Thompson and wife vs. Wheeler and others, 15 Wend. 340

By the Court, Nelson,!. The principal question involved in the writ of error arises upon the construction of the will • of Z. Wheeler, viz. whether in devising the property in questidn to the'children of his son Joel, he referred to the sons individuaily or collectively, and then to the daughters collectively.

There were four sons and two daughters; the devise is “unto ^*e“’s °f my son Joel Wheeler, deceased, (naming first the sons and then the daughters,) in a proportion of three shares to the sons and one share to the daughters.” If this is to be understood as a devise to the sons collectively, then they take three quarters of the estate, and the two daughters the other quarter; if individually, then each son takes three parts, and each daughter one part. The language may well bear either

interpretation, without much violence to legal or grammatical rules ; and there is some difficulty in ascertaining with positive certainty the exact meaning of the testator. I am inclined to think, however, the latter construction is the soundest, and best supported upon the words of the will. If the testator had in his mind to give three fourths of the property to the four sons, and one fourth to the daughters, it would have been most easy and natural to have expressed such an intent in more direct and unequivocal language.

It is a common and familiar division, and apt words exist to express it; the phrase, “ three quarters tó the sons and one quarter to the daughters,” would have occurred to the most inexperienced draftsman. The words “ proportion”. and “ shares” are inapt and foreign when attempting to express such a distribution of the estate; but well enough, and even appropriate, upon the ratio in the division we have supposed was intended. The court below, therefore, were right in. their Opinion upon the will. They were right also in refusing to submit the question of intent to the jury.

It was a question of law, to be determined by the court from an examination of the language of the will. The verdict of the jury was erroneous; it should have been for the plaintiffs. On the plea of non tenent insimul, the only question of fact for the, jury was, whether the defendants held the premises together, or in common and undivided with the plaintiffs; if they did, the plea was falsified, and failed.

Although the interest of the parties may not be correctly described in the petition, it is competent for the court, in which the trial is had, to amend the record and give judgment, that partition be made according to the respective rights of the parties. 2 R. S. 320, §,19. id. 331, §, 23. This was so decided in Ferris v. Smith, 17 Johns. R. 221, under the old law, and the revised statutes are more particular and explicit on the point. Without the aid of the statute, the verdict would no doubt be correct. Allinant on Part. 75, 77. 17 Vesey, 552. Still we cannot reverse the judgment.

The decision of the court was correct upon the law in every instance excepted to. The remedy in case of a verdict against law and evidence, is by an application to set it aside for that reason—not by writ of error. The counsel for the plaintiffs should have asked the court to instruct the jury upon the manner of the finding of the verdict, and then had the court erred, the point would have been reviewed on bill of exceptions. Here no direction was asked.for or given. The error lies wholly with the jury.