Field, C. J. concurring.
This is an action of ejectment to recover five undivided ninths of a tract of land in the city of Oakland. Both parties deraign title from Luis Peralta, deceased, to whom the land was originally granted by the Mexican Government. The plaintiff claims under conveyances from certain of the heirs at law of Peralta, and the defendant under an instrument purporting to be a will executed by Peralta on the twenty-ninth of April, 1851. This instrument, after reciting that he, Peralta, had already portioned out to his sons their respective lands, contains the following clause: “ I declare that these lands comprehend all my property of the Rancho de San Antonio, the title of whose concession and possession is in the hands of my son Ygnacio, and which lands I have already divided among my sons as *639a donation inter vivos, to their entire satisfaction, and which donation by these presents I do hereby ratify.” The grounds upon which the defendant bases his claim to a title are: Mrst, an estoppel growing out of these recitals; and, second, the ratification contained in this clause. In our view, the title is perfect upon either ground.
The case of Denn v. Cornell (3 John. Ca. 174) is directly in point upon the question of estoppel. The action was ejectment, the plaintiff claiming, as in this case, under a conveyance from the heir at law, and the defendant under a will containing a clause in these words: “ And whereas I have conveyed to my son Cadwallader my lands at Coldenham, and to my son David my lands in the township of Flushing, I give and devise all my remaining lands,” etc. The suit was brought to recover the lands referred to as having been conveyed to David, whose title had been acquired by the defendant. “ I consider,” said the learned Judge who delivered the opinion of the court, “ that the heir of the testator is estopped by the recital in the will, to deny that the premises were conveyed to David. It is an act of his ancestor, to whom he is a privy.” After referring to a number of authorities, and particularly to the ease of Shelley v. Wright, (Willes’ R. 9) he proceeded as follows: “From these authorities the Court concluded, in that case, that the defendant was estopped by the recital in a bond of a particular fact, from denying that fact. In the present case, the will contains a recital of a particular fact, viz: that he had conveyed the premises in question to David. By this recital the lessor of the plaintiff is estopped, as heir to the testator, from denying that the testator conveyed the premises to his son David.”
It is impossible to distinguish that case, in any of its material features, from the case at bar. Here the recitals are also of particular facts, and there is no doubt that the two cases stand substantially upon the same footing. The difference between them is merely verbal, and there is not a plausible reason in favor of an estoppel in the case cited which does not apply with equal force in this. In that case the will recited the fact of a conveyance, and the difference is that in this it recites an apportionment and donation. If the word conveyance had been used instead of donation, the analogy would be complete, and we think the effect is the same, not*640withstanding this difference in the use of terms. Nothing could have been meant by a donation but a gift in accordance with the apportionment, and the necessary intendment is that this gift had been consummated in such a manner as to render it legal and valid. This is undoubtedly the proper construction, and our opinion is that the heirs at law, and all persons claiming under them, are estopped from denying that a title had passed in conformity with the recitals in the will. In this view of the case, it is immaterial whether the instrument, although it purports to be a will, is operative for testamentary purposes or not. It is executed with all the formalities required in the execution of a deed, and it was admissible in evidence without regard to its testamentary character.
Upon the question of ratification we entertain the same opinion of the merits of the controversy, but it is unnecessary to dwell upon this point. The language used was equivalent to saying, I have given these lands in certain proportions to my sons, and I hereby confirm and ratify the gift. There is no doubt that this was sufficient to pass the title, and it is clear that a testamentary disposition was not contemplated. The intention was to vest the title immediately in the sons, and it is of no consequence that the instrument professes on its face to be a will. The same instrument may operate both as a conveyance and as a will or devise, in regard to different pieces of property. (Robinson v. Schly, 6 Georgia, 515.)
Judgment affirmed.
H. W. Carpentier, Wm. H. Patterson and A. A. Cohen, on behalf of appellant, filed separate petitions for rehearing, mainly to the point that the record shows that the will of Peralta was not admitted in evidence, and that this Court erred in passing upon the construction of the will; counsel insisting that the will was offered and admitted in the Court below as a regularly probated instrument, and not as an original deed or instrument; that consequently their objections were to it as a probate record, and that if it had been offered as a deed of confirmation of a previous gift, appellant would have met it by proof, first, that Peralta was non cbmpos mentis at its execution, and, second, that its “ donatio inter vivos ” was upon conditions which had been broken by the donees.
*641On this petition, Cope, J., delivered the opinion of the Court— Field, C. J., concurring.
We see no' ground upon which to grant a rehearing in this case. There is no foundation in the record for the position that the will of Peralta was not admitted in evidence. The only question raised by the appellant in the Court below seems to have been in regard to its admissibility as a probated instrument. In our view of the case, that question was entirely irrelevant, and the character of the instrument for testamentary purposes is immaterial. The only matters that we regard as properly before us were passed upon in our previous opinion, and we have no doubt of the correctness of the conclusion arrived at. The suggestions of counsel in reference to the validity of the instrument may all be true, but they have lost the opportunity to show that fact in the present case.
Rehearing denied.