#### George A. Otis *et al. versus*Henry B. Smith.

Land cannot pass in a deed, under the word *“*appurtenances,” as appurtenant to other land. But in a will, land may pass under the word ct appurtenances,” in order to give effect to the testator’s intention A. testator devised his three houses in State street, “ with all their appurtenances,” to certain devisees. One of these houses was his mansion house, and had a yard and stable connected with it. Beyond the stable, at the end furthest from the house, was a small piece of land about thirteen feet square, with a two-story building on it adjoining the stable. The only stairs leading from the first to the second story of this building went into the stable, and into a small chamber in the second story of the stable. This building opened into a different street from the front of the mansion house and had no passage into the yard of the mansion house; hut it had no well nor privy, and but a very small yard. This tenement was bought by the testator as one estate with the mansion house, but he had built the chamber in the stable for its accommodation; and during the thirty years before his death, had let the small tenement with the chamber in the stable to divers tenants, none of whom had any privilege in the yard of the mansion house. It was *held,*that the small piece of land with the building on it did not pass by the devise; but that the chamber in the stable did pass, because it could not reasonably be supposed that the testator intended to sever that from the rest of the stable.

This was a writ of entry, in which the demandants claimed two undivided third parts of a small piece of land in Devon-*298shire street, in Boston, with a building on it, and also of a chamber in a stable adjoining the land. The demandants counted on a devise of the demanded premises made by Abiel Smith to Barney Smith for life, remainder .in fee to the demandants and the tenant, into which the tenant had intruded on the death of the tenant for life and kept the demandants out.

The case was tried before *Wilde*J.

The words in Abiel Smith’s will, relating to the case, are as follows : “ I give to my brother Barney Smith the use and improvement of my three houses situated on the south side of State street, in Boston, for his life, with all their appurtenances, to be equally divided between his three children by my late wife’s sister Anna, after his decease, in fee forever.” “All the residue of my estate I give to my brother Barney Smith.” It was admitted that the demandants were entitled to two thirds of whatever passed by the specific devise, Barney Smith being dead.

The demandants proved that one of these houses, being the testator’s mansion house, was situated at the corner of State street and Devonshire street, fronting on State street 'and bounded easternly on Devonshire street ; that this estate, besides the dwellinghouse, comprised a yard back of it, with a stable at the southerly end of it. The land demanded in this action lies south of the stable, and is sixteen feet wide on Devonshire street, and runs back twelve feet, and is thirteen feet wide in the rear. This land has on it a brick tenement two stories high, adjoining the south end of the stable, and the westerly wall of the tenement is a continuation of the wall of the stable. Stairs run from the lower room of the tenement, into the second story, projecting into the stable and winding up therein. These stairs are the only mode of access to the chamber over the lower room, and also to the chamber made in the second story of the stable. The space under this chamber is a part of the stable, the chamber having been constructed by the testator’s order about thirty years before the trial. Before that time the second story had been used by him for keeping hay.

It was proved that there was no well nor privy appurtenant to the demanded tenement, no cellar, and no yard except a triangular space four feet wide on Devonshire street, and twelve *299eet long on the southerly side of the tenement. To prove that the tenement and the chamber in the second story of the stable and the small yard south of the tenement, were appurtenant to and devised with the mansion house, the deed under which the testator claimed was produced, which conveyed to him the mansion house with the yard, stable, and the land demanded, as one estate, it being described as “ a certain piece of land with the buildings thereon standing.”

The tenant offered parol evidence, though objected to by the demandants, which proved that the demanded tenement and the chamber in the stable, were not occupied by the testator or his servants, but that they had been let by him to successive tenants, from about the year 1794, until his decease in 1815, and that the tenants paid rent for the tenement and stable chamber, and that they had no privilege in the well or yard of the testator’s mansion house, and were not allowed to come thereto ; and that the only entrance into the tenement was from Devonshire street or the small yard adjoining it on the south side.

Upon this evidence the parties took the case from the jury, and it was submitted to the Court. The demandants were to become nonsuit, or the tenant to be defaulted, according to the opinion o'f the Court.

*Sullivan,*for the demandant***»

contended that parol evidence 1 ***» was not admissible to show how the land in controversy had been used, because it would be evidence to put a construction on the will. *Bengough*v. *Walker,*15 Ves. 514. The tenement claimed had not the usual accommodations of a house ; it ’was a part of the same estate as the mansion house, and was conveyed to the testator as such. The will gives the house with all its appurtenances ; under these words the land in question passed, for the testator surely did not intend to sever this small tenement from the rest of the estate. But even if he did, the residuary clause, having no words of inheritance, conveyed only an estate for life to Barney Smith. He cited *Doe*v. *Collins,*2 T. R. 498 ; Thomas’s Coke Lit. 215 ; *Down*v. *Down,*1 J. B. Moore, 88 ; *Jackson*v. *White,*8 Johns. R. 47 ; *Goodtitle*v. *Southern,*1 Maule & Selw. 299 ; *Jackson*v. *Moyer,*13 Johns. R. 531 ; *Jackson*v. *Sill,*11 Johns. R. *300201 ; 6 Cruise, 188 ; *Downe*v. *Downe,*7 Taunt. 343 ; 1 Roberts on Wills, 457.

*Fletcher, contra.*

The parol evidence was properly admitted to show whether the premises in controversy were parcel of the tenements devised, or not. *Doe*v. *Burt,*1 T. R. 704. The estate in controversy was not appurtenant to the mansion house ; it was not occupied with it; it was a separate house *Atkyns*v. Clare, 1 Vent. 407 ; Co. Lit. 121 *b,*122 *a ; Nicholas*v. Chamberlain, Cro. Jac. 121 ; *Buck*v. *Nurton,*1 Bos. & Pul. 53 ; *Smith*v. *Martin,*2 Wms’s Saund. 400, note 2 ; *Leonard*v. *White,*7 Mass. R. 8 ; *Doane v. Broad Street Association,*6 Mass. R. 332 ; *Grant*v. *Chase,*17 Mass. R. 447 ; Com. Dig. *Grant, E*9, *E*11; *Archer*v *Bennett,*1 Lev. 131 ; *Kerslake*v. *White,*2 Stark. R. 508.

Parker C. J.

delivered the opinion of the Court. In the , strict legal sense of the word *appurtenances,*a fee in land wii! not pass, for land cannot be appurtenant to land.1 A right of way or other easement would pass in a deed, as well as in a will. In the construction of wills, however, a greater latitude has been given to the word *appurtenances,*according to the supposed intention of the testator in using that word. But this intention is gathered either from other parts of the will, from which it may be inferred that the word *appurtenances*was not used in a technical sense, or from extrinsic evidence show7ing the use aud occupation of the land or tenement not particularly devised, as a part of or connected with the principal subject of the devise. Thus, in some of the cases cited, we find that a devise of a house or messuage with the appurtenances, has been held to carry a garden, stable, orchard, and even a large parcel of plough land ; but this is upon evidence that these several subjects were used by the testator, in his lifetime, as part of the establishment of the house or messuage devised. As in the case of *Jackson*v. *White,*8 Johns. R. 47. So in the case of *Doe*v. *Collins,*2 T. R. 498, a coal-pen, separate from the house and at some distance from it, was held to pass under a devise of the house, because it appeared in evidence tnat it was used partly as an accommodation to the house to *301keep coal in ; although the principal use of it was to contain coal for the testator’s business carried on at a distance from his house. There are many cases of this kind, some of which were cited in the argument.

On the other hand, there are cases deciding that buildings, cellars, shops, &c. though within what may be called the curtilage of a dwellinghouse, do not pass under the general word *appurtenances.*Such is that of *Doe*v. Burt, 1 T. R. 704, which, though a case of a demise and not of a will, was decided by the same rule of construction, viz. the intent of the testator. And that intent is proved by the fact of occupation or non-occupation, as parcel of the principal thing devised ; 2 Wms’s Saund. 400, note 2 ; and the annotator concludes his summary of authorities, by saying, that unless it clearly appears that the testator meant to extend the word “ appurtenances ” beyond its techical sense, lands usually occupied with a house will not pass under a devise of a messuage *with the appurtenances.*

Now it does clearly appear, that the testator intended that the out-houses, stable, &c. should pass under the general term *appurtenances ;*that is, we have a right to infer such intent from the use made of them by the testator himself, as parcel of his mansion house. But with respect to the land to the southward of the stable, covered by a tenement, which has been in the occupation of tenants ever since it was erected, no such intention can be found in the will. Then we must look into the evidence in regard to the occupation ; and that is all on one side and wholly uncontradicted. It is, that from the time of the first occupation of the mansion house to the death of the testator, this has been used as a separate and distinct estate, being let to tenants who had no connexion with the testator’s family, and no privilege in any part of the curtilage of the mansion house. Had it been occupied for the whole or even part of the time by the testator’s servants, taking their wages in the rent, or without paying any rent, the case would be different ; but treating it as the testator did in his lifetime for more than thirty years, we can see no more reason for supposing that this land and tenement passed by the specific devise of the house and appurtenances, than that the adjoining *302house on State street should so. pass ; the difference being only 9*e s^ze and value of the buildings.

We think therefore, that the demandants cannot recover the land described in the writ, it being, as we suppose, without the exterior lines of the stable.

But in regard to the barn chamber, we think differently, because the testator undoubtedly meant that the stable should pass, and we cannot suppose that he intended to separate the two parcels, devising the land with the lower story of the stable, and leaving the chamber, with nothing for it to stand upon, to his.residuary devisee. We know that ejectment will lie foi a room or a chamber without any land, but we are ascertaining the intent of a testator, and we must suppose that intent to have been reasonable. Now this barn was built for the accommoda tion of the owner of the house. It was used by him as parcel of his messuage or dwellinghouse. It is true he had long ago converted the barn chamber into a room for the enlargement of the small tenement, but we may well suppose that that was intended to be a temporary use of it. The mere occupation byr a tenant does not of itself take it out of the devise. If it did, then if a man should devise a house, one room of which was occupied by a tenant for an office or a shop, it must be held that such room would not pass ; which we think cannot be maintained. It is the intention which is to determine. The occupation of a separate tenement by a tenant, might well show that a testator, in devising his house, did not intend that that tenement should pass under the word *appurtenances;*but a room, actually parcel of the house, could not be intended to be reserved, though always occupied by tenants.

We think therefore the tenant must be defaulted, and that judgment must be rendered for the plaintiffs to recover two thirds of the chamber over the first story of the stable.

1

 See *United States*v. Harris, 1 Sumner, 37; 4 Kent’s Comm. (3d ed.) 467 *Bacon*v. *Bowdoin*22 Pick. 401.