James Madison Papers

To James Madison from Levi Lincoln, 5 January 1803 (Abstract)

§ From Levi Lincoln

5 January 1803, Washington. Acknowledges JM’s 4 Jan. note with the enclosures. “Wm. Holliday devises to his son Robert, ’1,000 acres of back lands situate about six miles distant Kentucky river, in the North western territory, being so much of a survey of 1,500 acres of soldier’s right surveyed by John Machir on my account.[’]” Nathaniel Massie previously had surveyed for William Holliday “1,000 acres of military warrant lands, on the waters of eagle creek.” John Machir bought, for taxes due in 1800 and 1801, 89 acres, part of a 1,000-acre tract on Eagle Creek in the Northwest Territory entered in William Holliday’s name. Machir also bought for taxes due 59 acres of a 500-acre tract on the same creek. “The question, is, was Holliday intitled to the 1,000 acres, by the devise in his father’s will? The principle of construing wills, is to give such a one, as to give effect to it, & execute the intent of the testator, if it can be done consistent with the rules of law.”

“The devise, in question, must either be void, or vest a title to a 1,000 acres in R Holliday the son.” False descriptions added to those which are sufficiently certain do not vitiate a will, and any “latent ambiguity” must be clarified by the use of intrinsic evidence to render the description certain. The above description is sufficient, applying in five particulars to the land in the survey produced. Other particulars of a description may be rejected if the facts disclosed by evidence so require. If the will disposes of the testator’s estate and mentions no other lands in the territory this would verify the presumption that the tract in question is the tract mentioned. If certificates exist from officers where surveys of land near the Kentucky River were entered, if Dearborn decides no military warrants could have been surveyed in the place mentioned, or if knowledgeable persons can testify the deceased owned no land “in such a situation,” Lincoln judges it would be “perfectly safe & proper to grant a patent for the 1,000 [acres] described in the survey, subject to such sales as may have been made of the same for taxes.” Suggests that John Machir when purchasing 89 acres of the 1,000-acre tract may have surveyed the whole to locate his purchase, perhaps causing a confusion of his name with Massie’s. “I have been thus particular, that the party in interest might know what further evidence is nece⟨ssary⟩ if you should judge, that which has been produced insufficient.”

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