(after stating the devise,- and the running of the division line in 1800.) — At the time this line was established, Robert’s children were infants j'but after his death, and subsequent to their attaining full age, they recognised it as- being the division *98line ascertaining the land devised to them in remainder. They have never, in any way, called it into question, for the present litigation, which seeks to abrogate it, was originated by one claiming title under John Tate to the purpart assigned to him. The point presented for determination is, whether Robert’s children were bound by this division lino, ascertained and acknowledged by their father and uncle, and remaining unimpeaclied for forty years ? If so, it is conceded to bo obligatory on John Tate and all claiming under him.
"When this case was here before, (4 Watts & Serg. 221,) it was decided simply, on the ground that the act of the tenant for life could not bind those in remainder, without their assent, which could not be given by Robert’s children, who were minors, and consequently, there being no mutuality of obligation, the agreement establishing the division line ceased to have any binding effect upon John, or those deriving title from him, after the death of Robert. This conclusion was arrived at without adverting to the terms of the devise, to which the attention of the court was not called by the counsel on either side. The question has upon this occasion been presented in a new aspect, so far as the principle upon which it is to be decided is involved; and this relieves us from the necessity of inquiring into the errors assigned in the charge of the court below'.
The will of the testator furnishes incontestable evidence that, when penning the devise under consideration, he had in contemplation an immediate partition of the land. It is perfectly’manifest, from the terms used and the directions given, he did not intend that his sons John and Robert should continue to occupy the estate as tenants in common, during the life of Robert. The language of the devise conclusively repels such an idea. The son Robert was to have that part of the plantation whereon the testator lived, to contain one hundred and seventy acres; and John was to possess and enjoy the residue. Each of the devisees was to occupy in severalty, and that portion of the land to bo enjoyed by Robert was specifically pointed out. Not only was the number of acres named, but the sije of the plantation on which they lie. It is true, the will contains no express direction that a line of division shall be ascertained and established, but as this was essentially necessary to carry out the obvious intention of the testator, looking to a severalty of possession and enjoyment, it is not to be doubted he regarded the making of such demarcation as the inevitable consequence of the directions he gave. Nor can it bo supposed, from *99the very nature of the subject, that the line to be marked' between the first takers was intended as temporary or ambulatory. As already remarked, the land, at the date of the devise, was to a great extent unimproved. Both the sons of the testator were, at the time of his death, young men, and,"in the ordinary course of nature, might be expected to live for many years. To give value to the respective portions of the plantation divided between the devisees, it was necessary 'the ground should be cleared and improved by an application of their money and labour. But were they to do this in utter uncertainty of the boundary of their respective possessions, or was that boundary liable to be shifted, after the lapse of years, and thus the toil and expenditure of one of the devisees made to enure to the benefit of the other? That the testator so intended, cannot, I think, be for a moment pretended. That he did entertain an intent as to an actual division of the land between his sons, is perceived upon the simple suggestion of it; that he contemplated such a division between them, subject to be set aside upon the accession of the remainder-man, involves consequences productive of such possible injustice, that it is not to be attributed.to a father providing for the future welfare of his children. . We are, therefore, of opinion the consentable line run by Robert and John, ascertaining a division of the land, in pursuance of the terms of the devise, was run and established with tho sanction and under tho authority of the will, and is, therefore, binding upon all parties claiming under it — more especially after the lapse of time which has had place here, during which all the persons in interest acquiesced. Had tho testator expressly directed a dividing line to be marked after his death, no controversy could have arisen; but the implication that he so intended is so clear, as, in my judgment, to admit of no hesitancy. Nor does the case fall within the operation of the rule, volwit sed non dixit, for a necessary implication is to be accepted for as strong an indication of a testator’s will as an express direction.
This view covers the whole case, and decides it in favour of the defendants in error. It renders it unnecessary to notice the several bills of exception taken to the ruling of the court below on questions of evidence, with the exception of the first bill, further than to remark that if they were oven erroneous, it would furnish no ground for a reversal of this judgment, as the error inflicted no injury on the plaintiff. The evidence mentioned in the first bill of exceptions was rightly received.
Judgment affirmed.