Court. We think it quite clear, that by the will of Israel Walker, the farm was devised to the two sons as tenants in common, and not one half to each in severalty.

But we are sorry to find, upon examining the authorities cited and others upon the subject, that no judgment can be rendered upon this special verdict of the jury, it being deficient in substance, and not capable of being amended but by consent Indeed some of the authorities do not make that exception , with which however we do not agree, as we can see no good reason why a special verdict, which, in practice, is little more than an agreed statement of facts put into this form, should not be corrected, both parties consenting. But without such con sent, (and there is none in this case,) there can be no amend ment, and if the verdict is defective, there can be no judgment  