1811. sees V. named; since, before the act of 1792, slaves were real OCTOBER, Ball's deri Bull's exeeu; widow. tors and Williams, contra. The parties, in using the words " hereditaments,” and “estate of inheritance,” showed, by the deed itself, that they meant to exclude the idea of personal property. Wallace v. Taliaferro, 2 Cull, The act vol . 1785, ch. 61. vised Code, 164. 'ch. 92 (c) Judge Fleming's opinion 18+ pol. p. dech. 27. let's sees tors and widow. OCTOBER, The word “ thirds” ought to be understood in the 1811. common or popular sense. By that word the parties Ball's devi- undoubtedly meant all the wife's interest, by way of dower, in the property. Ball's execu Monday, February 22d, 1813, the President delivered the Court's opinion, o that there is no error in the said decree, except in the dismission of the bill, as to the appellee, before an account of distribution of the personal estate of William Ball, deceased, other than the slaves, one third of which had been allotted to the appellee, in a manner satisfactory to all parties, pursuan to the decree of the county Court of Frederick. There fore, it was decreed and ordered, that so much of the said decree as is mentioned above to be erroneous, be reversed, &c., that the residue thereof be affirmed, and that the appellants pay to the appellee, being the party substantially prevailing, her costs, by her, about her defence in this behalf, expended. And it is ordered, that the cause be remanded to the said Court of Chancery, for an account and distribution to be made of the residue of the personal estate amongst all parties interested therein." 1. A testator who died dent del or in the the act of Fll, as : of the could not de r than to the , pursuai Ther . uch of ¢ Toneous Firmed, the out her: dered Chance of these Wednesday, Davis and wise against Martin. Nov. 11th, 1812. THIS appeal was from a judgment of the district Court of Charlottesville, according to a verdict, in favour of vefore the i st of , John Martin, the tenant, at the suit of Staige Davis, and 1787, (woen Elizabeth his wife, demandants in a writ of right. 1785, ch. 61., On the trial of the cause, and before the rendition of took, effect,) the verdict, it was agreed by the parties, that James vise a tract of land, of which Gardner, claiming title to the land in the count and plea he was actu ally tisseis. mentioned, (by a conveyance from Parmenus Booker, ed, when he made his will, bearing date the first day of December, 1740; Booker and at the claiming the same by a patent issued to him the 20th time of his death. day of June, 1733, on a survey made for his father, a See Hyer Shobe, 2 Ralph Booker, the 28th of August, 1718,) entered upon, Munf 200 201, and and took possession of the said land, prior to the year Taylor, er dem Atkins, 1752, and remained possessed thereof, by actual cultiva- " "Herdere tion and occupancy, until about the year 1767, when he 110, 111, 112; , , removed his overseer and hands from said land, and 113., as to the distinction berented the same, for that and several succeeding years, tweeu an 16 dissezto one Faulkner and others; that the said James Garda sin and a disner, being then aged, and confined to his house, which elect on of the was upwards of ninety miles from the land, trusted the person injursame to the possession of his tenants aforesaid ; that, about the year 1769, one Lewis Craig entered upon and tenant of the freehold, and took possesion of said land, claiming the same as his B. tortiously by a conveyance from Hugh Sanders, by deed of bar- and turn the gain and sale, dated the 14th day of November, 1766; A. ou of posand contending that the survey made for Hugh Sanders, session, claim ing the land the 27th of February, 1727, and the patent which issued as his abso lute proper. to him on the 28th day of September, 1728, compre- ty; and he, or those claiming hended this land ; that the said Lewis Craig remained under him, continue in the actual adverse possession of said land, claiming hold the same, the same as his, from the year 1769, until the 6th day by actual adverse pos. of August, 1779, when he, by deed of bargain and sale, session, until the death of A., this is an actual disseisin of A.; so that (in such a case, before the 1st of January, 1787) he could not, for the purpose of being enabled to devise the land, elect to consider himself as not disseised. See 1 Burr. 112. tual intere seisin at the ed. 2. If A. be 1811. OcT9ler, conveyed to the tenant,'John Martin, that part of said land now held by him, and put him in possession there. Davis and wife. of; and that he has ever since held possession there of, claiming the same as his; that, about the year 1721, Martin. Ralph Booker took possession of, and settled some ser- On this agreement of facts, the tenant, by his counsel,, . ed, 1st, That if the testator, James Gardner, had held this land by title superior to that under which the tenant holds, and had even been disseised thereof, that he could devise the same, and did devise the same, by the said last will, to Anthony Gardner; 2dly, That, from the facts admitted, the said James Gardner was not disseised of said lands, and therefore could devise the same; and that, he having done so, the demandants ought not to recover the said land, the right thereto being now out of them; and moved the Court to instruct the jury to that effect. The Court was of opinion, and did instruct the jury, " that if the testator, when he made his will, and at 1811. the time of his death, was actually disseised of the October, Martin. Το which opinion of the Court the demandants excepted. Wickham, for the appellants. Botts, for the appellee. Tuesday, March 16th, 1813, the president delivered Judgment reversed, the verdict set aside, and the |