(489) Simon Williams the elder devised the land in dispute to his wife for life, describing it "as the land and plantation whereon I now live, containing six hundred and forty acres." By the two succeeding clauses of his will, he devised as follows: "I give and devise unto my son William Williams the tract of land whereon I now live, containing 640 acres (except the mill and two acres adjoining thereto, the two acres to be laid off in the most suitable manner), to him, his heirs, etc. I give and devise unto my son Simon Williams one-half the mill, and half the two acres of land, after the death of his mother, to him, his heirs, etc. I give and devise to my son Alison Williams one-half of the mill and half of the two acres adjoining thereto after the death of his mother, to him, his heirs, etc." After the death of the testator, Simon, the younger, purchased of William the land devised to him, and also of Alison his undivided moiety of the mill, and the two acres of land directed to be laid off adjoining thereto; and he becoming thus entitled to all the land mentioned in the will, the two acres adjoining the mill never were laid off. Simon the younger lived upon the land devised by his father to his brother William, brought a tract of land adjoining it, repaired the mill, and during his life cultivated land on the mill creek, both above and below the mill — that, and the two acres adjoining it being situated within the body of his cleared land. By his will he devised as follows: "I give my nephew, Simon W. Green (the defendant) negroes Davy, etc., (mentioning a number) and also the land whereon I now live, and my Hargrove tract, all containing seven hundred and eighty-seven and one-half acres; also my household and kitchen furniture, also my wagon, etc., belonging to the plantation whereon I live (one acre of land I except, to be laid off around my father's and mother's graves and others), to him and his heirs forever." *Page 401
The will contained two other clauses giving specific legacies to two other nephews — and no residuary clause was added.
The land on which the last-mentioned testator lived, and which is described in his will, deducting from it (490) the mill and two acres, contained exactly seven hundred and eighty-seven acres and a half.
The lessors of the plaintiff were the heirs at law of Simon the younger, and contended that the two acres of land adjoining the mill had been severed from the tract of six hundred and forty acres, and did not pass to the defendant, but descended to them.
The defendant insisted that the mill being situated on the tract of six hundred and forty acres, and the two acres never having been actually severed from it, in law passed under the devise to him, and his Honor being of this opinion, judgment of nonsuit was entered, and the plaintiff appealed. Upon hearing this case, it seems impossible to doubt either upon the words of the will, or the circumstances stated, that it was the intention of the testator to dispose of the mill, and the two acres of land, with the residue of the tract of which it originally formed a part, to the defendant. It is not like the cases cited, where the devise of land by a particular name, which was known by that name, was confined to the distinct parcel, notwithstanding other more general words. Nor is it like Helme v. Guy, 6 N.C. 341, where the words are "the tract of land whereon I now live," and the testator owned many tracts adjoining, which were known by different names, that on which he lived, being called the "Radcliffe tract." The several tracts were distinct parcels originally; derived by the testator at different times, and by different titles, were never known by one and the same name, nor, as far as appeared, occupied together. They remained several and the devise could therefore only pass the particular one designated, although thus designated by the terms "the tract of land whereon I live" instead of "the Radcliffe tract." But here the two acres formed a part of testator's paternal estate, and were never actually severed from (491) it, by allotment under the devises in his father's will. The whole including the mill, was given in one devise to the mother for life, and was occupied by her as one estate. Before severance, the testator, Simon the younger, extinguished all *Page 402 other titles to the mill, and the other parts of the tract of land, and also occupied the whole as one tenement, when he made his will and died — the mill being at a considerable distance from any of the outer boundaries of the tract, on which he was actually cultivating fields, situate on the stream on which the mill was erected, above and below it. The whole then was in fact one tract and parcel, and was so considered by the testator. It cannot indeed be supposed without express or plain words of exception, that the testator meant to leave out a small parcel of two acres in the heart of a large tract of land and within the portion of it then under cultivation, for the sake of its descending to numerous collateral relations, who were as the case states, his co-heirs. If there was any other devise which could embrace it, or even a residuary clause, the claim of the defendant might be more plausibly resisted. But the words are sufficient to carry the whole to him, and the other circumstances fortify that construction. Especially as the testator has made one exception, namely, of the family graveyard, which he no doubt intended not to appropriate to any particular relative, but to preserve to its former uses, by letting it descend to all his heirs, among whom he might well think, so small a quantity as one acre, dedicated to such a purpose would never be divided. The number of acres specified cannot make a difference. Quantity may be matter of description as in Proctor v. Pool, ante, 370, or as distinguishing which of two parcels is meant, when there is no other more than certain criterion. But in general it does not import to enter with the description, as identifying the parcel conveyed, more than it amounts to a covenant, that the parcel contains the quantity designated. It is by everybody regarded, if not as surplusage, as too vague to be relied on (492) as a definite or controlling description. It turns out here, that the quantity mentioned in the will is since found upon admeasurement, to be that contained in both tracts, deducting two acres. But it does not appear that the testator had surveyed the land, or knew that to be the exact quantity, so as to render it not at all probable that he could use those terms for a different purpose, or in a different sense, from that in which they are commonly received.
PER CURIAM. Judgment affirmed.
Cited: Jones v. Robinson, 78 N.C. 401; Horton v. Lee, 99 N.C. 232;Grimes v. Bryan, 149 N.C. 251. *Page 403