The testator, at the time he executed his will, devised therein to his son, the defendant, eighty acres of land certainly designated. In his lifetime, and after the execution of his will, he conveyed by deed to this son as part of the land so devised to him. What the testator's motive for this was does not appear, but, whatever it may have been, he did what he had power to do. This deed did not affect the devise, except to the extent of the land conveyed by it. As to that, *Page 242 it had the effect to place the title thereto in the defendant in the testator's lifetime. In effect, as to the land, the will was no more than an affirmance of the deed. There is nothing in the will that, (329) in terms or by implication, modifies or qualifies the devise; so it took effect and became operative, as far as it might do so, at the time of the testator's death. It did not pass the title to the land embraced by the deed, because the deed itself did that in the testator's lifetime. If, however, for any cause, the deed was ineffectual, then the devise passed the title to that land. The devise passed the title to the defendant to so much of the eighty acres embraced by it as the deed did not include. This is the plain meaning and effect of the terms of the devise, and there is nothing in the will that provides otherwise, nor is there any reason in law why it should not.
The defendant contends that the effect of the deed was to make the north and south line, specified in the devise, the line of the west side of the land embraced by the deed; so that he is entitled to the eighty acres situate just west of the latter line. This was, clearly, not the intention of the testator. His purpose is to be ascertained from the devise, and it specifies the testator's "outside line running north and south," as it existed at the time he executed his will.
We are very sure that the court failed to interpret the devise in question correctly. The defendant is entitled, as we have indicated above, to eighty acres of land, including in this quantity the land embraced by the deed mentioned. The judgment must, therefore, be set aside, and a judgment entered according to this opinion.
Error.
(330)