At the trial of this case, two exceptions were taken to the rulings of the court, neither of which, in our opinion, can be sustained.
The first exception is to the construction given by the court to a deed from the plaintiff to one Ralph Rice, under whom the defendant claims title to an undivided moiety of the locus in quo. By that deed, the plaintiff released to Ralph Rice, who was the administrator on the estate of George Rice, the plaintiff’s father, all his right or title whatever in and unto “ said estate.” The court ruled, that by this deed Rice acquired no title to the real estate of George Hunting; and we think that this ruling is conformable to the true construction of that deed.
It is true, the word “ estate ” may include real as well as personal; but the question is, whether such was the intention *149of the parties, and we think there is nothing in the language of the release, from which any such intention can be inferred The plaintiff released his right and claim to the estate on which Rice had been appointed administrator, and that was the personal estate only. It was intended, we think, to discharge the administrator from his liability to the plaintiff for his share of the personal estate of the deceased, and it was intended to be a full discharge; and if it had been intended to convey the plaintiff’s share in the real estate, an estate in fee, and not a life estate only, would have been conveyed. Such is the reasonable presumption, and there is nothing in the language of the deed to rebut it.
As to the second exception, the defendant contended, that as he was, at the time of the alleged trespass, in possession of the close described, claiming title as a tenant in common with the plaintiff, this action could not be maintained, although the plaintiff had the sole and exclusive legal title to the estate. But the court ruled, that if the legal title to the estate was in the plaintiff, and he was in possession thereof, he could maintain the action, although the defendant was also in possession thereof claiming title thereto, as a tenant in common with the plaintiff. This ruling was unquestionably correct. For if the title was in the plaintiff, and he had possession, the defendant’s claim and possession were unlawful, and can be no justification of the alleged trespass.
Exceptions overruled.