186

N. C. R. R. Co., Benbow v. 421 Smith Dan'l, State v.

ARGUED AND DETERMINED IN THE

Supreme Court of North Carolina,

AT RALEIGH.

JUNE TERM, 1866.

Doe on the demise of WILLIAM H. BRANCH and others v. JAMES HUNTER and wife.

Where a testator devised, to A, his "plantation between Burnt coat and Beaver-
dam swamp," to B, "all that portion of his Enfield tract of land lying north
of the old road from Old Enfield to Halifax town,” to others, "all the balance
of his property, after paying debts," and afterwards cancelled the devise to
A: Held, that although the description of the land given to B, would, per se,
include that given to A, yet, inasmuch as when first written, the testator did
not use it in this large sense, such sense could not be imposed upon it by the
mere cancellation of the devise to A: held also, that the legal effect of such
cancellation was to throw the land given to A, into the residue.
Evidence, to show that a tract of land of a particular description, in a will, in-
cludes another tract having another description in such will, is competent.
(The case President and Directors, &c., v. Norwood, Bus. Eq., 65, cited and ap-
proved.)

EJECTMENT, tried before Saunders, J., at Fall Term, 1864 of Halifax Superior Court.

The plaintiff claimed title under the will of John Branch, deceased; the tract in question being that described in the second clause, as follows: "Then I give to my daughter, Martha E. Bradford, the following negroes, viz., &c., also my plantation between Burnt coat and Beaverdam swamp." The words in italics were afterwards erased, and cancelled

Branch v. Hunter.

by the testator, who made a memorandum thereof, at the foot of the will, in his own handwriting. Upon the probate of the will the cancelled words were rejected by the court as part of the will, and the rest admitted to probate.

The defendant claimed title to the land, under the following clause of the same will: "Then I give to my executors, in trust for the benefit of my daughter, Sally Hunter, &c., all that portion of my Enfield tract of land lying north of the old road leading from Old Enfield to Halifax town, together with," &c.; and offered evidence tending to show that the Enfield tract of land embraced the land in controversy. This evidence was objected to by the plaintiff, and rejected by the court.

The court charged the jury that, although the clause devising to the executors in trust, &c., might have included the land in controversy, if there had been in the will, as originally written, no clause devising it to Mrs. Bradford, yet, that inasmuch as the land was not devised to the trustees before the cancellation, the will could not, after that, operate to convey the land. The defendant excepted. Verdict and judgment for the plaintiff. Appeal by the defendant.

Bragg and Batchelor, for the plaintiff.

Moore and Conigland, for the defendants.

PEARSON, C. J. His Honor erred in rejecting the evidence tending to show that the Enfield tract of land embraced the land in controversy; see Institution for the Deaf, &c., v. Norwood, Bus. Eq., 65.

For this reason, in considering the other question, it is to be assumed that the land in controversy was considered and treated by the testator, in his life time, as a part of the Enfield tract of land.

We have then this case: The testator devises a part of