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John Den, Lessee of Polly Weatherhead, Plaintiff in error, v. John Baskerville, John White, John Parker, Peter Haynes, William Stewart, Nancy Stewart, Nelson B. Turner, Jacob Gallaspie, Peter Bryson, Benjamin Parrish, William Johnson, Reuben D. Brown, Tho U.S. 329 (1851)

handle is hein.slavery/ussccases0253 and id is 1 raw text is: DECEMBER TERM, 1850. 329 Weatherhead's Lessee v. Baskerville et al. binds the title subsequently acquired by the death of his eldest- son, the first-born tenant in tail. We are satisfied, therefore, after the fullest consideration of the case, that the decree of the court below is right, and should be affirmed. Order. This cause came on to be heard on the transcript of the rec- ord from the Circuit Court of the United States for the South- ern District of New-York, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs. JOHN DEN, LESSEE OF POLLY WEATHERHEAD, PLAINTIFF IN-ERROR, V. JOHN BASKERVILLE, JOHN WHITE, JOHN PARKER, PETER HAYNES, WILLIAM STEWART, NANCY STEWART, NELSON B. TURNER, JA- COB GALLASPIE, PETER BRYSON, BENAxIN PARRISH, WILLIAM JOHNSON, REUBEN D. BROWN, THOMAS SAUNDERS, RICHARD NVINN, THO,%rAs STONE, BEVERLY HEAD, DAviD CHENAULT, IV. W. WEATH- ERHEAD, JOHN WEATHERHEAD, GEORGE T. BROWN, B. F. SHARP, AND FRANCIS ROGAN. Where a will contained the following expressions: my estate to be equally divided amongstmy children, and also,mylands and sla'es to be equally divided amongst my children; and had in it also the following clause: to each of my daughters a small tract of land, - the last clause must be rejected as void and inoperative, an4 cannot be used for the purpose of showing such au ambiguity as would let in ex- trinsic testimony to explain the intentions of the testator. When such testimony is introduced, it must be of facts unconnected with any general declaration or wishes expressed by a testator for the disposition of his property. In the present case, the testimony offered purported to express those wishes, and was therefore inadmissible. Where the Circuit Court instructed the jury that they might consider the acts of one of the daughters and her husband, in acquiescing in a partition, and in receiving a small tract of land, as a recognition of the true construction of the will to be, that the daughters were not entitled to an equal share, the acts of partition being accompanied by long adverse possession, say thirty or forty years, this instruction was erroneous.' The daughter was a minor when she married, and continued covert until within a short time before .she brought the suit. No presumption, arising from her acts, could therefore be made against her. And a recognition by her, when freed from coverture, of a sale which she had made in conjunction with her husband, amounted to no more than a ratification of that particular sale. So, also, an instruction was erroneous, that the jury might presume from the evidence that there had been a legal partition of the testator's laud in respect to his daughters, by order of a court, when the executor assigned to them certain parts of it. By .the laws of the State where the lands were, such a partition was a judicial act, and became a record.

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