
    Jackson, ex dem. Newkirk and others, against Embler.
    NEW- YORK,
    May, 1817.
    A devise of iaod of^perpetuit-y! is nothing in the will from ■which a fee can be raised by imoniyta0niifeeesS ths
    THIS was an action of ejectment, brought to recover five eighths of a farm in the town of Montgomery, in the county of Orange. The cause wás tried before Mr. Justice Platt, at the . . . t. . Orange circuit, in September, 1816, when a verdict was taken 07 * ^or plaintiff for five eighths of the premises in question, ject to the opinion of the court.
    The lessors of the plaintiff were five of the heirs at law oí Henry Newkirk, who died about the year 1798, leaving eight children his heirs at law, after having made his will, dated, the 19th of June, 1797, in which were contained the following and devises : “ I give, devise, and bequeath, to my wife, Agnes Newkirk, during her natural life, one working horse, one breeding mare, three milk cows, and six sheep, to be kept on the place.” “ I give, devise, and bequeath, to my son, James Newkirk, the two lots of land Nos. 5 and 6, (which are the premises in question,) in the last division of the five thousand-acre tract, containing one hundred and forty acres.” “ Also, all the hogs belonging to the place, with giving two to my wife every year, to fatten with her own grain, for her own use.” James Newkirk, by deed dated the 26 th of December, 1805, conveyed the premises to Sears, who, in 1897, conveyed them to the defendant. James Newkirk died on the 25th of January, 1815, before the commencement of this suit.
    The case was submitted to the court without argument.
   Per Curiam.

The lessors of the plaintiff claim five eighths of the premises as heirs at law of Henry Newkirk, deceased ; •and the defendant claims under title derived from the will of Henry Newkirk, by which the premises are claimed as devised to his son James Newkirk. The words of the will are, “ I give, devise, and bequeath, to my son, James Newkirk, the two lots of land Nos. 5. and 6. in the last division of the five thousand acre tract, containing one hundred and forty acres.” James Newkirk died before the commencement of this suit; and the only question is, whether, under the above devise, he took a fee or only a life estate. A life estate only passed under this devise. There are no words of perpetuity, nor is there any thing in the will from which a fee, by implication, may be inferred. We are'accordingly of opinion, that the plaintiff is entitled to judgment for five eighths of the premises.  