The opinion of the court was delivered by

I think thex’e can be no doubt of the right to recover. The wife of the defendant was seised of an estate in fee simple, under her fathers will, and the release was altogether unnecessary, nor could it affect ber light. The will ordered a division of the testator’s land, and pointed out the mode of dividing it. So that whenever the division was made, each child held his part in severalty by vittue of the will. Indeed the defendant’s counsel does not deny that the wife-was seised of an estate in fee, independently of the deed of release, but he relies on what he supposes to be a warranty in the deed, by which, he contends, thé plaintiffs are estopped from claiming this land. But without deciding whether there be.a warranty'or not, there is an objection which lies at the root of the deed, and vitiates every part of it. It was drawn so erroneously by Webb, the executor, who thought it was his duty to draw it in that manner, without instructions ; and was executed under so total a misapprehension of its import, that a Court of Chancery would have no hesitation in set*179ting it aside. The releasors received no consideration from Peleg Leek, and the operation of the deed was inconsistent with its declared intent, viz: carrying into effect the will of James Cowley.

There was another point made by the defendant’s counsel. He contended, that the defendant had paid some of the testator’s debts, for which this land would have been liable, and therefore, the plaintiffs could not recover till he was reimbursed for these payments. But it was by no means clearly proved, that the defendant ■ paid debts equal to the amount of personal property of the testator’s estate, which came to his hands in right of his wifej nor was there any evidence that he had made any demand of the plaintiffs for reimbursement previous to the bringing of .this suit. The plaintiffs have a legal right to the land, and if the defendant has any claim against them, for money paid on account of the testators estate, he may haye his action against them. . I ani of opinion,' that there is no error in the record, and therefore, the judgment-should be affirmed.

.Judgment affirmed,