Johannis Vandeursen, deceased, is admitted to be the source of title, as claimed by both parties. His son Robert, under whom the lessof s of the plaintiff derive title, was his heir at law; and the defendant claims under John, a younger son of Johannis. To establish his right, the defendant introduced the will of Johannis, and then went into proof to show that his three sons held and used the real estate, of which their father died seised, as tenants in common, until about the year 1786, when a parol partition was made between them, upon which the premises in question were allotted to John. On the part of the plaintiff, proof was offered to show that Johannis Vandeursen was incapable of mating a will. This was objected to, but admitted by the judge, if the defendant relied upon the will to establish his title. Upon this the defendant elected to abandon the will, and rely upon the right derived under the parol partition. One of the grounds urged in support of the present motion is, that this will was improperly excluded. There certainly can be no pretence for setting aside the verdict on that ground. For, if the defendant set up this will as a part of his title, and meant to rely upon it to take away the right of the heir at law, it was surely competent for those claiming under the heir at law to show that the testator was incapable of making a will. The only question before the jury was respecting the parol division; and if this division was valid in law, it might be questionable, whether the verdict ought not to be set aside, as being against the weight of evidence. There is no doubt but that, where the title is admitted to have been in common, a parol partition, followed up by possession, will be valid, and sufficient to sever the possession. (4 Johns. Rep. 212.) But where the whole right and title of the party, setting up such tenancy in common, is denied, and, in fact, abandoned, as in the present case, by laying out of view the will of Johannis Vandeursen, the parol partition will not operate as a transfer of tide. The will having been abandoned, the title was in Robert, as heir at law, and that could not be devested by parol. The *277possession in common was for such a length of time, that, perhap: a title in common might have been presumed, had not the defendant shown the source from which he claimed to have derived it. But this source r'being the will of Johannis Vandeursen, and that having been abandoned, the door was shut against the presumption of any other title. No question as to adverse possession appears to have been submitted to the jury; and had there been, there is no ground to disturb the verdict on that account. The motion for a new trial must, accordingly, be denied. ,
Motion denied.