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Jane M. Carroll, Plaintiff in error, v. Lessee of George W. Carroll, De Rosz Carroll, Robert D. Carroll, Charles W. Carroll, John M. Martin and America his Wife, and John Ford and Mary his Wife U.S. 275 (1854)

handle is hein.slavery/ussccases0216 and id is 1 raw text is: DECEMBER TERM, 1853. 275 Carroll v. Lessee of Carroll et al. JANE M. CARROLL, PLAINTIFF IN ERROR, v. LESSEE OF GEORGE W. CARROLL, DE Rosz CARROLL, ROBERT D. CARROLL, CHARLES W. CARROLL, JOHN AL MARTIN AND A-ERICA HIS WIFE, AND JOHN FoRD AND MARY HIS WIFE. By the common law of Maryland, lands of which the testator was not seized at the time of making his will, could not be devised thereby. In 18150, the legislature passed the following act: See. 1. Be it enacted, &c., That every last will and testament executed in due form of law, after the first day of June next, shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed on the day of the death of the testator or testatrix, unless a contrary in- tention shall appear by the will. See. 2. That the provisions of this act shall not apply to any will executed, before the passage of this act, by any person who may die before the first day of June next, unless in such will the intention of the testator or testatrix shall appear that the real and personal estate which he or she may own at his or her death, should thereby pass. See. 3. That this law shall take effect on the first day of June next. In 1837, Michael B. Carroll duly executed his will, making his -'ife Jane, his residuary legatee and devisee. After the execution of his will, he acquired the lands in con- troversy, and died in August, 1851. The lands which he purchased in 1842 d'I not pass to the devisee, but descended to the heirs. The cases upon the subject examined. A distinction is to be made between cases which decide the precise point in question and those in which an opinion is expressed upon it, incidentally. Evidence that the name of the tract of land, conveyed by a deed, was the same with the name given in an early patent; that it had long been held by the persons under whom the party claimed; and that there was no proof of any adverse claim, was sufficient to warrant the jury in finding that the land mentioned in the deed was the same with that mentioned in the patent. The lessee of the plaintiffs having claimed, in the declaration, a term of fifteen years in three undivided fourth parts of the laud, and the judgment being that the lessee Jo recover his term aforesaid yet to come and unexpired, this judgment was correct. THIS case came up, by vrit of error, from the Circuit Court of the United States for the District of Maryland. It was an action of ejectnent brought by the defendants in error, as heirs of Michael B. Carroll, to recover three undivided fourth parts of all of three several tracts or parcels of planfable land, called, for the first of said three tracts, Black Walnut Thicket and Content, contiguous to each other, lying and being in Prince George's county, in the State of Maryland, con. taining seven hundred acres, more or less; and called, for the second of said three tracts, Addition to Brookfield, sittate, lying, and being in Prince George's county aforesaid, containing one hundred and fifty acres, more or less; and called, for the third of said three tracts, Lot No. 1, being part of a tract of land called Brookfield, containing four hundred and fifty acres, more or less.

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