¶1the president delivered the opinion of this Court, “ that the testator, fames Gardner, in the case agreed mentioned, having died prior to the commencement of the act of assembly concerning wills, the distribution of intestates’ estates, and the duty of executors and administrators, and not being seised of the premises in question, at the date of his will, or at the time of his death, there is no error in the opinion of the district Court in the first member of the bill of exceptions contained; but that the instruction given to the jury, as contained in the second member thereof, was improper, in this, that the facts agreed in the case amounted to a disseisin of the premises at the said periods respectively ; and that the said judgment is erroneous.”
¶2Judgment reversed, the verdict set aside, and the *288cause sent to the Superior Court of law, directed to fee held in Albemarle County, for a new trial to be had therein, on which the said last-mentioned instruction is not to be given.