
    Jackson, ex dem. Merritt and wife, against Wilson.
    Where A. he-a“ representa’icy of°miiltary ho nty land, which had not mide his win,’ vMngfMs es-wife and two vbldhlaa’ foi iocs: as there ty> »f .someiking coming to me qf my bnwhich is mi T^heaimefi brltherWü!>for S that tids tolhTfnterest of AP1ntathe military boum was *not aínHevlse to his daughter!
    THIS Was an action of ejectment brought to "recover a paré an unimproved lot of land, situate in the town of Cincinnatusf *n t;^e county of Courtlandt; the cause being at issue, the following case was agreed to by the parties, and submitted to the court, ivithout argument.
    
      Isaac SherwoodIvas a lieuteriaht in the second New-York regiment, and died intestate, in the year 1777, leaving Job Sherwood, his father, Samuel Sherwood, his eldest brother, Job Slier-wood, Jun., tiis youngest brother, and four sisters, his next of jyn. a. patent Avas granted to Isaac Sherwoodand his heirs and assigns, for the lot in question, on the 30th of September 7 1 -r 1790. Samuel Sherwood died in 1786, having, by his last Avili and testament, dated May 19th, 1786, devised one third of his estate to his wife, and the other two thirds to his daughters Rachel and Sarah; arid if either of them should die before she came of age, to the survivor. The will, after the last mentioned bequests, contained the folloAving: “ I give unto brother, Job Sherwood, all my Avearing apparel: and as. there is some expectation of something coming to me of my brothér Isaac’s, deceased, estate, which is not comprehended iri the above, I give it unto my said brother, Job Sherwood, for ever.5’ Isaac Sherwood left other property beside his military lands. Job Sherwood, Jun., claimed the land in question, either under the will of his father, or as devisee under the will of Samuel Sherwood, and sold it to Jasper Crosby, on whose application letters patent were issued, arid the defendant held under Crosby. Samuel Sherwood nexrer filed any claim for the land, nor took any steps to obtain letters patent for the "saíne during his life, Rachel, one of the lessors of the plaintiff, xras the daugher of the said Samuel Sherwood. Sarahs the other daughter, died in her infancy. The lessors Of the plaintiff claimed two thirds of the lot in question, in right of Rachel, under the will of Samuel Sherwood,
    
   Spencer, J.,

delivered the opinion of the court.

The intention of Samuel Sherwood to devise the premises in question to his brother, Job Sherwood, it appears to me, is quite plain and manifest. After devising one third of his estate to his wife, and the residue to his daughters, the will proceeds: “ I give unto my brother* Job Sherwood, all my weami£ apparel : and as there is some expectation of something coming-to me of my brother Isaac’s, deceased, estate,, which is not comprehended in the above, I give it unto my said brother, Job Sherwood, for ever.’’

The case furnishes full evidence, that the devisor had taken no measures relative to the lot in question; and it is a fact which we have a right to notice, that, in 1786, no lands had been granted for military services;. the legislature had> by resolution, declared their intention to make grants, and had passed one or more statutes to carry that resolution into effect; but the devisor did not, and could not, know where those lands were situate: he was correct, therefore, in calling it an expectation of something coming to him from his brother Isaac’s estate; and I am entirely satisfied that it related to his military bounty lands. He explicitly declares that the estate he expected to derive from Isaac was not comprehended in his devise to his wife and daughters, and he.gives it by words, which, in the construction of wills, carry a fee to his brother Job. ,

If, however, the lot did not pars to Job, by this devise, it is sufficient to defeat the claim of the lessors,- that it was not devised to his daughters; for by the act of the 5th of April 1803, (revised in 1st R. L. 305.) this military lot went to the father of Isaac Sherwood, unless it passed by the will of Samuel ; therefore, in every view of the case, the lessors of the plaintiffs Iiave no title to the premises.

Judgment for defendant.  