Where a mail devises a null to one of his sons, and an entry of 3! and to‘ another, including' the land usedíbr a pond, the latter passes by the devise of tUe mill.
THIS was a Petition^ under the Act of Assembly, to recover damages on account of forty-six acres of land, claimed by the Petitioner, as being overflowed by the pond of the Defendant’s mill. The Defendant pleaded Libe-rum Tenem'cntum ; and in support of his plea, produced the will of Christopher Woodward, father of the Defendant, under whom the Defendant claims, as follows, viz.
“ I give to Pleasant Woodward, my son, my mill and plantation whereon I now live, also three cows and calves or yearlings, to him and his heirs forever, also my riding-horse and saddle forever.”
The Petitioner claimed under the following clause of the same will:
*101 a I give to my son Richard Woodward one hundred acres of land, including the Dutchman’s field, also one entry of land containing three hundred and forty acres, including ^the old field which lieth on the South Prong of Middle Creek, also one bed and furniture, also ten pounds worth in cattle, also ten pounds in specie, to him and his heirs forever.”
The forty-sis acres are now included in the pond of the mill devised by the first-mentioned clause of the said will ; and are in-luded in the entry devised by the clause of the said will last mentioned-
The Defendant did not cifer any evidence that the mill-dam was of the same height when the said will was executed, or at the death of the testator : Nor did the Petitioner offer any evidence that the said mill-dam had been raised since efther of these events.
The Jury assessed damages for the Petitioner, subject to the opinion of the Court, on the foregoing statements.
Browne, for the Petitioner.
In a grant, the construction is in favour of the grantee, because words are to be taken most strongly against the person using them. But in a question between two devi-sees, I can see neither reason nor authority for any construction in favour of the one more than the other. If they are entitled to a favorable construction, so are we; but in conflicting claims, there cannot be a construction in favour of both—therefore there shall be none in favour of either, but a strict construction.
By the grant of a house or land, even cum pertinentiis, another house or land does not pass, unless it be parcel.*
Every where it passes as incident; it may be accepted if only convenient, and not necessary to the enjoyment.† And this is in conformity with the ancient and well esta*102blished maxim of law.—Expression semper facit cepere ta? 'itum. e q. Feoffment by the words dedi concessi, in-plies a' general warranty; but if a special warranty is included m the deed, that rebuts the implication of a general warranty. So here, although the mill-pond might have been implied in the devise to the Defendant, yet part of it being given to the Petitioner in express terms, the implication ceases. , Without the forty-six acres, the Defendant would have the mill, as nine-tenths of the mills in the country are held, and as this very mill had been held It would be a strange construction, to take from the Petitioner what is expressly given to him—an entry of 340 acres, and give it by implication to the heir.
R. Williams ¡ for the Defendant.
No principle is better established in the construction of wills, than that the intention of the testator shall prevail. ’J'he rules by which this construction is ascertained, are reduced to no form of words, but depend upon the nature, of the thing devised, and sometimes upon circumstances relative to the testator himself. In the case before the Court, the subject of the devise will carry conviction to $he mind as to vyhat was the intention of the testator, V i give to. my son Pleasant Woodward (the Defendant)' jny mill and plantation -whereon 1 now livef is to be understood from wprds used in common parlance, a devise of not only the mill house, but also that quantity of land, which before that time was covered by the waters of the mill-pond, if this construction did not take effect, the mill would, in a high degree, be useless, and prevent the bounty of the testator, which extended equally to this Defendant as to his other son Richard, under whom the Plaintiff and Petitioner now claims.*
Per Curiam.
We are all satisfied, that the devise of the mill-pond is implied in the devise of the mill, certainly as between *103the two brothers, the devisees; and that the devise of the entry of land, must be taken subject to the incumbrance 6f leaving the forty-six acres for the purpose of a pond.
Judgment for the Defendant.