
    SEPTEMBER TERM, 1773.
    Lib. D. D. No. 19. fol. 338.
    Walter Smith’s Lessee against Smith Middleton and others.
    EJECTMENT for a tract of land called Jourdan, lying in Charles County.
    The case was this : John Smith, by his will, dated the 13th April, 1716, made the following devises % (the introductory clause mentioning all his worldly estate to be disposed of ■) “ 300 acres to his eldest son, and no more, in 86 fee, after the death of his wife ; 300 acres to his daugh-» “ ter A. in fee, 400 acres to his daughter B. in fee.” The land so devised contained, on admeasurement, 360 acres more than the number of acres mentioned in the patent® And the quantity devised and described by the will comprehends the whole quantity mentioned in the grant, and the plaintiff, as heir at law, claimed the overplus as undivided, or not disposed of by the will.
    
      Jening's, for plaintiff, (short notes,)
    Contended, that where the intent of the testator was doubtful, the construction must always be in favour of the heir at law. 1 Stra. 488. In which case the Court would not supply the surrender of a copyhold against the heir at law. 5 Atk. 10. 2 Fez. 49, 50. 164. Cro. Car. 369. 1 P. Wms. 38. A will shall not have, by implication, such a construction as will disinherit the heir. T. Raym. 453® Talbot, 157.
    
    
      Johnson, for defendant, (short notes,)
    Argued, that the preamble of a will was evidence of the intention of the testator. Ca. temp. Talbot,157. 2 Stra. 1020. That things not properly described, or wrong named, shall pass according to the intention of the testator. I P. Wms. 286. 6Q0. That negative words in a will shall exclude the devisee from taking more, in any manner whatever. 3 Mod. 45. He also cited 1 Fez. 121,122. 421.
    
      Hall, for the defendant, (short notes,)
    Said, the statute of 21 James takes away the right of entry, after an adverse possession of 20 years ; and if the circrv is taken away, the right of ejectment fails. 1 Burr. 119. 1 Salk. 421. 1 Raym. 741. He admitted the principle that a possession of a part is possession of the whole, in law, and the law will adjudge the possession to be in him who has the right; but it is otherwise where there is an actual enclosure, or an exclusive possession, as there was in this case. Brozvnh 230. Dame Petfs case. Tin. Abr. Disseisin, 82. 8 Mod. 287. That this case was distinguishable from those cases where there was a difference about boundaries. The separate possession, in this case, is under the will in 1716.
   It appears that, in this case, a Juror was withdrawn, and persons were appointed to make a division.  