This was an action brought to the superior court, for the county of New London, by Jesse Comstock against Asa Comstock, upon the covenants of a warranty deed of a certain tract of land situated in the town of Montville.

The breach, alleged in the plaintiff’s declaration, was as follows:

“ That, at the time of the date, execution and delivery of said deed, said Asa was not the owner of said premises, as of an estate in fee simple, but had no greater or other estate otherwise than an estate in tail to himself, and the heirs of his body, and had not good right to bargain and sell the same as aforesaid, nor even the same, free of incumbrances, but, on the contrary, under, and by virtue of the last will and testament of Nathaniel Comstock deceased, was charged with the support of one David Comstock, then, and still in life, for the term of his natural life.”

The cause was referred to said superior court, upon the following agreed statement of facts, and by said court was reserved for the advice of this court.

The title of the defendant, to the land embraced in said deed, was derived solely from the last will and testament of his father, Nathaniel Comstock deceased, who, at his death, owned the same in fee.

Said will was duly established by the court of probate for the district in which said land was situated. The parts thereof material to the present case are the following :

“ I give unto my loving wife, Mary Comstock, the use and improvement of all my real estate, during the term she shall remain my widow, but should she marry again, I then give her the improvement of one-third of said real estate during her natural life.

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“I give unto my son, Asa Comstock, after the term given my wife shall expire, all my real estate, not otherwise disposed of in this will, together with the stock and farming tools, after the decease of his mother, and should he not leave heirs of his body, then said real estate after his decease, to go to my heirs-at-law.

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“ I give unto my son, David, one good feather bed, one bolster, and two pillows, two good coverlids, two thick blankets, two pair of flannel blankets, two pair of sheets, two pair of pillow-cases, with a good bedstead and cord, all to be kept in good order for his use, and he is to have the use of the bed-room in the north-east corner of my house, to lodge in, and in case of his being sick in cold weather, he is to have his bed in the east'great room, and a comfortable fire—the wood to be supplied by my son Asa, who is to be at the expense of David’s support during David’s life, and the land, given to Asa, is hereby pledged for David’s support; Asa to have the benefit of his labor.”

The land, devised to said Asa, was valued in the inventory of the estate of the testator, at nineteen hundred dollars. The support of said David was worth one hundred and fifty dollars per annum.

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