#### John H. Wilson, *adm’r.*Charles Freer, *and others, ads.*William Robertson.

*Testator by Ms will devised his “plantation on John's Island, containing Jive hundred and forty acres.” He had ■two tracts oj land on John’s Island, one of cleared land ivkich he planted, containing*390 *acres, and at the distance of two or three miles, a tract of pin eland containing*147 acres. *Parol evidence v>as received to shew that the tract of pint land had always been used with, the other and was necessary to it;., that the two tracts had ahoays been considered to form one plantation, and that the testator’s son and heir-at-law had admitted the right of the devisee to both: and these facts were held to establish the intention of testator that both tracts should pasé-under the devise.*

Complainant, William .Robertson, who married one of the daughters of John Freer, deceased, stated in his bill, that the said John Freer by his will, dated 30th November, 1781, gave to his wife a residence for life on his plantation on John’s Island, with liberty to plant it, in common with his children. In case of her death, he directed that his “ said plantation on John’s Island, containing £40 acres, more or less, should be *57sold” and the monies arising therefrom, be bequeathed to his daughters. That he died in November, 1787, and Charles Freer, who was his heir-at-law, qualified on the will as executor. That the testator at the time of his will and death, was possesssed of two parcels of land on John’s Island, viz: — Of 893 acres of arable land, and 147 acres of pine barren, three miles distant from the former. Thathis country seat was called Edinburgh, and was on the 393 acre tract, and the pine barren furnished wood for Edinburgh. That these two were connected in the idea of “the John’s Island plantation” and were *xievev*regarded as two separate estates. That Mrs. Freer, (the widow,) held both for life and they were never divided, but were necessary to each other. That Charles Freer, the heir-at-law, did not possess the pine barren during his life, but often asserted his mothers right to it. That Charles died in 1808, leaving-several children, one of v»hom married defendant, J„ H. Wilson. That the widow of the testator John, died in 1817, and'complainant and the other devisees applied *to*this court for a partition of the Edinburgh tract. That the commissioner recommended a sale, and *complainant*purchased it for *‡*12,500, and the commissioner conveyed the premises to him 22d July, 1820, and on same dajq complainant conveyed them to E. Whaley. That little caution was used in the equity procedings to describe the land accurately, the metes and bounds not being filled up in the petition, fee but merely the number of acres, 540, mentioned; and when complainant afterwards gave the metes to the commissioner, he never consulted a plat or adverted to the fact that the pine and plantingland were two separate tracts. That in selling to Whaley they spoke of the pine and planting land as one plantation, the same that testator had owned and that Mrs. Froer possessed; but by neglect they suffered the conveyance to be drawn so as not to include both, nor to agree with either parcel of land. That the commissioner’s deed mentions 540 acres, but in his metes and bounds only 393 are included, and the pine barren is left out. That complainant is now called upon to compensate Whaley for the 147 acres deficient, for which Whaley has sued him on his warranty. That *58defendants, Wilson and others, (representing Charles Freer) claim 'the said pine land as an indisposed residue of Claries Freer’s estáte. The bill prayed that Whaley might be enjoined from proceeding at law, and that Wilson and others might be compelled to go to trial with him, to settle the title to the tract of pine land, and that the said deed might be reformed according to the testator’s intention, so as to include said land. The defendant Wilson, admitted that he claimed the pine land as the representative of Charles Freer, who was the heir-at-law of John Freer the testator, who left that land undisposed of by his will; the same being a separate piece from Edinburgh, as stated by complainant, and acquired at different times by different titles. That Edinburgh contained 397-?; acres, and the ■pine land not 147 as the bill alledges, but 163 acres, and there are several plantations between them; that the two tracts were never regarded as one, by any of the Freers or by any body else, until very lately by the complainant; as is proved by his .voluntarily sending a short time before the sale of Edinburgh tract, to inform defendant that this very pine land was not devised by John Freer, but had descended to Charles, and he advised defendant to look after it for the benefit of the estate. He . denied that Whaley spoke of purchasing the pine land from the complainant, for he only lately discovered the deficiency io: the number of acres in Edinburgh tract, and had before wished to buy this pine land from this defendant. He admitted that Mrs. Freer might have used it, as other persons did, for it was much trespassed on, but the title never was in her: — that testa-i tor devised to her and his daughters, only his Edinburgh tract,-- and did not mention the pine land, and that no presumption' that he intended it existed, and it could not be raised bj parol testimony. ■ •

He admits that the conveyance by the commissioner by meteá and bounds, excludes the pine tract, but denies there was any mistake in the exclusion, or that it was the intention of any *of' the*parties to include it — that no addition of the pine land can make 540 acres of *chared*land, as advertised by the commisSioner and sold, as appears by his deed; which deed estops *59complainant, and ho ought not by parol to enlarge or contradict it. He states further, that he had lately contracted to sell said pine land, by permission of this court, as the property of C. Freer’s estate.

Whaley in his answer merely says he bought under the public advertisement, and believed the tract contained 540 acres in one body, as stated by said advertisement; and he knew nothing of the pine tract being necessary to make up the difference. He lately had the Edinburgh tract purveyed, and found it to contain only 3974, and complainant offered him the pine tract in dispute, as appendant to the Edinburgh tract; and which he agrees to take, if it belongs to it.

On the part of the complainant evidence was offered, shewing that the pine tract by John Freer’s titles, after allowing for what he sold, contained 147 acres, and that according to Vignol’s plat, Edinburgh contained 390 acres. . Complainant then offered parol testimony to prove that 'the devise in the will included both, which was objected to; but the judge overruled the objection; and the testimony of-James Legare, T.hos. Hunscome and Thomas Legare was then read, id order to prove that Mrs. Freer and Charles Freer regarded the pine land and Edinburgh as one tract, and that she had possession of both.

He adduced Mrs. Fi'eer’s tax returns for 1808, for 500 acres in St. John’s Parish, and also the same in 1816. Hé proved that Charles Freer returned 650 acres. He also adduced-a bill in equity, filed by defendant Wilson, to procure a sale of Charles Freer’s property, which did not mention his land. He also proved a conveyance from Charles Freer in 1809, to Thomas Iiunscome of 600 acres on John’s Island, and 46 acres were sold by Wilson, his administator, (the defendant) as per Vignol’s survey, to Stevens. Mr. James Legare being called, testified that John Freer had no lands to witnesses knowledge, at the time of his will, except’the said two tracts.

Here the case closed, and Messrs. Petigru and King, contended they had proved that the two tracts formed one plantation and were included in the devise. .Mr. Prioleau on the *60'contrary contended that the case was not proved by the testimony o’f the witnesses, and that it was contrary to common sense to infer that two pieces of land, three miles apart, were one plantation: that it was of no consequence what Mrs. Freer, Charles Freer ■and others supposed, for *Mr. John Freer*alone had made the will, and his intention alone was to be proved which was not— that in fact it was not even proved that his widow or Charles Freer even regarded them as one — That Mrs. Freer’s using it, ivas probably as executrix of her husband, or by suiference of lier son, who died many years before her. That if the two tracts had been one plantation, as contended for, the- .family would have known it, and the complainant v/no married a daughter would not have been so ignorant of it as to have pointed it out as undisposed of, and as rorming no part of Edinburgh.

Chancellor *ilaillard.*— Mr. John Freer, by bis will left to bis wife a life estate in his plantation on John’s island, and says “ whenever she shall die or remove off my said plantation, as the case may be, then and in that case, itis my will that my said plantation on John’s island, containing 540. acres, more or less, shall be sold for the most money that can be got for it, and the monies arising from the sale thereof, I give and bequeath to my <laugthcrs, &c.

On the death of Mrs. Freer the plantation-ivas sold, and purchased by the complainants for *$*12,500, who conveyed it i)h the same day to Edward Whaley. The tract on which. Mr. Freer resided was known by the name of Edinburgh, and contained about 390 acres. lie had another tract, a pine land tract, from two to three miles off, which furnished timber for Edinburgh, on which there was scarcely any, and on that account was necessary to it. The pine land and Edinburgh tracts contain together about 537 acres. Whaley’s titles do not embrace the pine land tract, but he is willing to take it. It is now claimed by the representative of Charles Freer, who was. -4he heir at law of the testator, and the question is, docs this -pine land tract pass under the above recited clause of the will? The parol testimony which was objected to, but which is received, shews satisfactorily that the Edinburgh and the pine land *61tracts were always considered as forming one plantation, and so held and enjoyed. On another point, this evidence is also conclusive, that Mr. Charles Freer, the son, always considered the land as his mother’s. 1 think that -when the testator said, “ mv plantation on John’s island,” lie intended the Edinburgh its well as the pine land tract; the latter furnishing the former with timber necessary for it, and both having been always used and enjoyed together and considered as constituting one plantation. The parol evidence is received to shew a fact consistent with the will, not to contradict it; for unless the testator meant by his plantation the pine land tract as well as the Edinburgh, then only 390 acres would pass, instead of 540 the quantity it contained. A plantation may consists of several parcels or tracts of laud not adjoining each other. - Where the word plantation only is used, it may be difficult often to ascertain (if it should consist of several tracts) what quantity of land was intended by the testator; but where, as in the present case, the number of acres is mentioned, the word plantation, may well he deemed sufficient to carry a tract of timber land, necessary io another tract which was cultivated and which had none, and where the two make within three acres,- as appears by a recent survey', .the quantity mentioned in the will. It is ordered and decreed that the commissioner do make titles to Mr. Whaley for the pine land tract,' and on Mr. Whaley’s receiving them, that he be perpetually enjoined from proceeding on his judgment at law against the complainant. The complainant to pay Whaley’s costs; the other parties each to pay their own costs.

Defendant Wilson appealed upon the following grounds:

1st Because parol testimony was inadmissable to explain the devise.

2d. Because if it could he received for that purpose, it ought to be very clear and decisive of testator’s meaning, which was not the case with the testimony adduced.

3d. Because whether Mrs. Freer, her son Charles and others regarded tjie two tracts as one plantation or not, was perfectly immaterial, the question arising solely under the will.

*62*Prioleaii,*for appellants.

If there is any ambiguity in the will, it is not such an one as parol testimony is admissible toes plain. It was merely an error in the quantity of acres 540 in-instead of390. If testator had devised his house having ten rooms, parol evidence could scarcely suffice to shew that he mean* two houses, one having six, and the other four. If testator intends to give one thing, but in fact gives another it cannot be corrected. C*ases temp. Talb.*240, *(Brown vs Selwyn;) 11 Johns.*200; 3 *Taunt.*147,155; *1 Ves. jun.*258, 9; *id.*415.

If such evidence be receivable however, it ought to be extremely clear; posterior circumstances or expressions used by the testator at the time of making Ids will are not admissible. 1 Ves. 475; 2 Ves. & B. 199; 11 Johns. 219; 6 T.R. 671. Some of the witnesses say that the two tracts have been called one plantation; but tills appears to have been of a subsequent date and not to go back to the time of the testator. The opinion of Charles Freer aud his mother of the two tracts forming one, is not made out by the evidence; and if it were, it could not effect the question of the testators intention, and thatalone is to guide. The complainant married a daughter of Charles Freer, yet he advertised the Edinburgh tract distinctly without noticing the other.

*King and Pctigru,*contra.

There is no ambiguity in the case. The testator gives his''plantation containing five hundred and forty acres, and as in' every other case of gift or devise, we must resort to extrinsic evidence, to ascertain to what property the description applies. In England the word plantations means the setting out of trees; here it means a farm or estate. "Where different parcels of land separated by small distances, are- combined and used as one, and contribute differently' to make an entire property or estate, it is certainly not straining terms to call the whole a plantation. 19 *Ves.*505; *Sugd. law of vend.*220. In the case cited from Taunt, it was conceded that the manor of Ashton comprehends parcels of land not adjoining each other. The witnesses prove clearly that the two tracts were always considered one plantation. The opinion of Charles Freer ought to be conclusive on the subject; he was the heir-atv *63law, entitled to the pine tract, if his father had not disposed of it by will, and he never pretended any claim to it, but expressly recognized his mother’s right.

But if there be an ambiguity, it isalatent one, which may be explained by parol. The terms of the will are perfectly clear; the ambiguity is raised by the extrinsic circumstance that no single tract of land is found answering the description— ■a plantation -containing 540 acres; and extrinsic evidence may be resorted to for the purpose of explaining the doubt which is thus raised. John Fr-eer knew what these tracts contained: for the deed to him of the Edinburgh tract describes it as containing 390 acres and deducting from the pine tract, as eonveyed to him, the number of acres he had sold from it, will leave 147 acres. In the cases quoted from *Ca. Temp. Talb.*11 *Johns. and*3 *Taunt,*the parol evidence was not offered to explain an ambiguity, but to make a new will. The rule is that the words of the will being satisfied, parol evidence shall not be admitted to shew that more was intended. *2 Madd.*52. The words of this will cannot be satisfied without giving both' tracts.

Circuit decree affirmed for the reasons therein given.

Chancellors *Bcsaussure GaíMard, Waites*and *James,*concurring.

Chancellor Thompson,

dissenting. — John Freer, by his will bearing date 30th Nov. 1781, gave to his wife a residence on his plantation on John’s island, with liberty to plant thereon in common with,his children. In case of her death he directed the same to be sold, and the monies arising from the sale, he bequeathed to his daughters. Re died in Nov. 1787, and Charles Freer his son qualified as his executor. The testator, at the time of his death, was possessed of two tracts of land on John’s island, one of planting land and another of pine barrens, at the distance of three miles apart. His residence was on his arable land, which was supplied with timber from the pine barren tract. Charles Freer never possessed the pine barren tract in his life-time; he died in 1808, leaving several children, one of whom married John H. Wilson. The widow of John Freer died in 1817, ,and the complainant and other devisees *64applied to the court of equity for a partition of the plantation whereon he resided in his life-time. Upon a reference to tho commissioner, he recommended a sale of the premises, which was accordingly ordered; the land was advertised for sale, and in the advertisement in the hand writing of complainant himself, it was specified that the tract contained 540 acres of cleared land; it was purchased in by him at the price of $ 12,500, and conveyed by him to Edward Whaley. This conveyance includes the planting landssonly, described by metes and bounds, and by a re-survey is found to contain only 393 acres, leaving ;i deficiency of 147 acres. Whaley instituted his action at law upon the covenant of warranty and obtained a verdict, and this suit is brought to enjoin the proceedings and for other relief.

On the trial in the circuit court, a great deal of testimony was introduced to prove that Mrs. Freer and Charles Freer* considered the two tracts as included in one, which the counsel for defendant contended was inadmissible, and I think correctly. Where a fact done, in its nature is equivocal, parol evidence may be given to shew the purpose for which it was done; as in the delivery of the possession of lands, parol evidence inay be given to shew that it was- delivered in the character of a purchaser. Rut the case of a contract of purchase is very different, because in a purchase the precise terms of the contract arc essential to it, and therefore it would be improper to say that the party should be at liberty to enter into parol evidence of the terms of the agreement.

But admitting parol evidence was admissible to prove that Mrs. Freer and Charles Freer regarded the two tracts as one plantation, it was perfectly immaterial, the case arising solely under the will and the deed. It is contended by the counsel for the defendant, that inasmuch as the pine land is useful to the planting land in supptying timber, and had been applied to that purpose by Mrs. F. eer, that it passed under the devise of the plantation. Now I take it that the word “ plantation,*’ although not a technical term, has a-definite meaning, Comprehensible and understood by every person of commotj *65understanding. It means lands used for cultivation, as contra-distinguished from pine land, and a devise of the one will no more pass the other, than a devise of arable land will pass pasture. The law requires that every devise should be specific, this is sufficiently so. As far as this case affects the defendant, Whaley, the will of John Freer has nothing to do with it; his claim is derived from the deed of Robertson to him, which explicitly describes the planting lands by metes and bounds, and he is estopped from averring any thing to the contrary. The decree of the court of equity, the advertisement, the conveyance, all speak of it as one isolated tract. Moreover, Whaley states in his answer,that the tract contained 540 acres, as stated in the public advertisement, and that he knew nothing of the pine tract being necessary to make up the difference; and it would be monstrous to allow complainant to take advantage of his own wrong, by a substitution of worthless pine barrens, in the place of valuable planting lands. It would be in vain to search for a precedent for this case, but I fear it will form one for a thousand others, and inundate this court with litigation. Every person who possesses two or more tracts of land and devises one, must express in his will that he does not mean another.

For the reasons above set forth, l am of opinion that the decree of the circuit court was erroneous