
    Solomon Ferris and his Wife, and Joseph Ransom and Wife, against Anning Smith, E. Smith, and Luff Smith, impleaded with others.
    Where a testa-⅛1"// ® “,1™/ his win, used l!ie¿®d what worldly p°tfa‘*seci {⅛,⅛ endow me with, ⅞ Ihe - - ■ following manner/' and then gave his wife a third of his per» auTuieTseYf his house and h“rwkiowhoo^ aud then de-lows: “I do give and be-son Mn/íbthe ?<» equal south river, and nm-"t^aices un' hundred acres, together with the grist-mill, after he has arrived at lawful age, until that tíme u shall btion^ to ijy ~t0 make use of as she without may think prop-the testa-ii like manner, devised the other parts of his land, &c., to his sons, but using-words of inheritance, or the word estate, and «raw die remaining two thirds of his personal estate to his daughters: Held, that A., and the other üetisoe-, of the lands of the testator, took an estate for life only, under the will.
    Where the defendants in partition pleaded non tene.nt insimnl. on which issue was joined; and it appeared that A., one of the defendants, had, before the service of the petition and notice, conveyed all his right in the premises, to one of his co-defendants, who was before a tenant in common with him ; the court, alter the rights of the parties had been ascertained, by the verdict, refused to turn the plaintiffs round to another action, on account of a variance between the petition and proofs, as to the quantity of interest in the respective tenants in common; but gave judgment, that, as to A., the plaintiffs should go without day, aud pay his costs; but that.,.as to the other defendants, the plaintiffs should have judgment, on the verdict, according to the proofs in the cause.
    THIS was a ease in partition. The petition for partition, under tire statute, (sess. 36. ch. 100. 1 N. R. L. 507. 2 Rev. Stat. 317, &fc.) and notices, were dated the 10th of November, 1817, copies of which notices were served on the above named defendants, in November, and the petition, &c. presented in January term, 1818. Previous to that time, notice had been given, the 10th of October, 1817, to the infant children of Lewis Smith, of an application to the court in October term, 1817, for the appointment. guardian, which was accordingly ’ ' ' " 7 of a guardian, which was accordingly done, and A. Smith, above named, was appointed their guardian. The petition stated, that the petitioners, in right of their respective wives, with tlie defendants, naming them particularly, and stating their respective rights, and, %mong them, Etijphalet Smith, and Anning Smith, of Marlborough, in Ulster County, are seized in fee simple of certain lands, &c. situated in Marlborough, in said county, describing them, &c., and praying for a partition, &c. .
    _ The above named defendants pleaded, “ that they did not hold, nor on the day of the exhibition of the petition of the said petitioners in this behalf, nor ever afterwards, did hold the said land and premises in the said petition mentioned and described, nor any part or parcel thereof, together and undivided with the said petitioners, as the said petitioners, by their petition aforesaid, have supposed, and of this the said A. S., E. S'., W. S., and L. S., put themselves upon the country, &c., and the petitioners ao the like, &c.
    At the trial the plaintiffs proved that Arming Smith died in possession of the premises, being about 169 actes of land, &c., in I — í S ■) f;? p. r boon in riAcsaacinn tborpof -t ■ I T T ”, * ill n í m 1802, having been in possession thereof since 1775; that his son. Lewis Smith, took possession, after the death of his father, and died in possession about two years ago. That Aiming Smith left several children, whom the witness particularly named, and, among others, Anning Smith, one of the abóte named plaintiffs.
    The defendant gave in evidence a quit-claim deed, dated 28th of October, 1817, from. Anning Smith, son of A. S., deceased, of all his right, title, and claim to the premises m question, being about 100 acres of land, a wood lot, containing about nine acres, and a piece of land, containing about 15 acres, to his brother Eliphalet, above named.
    Ihe defendants also gave in evidence the last will and testament of Arming Smith, the elder, deceased, dated 28th of October, 1802. The testator, after directing his burial, <fce., added, “ And as to what worldly goods it. has pleased God to endow me with, Í will and dispose of, in the following manner and, after making provision for his wife, devised as follows : “I do give and bequeath to my son Arming, the one equal south half of my land, beginning at the river, and running west until it makes one hundred acres, together with the grist mill, after he has arrived at lawful age ; until that time it shall belong to my wife, Eleanor, to make use of as she may think proper.” The testator, in like manner, devised the north half of his land, beginning at the river *and miming west, until it made 100 acres, to his son Lewis ; and, afterwards, added, “ I do will and bequeath that my land, beginning west of the two hundred acres given to my sons. Lewis and Aiming, and running west to the south-east corner of the button-wood bridge, and then north to the line of Zophar Perkins, be divided into equal parts, &c.; and I give and bequeath one equal part to my sons, Eliphalet, Lewis, and Arming, and to the heirs of my sons, Nathan and Clark, deceased, to be distributed by the executors.” The testator devised, in a similar manner, various other parts of . his real estate to his children and grandchildren ; and gave the remaining two thirds of his personal estate to his. daughters; and appointed his wife executrix, and his sons, Eliphalet, Lewis, and Arming, two of his sons-in-law, and G. N. his executors.
    
      Sudani and P. Ruggles, for the defendants.
    They cited Frogmorton v. Holy day, 3 Burr, 1618. 6 Cruise Dig. 243, 244. tit. 38. ch. 11. s. 22, 23.
    
      Oakley, (Attorney-General,) contra.
    He cited 8 Johns. Rep. 141. 9 Johns. Rep. 222. 10 Johns. Rep. 148. 14 Johns. Rep. 198. 6 Cruise, 305. ch. 38. s. 10. 25.
   Spencek, Ch. J.,

delivered the opinion of the court.

Two questions have been made on the argument; first, whether the will of Arming Smith, the elder, devising his real estate, vested an estate of inheritance in the devisees, or an estate for life only ? 2d. Whether the alienation of the interest of Arming Smith, the younger, before the service of a copy of the petition and notice on either of the defendants, defeats the action ?

On the first point, there can be no doubt that the will vested an estate for life only in the devisees. The will contains no words of inheritance, nor any thing to show, according to the settled rules of construction, an intention on the part of the devisor to convey a fee.

The deed from Arming Smith, who was a co-tenant in com-iaou. bears date before the service of a copy of the petition and notice upon him, or either of the defendants; and, *until such service, the suit is not commenced. His plea is, therefore, made out, that he did not hold together with the other parties.. But he conveyed all his right to Eliphalet Smith, who was, before that conveyance, a tenant in common with the plaintiff's and the other defendants. His plea, and that of the other defendants, except Arming Smith, is, therefore, falsified; for it appears they do hold as tenants in common. It is true that they do not hold precisely in the manner stated in the petition; but the act (1 11. L. 508. s. 3.) refers it to the court, after the final determination of the issues, to ascertain and determine the respective rights of the 'parties in such lands, tenements, or hereditaments, and give judgment that partition thereof be made betiveen them according thereto, or between such of them as shall have any right therein.” If there be, then, a variance between the petition and proofs, as to the quantity of interest which any of the tenants in common have in the lands whereof partition is sought, this can be set right by the court, to whom it is referred to ascertain and determine the respective rights of the parties. There can be no reason, now that the rights of the parties are ascertained, to turn the plaintiffs round to another suit; and we are clearly of opinion, that the legislature never intended, by giving the plea of non taunt insimul, if the defendant was a tenant in common, that he should defeat the partition, by showing that the extent of interest was inaccurately stated in the petition. As to An-nins Smith, as he was not a tenant in common when the proceedings were commenced, nor when he pleaded, he is entitled to go without day, and recover his costs; but as to the other defendants, the plaintiffs are entitled to judgment according to the proofs in the cause.

Judgment accordingly.  