#### DEN ON DEMISE OF J. C. B. EHRINGHAUS *vs.*MARMADUKE CARTWRIGHT.

A. devised as follows: “ I give to my said son Thomas and my daughter Patsy, who was also born before I married her mother, and is now the wife of Charles Brite, all the remaining part of my land, to be equally divided in fee simple.” *Held,*that, notwithstanding this declaration of illegitimacy, it was competent for those, who claimed as heirs of Patsy, to shew that she was born in lawful wedlock, and that this mistaken description in the will was controlled by the other more certain description, which identified her as the devisee intended.

If she were illegitimate, her brother Thomas, who was a bastard, could not inherit from *her*legitimate daughter.

No part of a description is to be arbitrarily rejected, but every part of it is to be respected; and especially when a person can be found answering the whole description. But when there is no such person, and where the will or other instrument describes the party in several distinct particulars, by some of which that person may be entirely known from all others, then a mistake in some other one of those particulars, will not defeat the disposition.

The cases of *Sawyer*v. *Sawyer,*6 Ired. 407, and *Proctor*v. *Pool,*4 Dev,. 370, cited and approved.

Appeal from the Superior Court of Law of Pasquotank County, at the Fall Term, 1847, his Honor Judge Dice presiding..

*40This was an action of ejectment, in which the following case appeared.

In 1S05, Thomas Cartwright, the elder, devised the premises to his son, John Cartwright in fee, who entered and lived thereon until his death. On the 26th of December, 1832, John, the son, executed his will, and therein, amongst other things, he devised as follows: ‘‘Secondly, I give to my son Thomas, whom I had by my wife before we were married, and who, unfortunately, is a cripple, four acres of land to be laid off in such manner as to include all the buildings I occupy for my residence ; to him and his heirs. Thirdly, I give to my said son Thomas and my daughter Patsy, (who was also born before I married her mother, and is now the wife oí Charles Brite) all the remaining part of my laud, to be equally divided between them, in fee simple.” Shortly afterwards the testator, John, died, and Thomas, the son, and Brite and wife, made partition, and the premises now in controversy were allotted to Mrs. Brite, as her moiety under the will. After entering into possession in severalty, Brite and his wife died, leaving an only child, a daughter, who died an infant, and without issue. After her death, Thomas Cartwright, the younger, claimed the premises as her heir, and the lessor of the plaintiff claims under him. Afterwards, the defendant in this suit, being a brother of the testator, John Cartwright, claimed the premises as the heir of Miss Brite, and took possession ; and then this action was brought, and was tried on not guilty.

On the trial, the defendant offered evidence, that, when John Cartwright was married, his wife had but one child, who was the said Thomas, the younger, and was then about four weeks old ; and that afterwards they had two other children born in wedlock, namely, Sarah, (who died in infancy, and without issue) and then the said Patsy Brite. To the admissibility of the evidence the counsel for the plaintiff objected ; but the Court received it, and *41instructed the jury, that, if they believed it, Thomas Cartwright, the younger, was not the heir of Patsy Brite’s child, and the plaintiff ought not to recover. There was a verdict for the defendant, and judgment; and the plaintiff appealed.

No counsel for the plaintiff.

*A*Moore, for the defendant.

RuffiN, C. J.

In no' aspect of the case, is the plaintiff entitled: whether Mrs. Brite was legitimate, or illegitimate, or whether she took under the will, or by descent from her father, or did not take at all. If she was illegitimate. as the plaintiff contends, then her brother Thomas, who is admitted to be a bastard, cannot inherit from Mrs. Brite’s legitimate daughter, according to the construction given to the 1 Oth rule of descents, by the majority of the Court in *Sawyer*v. *Sawyer,*6 Ired. 407. But, if that were otherwise, the Court is clearly of opinion, that the plaintiff cannot recover, because it was competent for the defendant to shew by witnesses, that Mrs. Brite was born in wedlock, so that, for that reason, her illegitimate brother Thomas, could not be her heir, or her daughter’s. For, the statement in the will, that the daughter Patsy was born before the testator married her mother is but a mistake in a part of the description of a devisee, who is otherwise sufficiently described and fully identified ; and such a mistake does not defeat the gift. Indeed, upon this point, the plaintiff is in a dilemma, and must fail, whether the illegitimacy of Mrs. Brite be, or be not, an essential part of her description. The will does not prove that she was illegitimate. It only describes her to be so. One, who claims to be a devisee, must by evidence *aliunde,*be brought within the description. If that be a material part of this description, then, to entitle Mrs. Brite under the will, the burden was on the plaintiff to bring her *42within the description, by shewing that she was born before the marriage of her parents, just as much as he was obliged to shew that this person was the daughter of the testator’s wife, was named Patsy, and was the wife of Charles Brite. Here, that was not and could not be done ; but, on the contrary, it was established to the satisfaction of the jury, that she was born, not before, but some years after, the marriage of the testator and her mother. Thus, Mrs. Brite did not answer that part of the description ; and, if it were indispensable, that the devisee should come up to every part of the description literally, she could not take under this will, nor her brother Thomas derive title through her. If Patsy did not take under the will, then the testator died intestate, as to that moiety of the land ; and in that event, the son Thomas did not succeed to it, as the heir of the testator, by reason of the illegitimacy of the son.

But, the Court holds, clearly, that Mrs. Brite did take under her father’s will, being sufficiently identified as the person meant. It is true, that no part of a description is to be arbitrarily rejected, but every part of it is to be respected ; and especially when a person can be found, answering the whole description. But when there is no such person, and where the will, or other instrument, describes the party in several distinct particulars, by some of which that person may be certainly known from all others, then a mistake in some other one of those particulars will not defeat the disposition. *Falsa demonstratio non nocet,*is an ancient maxim applicable to such cases, provided there be enough to make the person certain before that was added, and to leave the person certain after rejecting the mistaken reference. That is the established rule of construction, in respect either of the designation of persons, or the description of things; and extrinsic evidence is necessarily resorted to in order to apply the designation or description to the persons claiming, or the things claimed. Many of the rules respecting bounda» *43ries are examples of preferring one part of the description, turning out to be true, to another part turning out to be untrue. The case of *Proctor*v. *Pool,*4 Dev. 370, is an instance of the application of the rule to a general description of the thing devised — the Court holding that the effect of the true description was not to be weakened by a further and unnecessary false description. The case of *Standen*v. *Standen,*2 Ves. Jr. 589, applied it to persons, and is a precedent perfectly apposite to the case in hand. There, the testator gave pecuniary legacies, and a moiety of his real estates, and of the residue of his personalty to *“*C. M. Standen, and C. E. Standen, *legitimate*son and daughter of Charles Standen.” Those persons •were in fact illegitimate. Yet it was held, that the wrong' description, in calling them legitimate, did not defeat the' gifts to them *nomination;*because their identity was sufficiently established by their names, according to Lord Bacon’s rule, that *verítas nominis tollit errorem demonstra-tionis.*Here, the daughter is e *converso*described as illegitimate, when she was legitimate, and the case falls directly within the principle. That false demonstration cannot hnrt; because there is no one to fill it, and because this person is further and sufficiently designated truly as being the daughter of the testator and his wifer and by her name of Patsy and her state as the wife of a man named Charles Brite. Those circumstances concurring. make it absolutely certain, what person was intended by the testator, and uphold the devise. The' daughter therefore, took under the will, and being legitimate, and her brother illegitimate, he could not inherit from her, nor trace a right to inherit through her.

Per Curiam, ■Judgment affirmed;-