Harvey v. . Harvey .

Settle, J. We have had some difficulty in overcoming the objection, that the devises of land to Thomas and Franklin Harvey are so vague and uncertain as to be incapable of location. No metes and bounds, or other description of the land is given, save only that Thomas’ tract is to include the house where the testator resided, and Franklin’s is to include the house where he (Franklin) resided at the death of the testator. Upon consideration, however, we have concluded that it was competent for the Court, by the intervention of commissioners, to render that certain which was before uncertain, and thus effectuate the intention of the testator. We think that those who claim under the 2d and 3rd items of the will, may be regarded as tenants in common with those who claim under the 4th item, and that the Court may call to its aid commissioners to make partition of the lauds of the testator. *574 Assuming, then, that the Court has power to decree partition, have any grounds been shown why the report of the commissioners should not be confirmed? The only objection we hear to the confirmation of the report, is that the commissioners have allotted to the share of Franklin Harvey 250 acres out of the 705 acre tract. We have the fact established that “ the testator regarded his two tracts as one plantation.” The 6S acre tract lay nearer to that portion of the land upon which Franklin Harvey resided, than it did to the other lands, and of course the commissioners, who viewed the premises, took into consideration all the circumstances, woodland, cleared land, rich land, poor land — in fact everything that went to make up its value, and their report should be confirmed unless something improper appears upon its face or is shown by extrinsic proof. There is nothing wrong appearing upon the face of the report, for this Court has repeatedly held that in a will, two tracts of land, as much as half a mile apart, cultivated by the testator as one farm, will pass under the description of “ my plantation.” Howe, v. Davis, 20 Ired., 431; Bradshaw v. Ellis, 2 Dev. and Bat. Eq. 20. There is no suggestion of fraud or misconduct on the part of the commissioners, and the case for this Court states that no evidence was offered to sustain the exception of the defendant. The judgment of the Superior Court is affirmed. Let this be certified, &c. Fek CuRiam. Judgment affirmed.