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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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