
    GENERAL COURT,
    MAY TERM, 1803.
    Berry’s Lessee vs. Berry.
    As to the construction of a will disinheriting the lieir at law.
    A, devised as follows, viz-. “I give and bequeath to S- B. A. all the land I hold or claim right to on the west ride of a small drain that leads from the Duck Pond\ also the land over said drain ljing on Piny Branch, formerly called Pork Hall and Bachelors Delight, lying in Charles county, to him and his heirs lawfully be-f'otten of his body brever.” Hela, that the words “lying in Charles county” constitute part of the description of the last mentioned tracts, and do not limit the operation to the first part of the devise; that the words “£<? him and his heirs* &c, define the estate the devisee is to have in the lands, and are as applicable to the first part of the devise as the last, and S. B. A. took an estate tail in all the lauds devised to him. That “on the W. side of the drain” means all the lauds which lay on the w. oí a meridian N. line extended from the Duck Pond.
    Ejectmeiít for part of a tract of land called Mx, lying in Frince-George’s county. Defence on warrant, and plots returned.
    The plaintiff offered in evidence a grant to William Hutchison, dated the 12th of June 1688, for the land called Mx mentioned in the declaration; and that Thomas Berry, of Samuel, was on the 24th of October 1778, and at the time of his death, seized in fci of the part of the said tract for which this suit is brought. That Humphrey Berry was heir at law oi the said Thomas, and that the said Humphrey died since the act to direct descents passed in 1786, leaving Samuel, John, Trior, Thomas, Benjamin, James Small■ , . ' • » a p l- , • 1 4 
      wood, and Henry Moore Berry, his sons and heirs at law. That the said heirs, ori the 29th of August 1798. executed a lease on the premises, to Henry Moore Berry, the lessor of the plaintiff, for the land for which this suit is brought. That the said Thomas Berry of Samuel, died seized in fee of the land mentioned in the declaration, being part of Mx, lying in Fringe George’s county, and of part of a tract of land called Hull, and of a tract of land called Pork Hall Enlarged, lying in Charles county.
    The defendant offered in evidence the will of the said Thomas Berry of Samuel, dated the 24th of October 1778, wherein are contained the following devises, viz. “Imprimis. I hereby order and direct that all my legal debts be paid and satisfied, &c. Item. I give and bequeath unto my well beloved aunt E. B. one crop hogshead of tobacco. I give and bequeath unto my well beloved aunt, «tere Berry, during her natural life, or until Iter marriage, 40 acres of land, to he laid out where she now dwells. Item. I give and bequeath'unto my well beloved cousin, John Berry, son of Humphrey, a bay horse, &c. Item. I give and bequeath unió Amt Conner, wife of Richard, during her natural life, or until marriage, the dwelling house she is now about building, and ground enough round the same for a. garden and cotton patch, and to Stave liberty of getting fire wood on'the upper part of the laud without committing waste. Item. fPheieas I have agreed to rent a certain H illiam Smallwood of John, the upper part of my plantation, I hold in Prince-George’s county, for the quantity of 950Í6. crop tobacco, clear of cask; it is my will that he shall have the said place, conditionally he behaves himself as a tenant ought to do; he is not to make use of anymore land than what lies above the place where Ann Conner now has a cotton patch, except it be fire-wood and rail timber, which he must get in the swamp, ¿accept when prevented by bad weather. The lower part of the plantation I mean to have reserved for the use and support of the planta tion where I now dwell. Mem, It is my will that Charles Innis shall have 100 acres of land laid off where he now dwelleth, and to remain on it as a tenant upon the same terms he has done heretofore. Hem. I give and bequeath %'iito Samuel Berm Jltchison, son of Mary Eleanor Atchison, all ti " L-,.ui I hold or claim ‘right to on the west sue fr small drain that leadsjrom & place called nnú- i. .icwt: ó y the name of the Duck Pond', also the Ltn:l a oer said drain, lying on Piney Branch, ji'XVherly called Fork Hall and Bachelor’s Delight, lying in Charles county, io him and his heirs lawfully begotten of his body for ever; and if he should die without issue, it is my will that the said land should be sold at public vendue, and the money or tobacco arising therefrom to be distributed amongst ¿he poor at the discretion of my executor. I also further give unto the said Samuel Berry Jltchison the following negroes, &c. them and their increase, to him and his heirs lawfully begotten of his body for ever; and if he should die without issue, it is my will that my said negroes should be sold at public vendue, and the money or tobáceo arising therefrom to be distributed amongst the poor at the discretion of my executor. 1 also further leave unto the said Samuel Berry Atchison, ail the rest of my personal estate that shall be remaining at the time he comes to the age of 21 years. In the mean time it is my wish that my executor shall keep my budding, and all the rest of my improvements, in good repair, and keep together all the rest of my estate, so as not to have it wasted, and to be by him delivered to the said Samuel Berry Atqhison; and incase he should die without is» sue, to be sold and distributed in the same manner as directed for the land and negroes. It is my will that Mary Eleanor Atchison, mother of the said Samuel Berry Atchison, will let my executor hereafter mentioned have the care and bringing up of the said Samuel Berry Atchison, whom 1 desire to put to school, and have taught as far as he my executor should think proper, the expense of which to be deducted out of my estate. Item. It is my will that Benjamin Cawood Junr. have all the land I hold or claim right to on the east side of a small drain that leads from a place called and known by the name of (be Duck Pond, where he the said Benjamin Cancood now dwelleth. at the price oi' 50s common currency per acre; and in case the said Caroood should noz think proper to purchase ibs same, it is my will that the said land be sold at public vendue, and the money arising therefrom to be distributed amongst the poor at the. discretion of my exc-ouror. And I make,, constitute and ordain, my good friend Benjamin fíarí-'Vfi'4. Junr. to be my executor, to manage and keep my estate together until the aforementioned Samuel Berry Mehison arrives to the age, of 81 years, then for my said executor to del her up all the real and personal estate, I have willed to the said Samuel Berry Jilchi-son: And it is further my will that, iny said executor shall collect and sell all the tobacco 1 have now due, or shall have hereafter due me for the rents of my land, for cash, and distribute the same amongst the poor at his discretion: and it is my will, that all that should be to spare at any time, exclusive of suJicvent to support the negrors and stock, and other necessary-expenses, shall be sold for the use of the poor in manner aforesaid. In witness,” íkc. .
    It was admitted that, the part of the land called Mix, which is shaded red on the plots, is the part which was claimed by Thomas Bern, the testator, and that the tracts of land (ailtd Mull arid Pork Stall Enlarged, constituted the dwelling plantation of the testator, so far- as the same is located on tire plots in black lines shaded yellow, and that, the house within the lines shaded yellow, was the dwelling house of the testator, and that the said house is ori the tract of land called Hull; and that Pork Hall Enlarged is a resurvey on Pork Hall and Bachelor’s Delight.
    
      Shaaff and Buchanan, for the Plaintiff.
    Martin, (Attorney General,) and Key, for the Defendant.
   Chase, Ch. J.

delivered the opinion of the court. The rules which have been adopted in the const,ruction of w-ills are well established, and when conformed to generally lead to a right decision of all litigated questions arising under them.

The intention of the testator is to prevail; but that intention must accord with the rules of law, and is to be collected from the words of the will.

The heir at law is not to be disinherited but by express words or necessary implication.

Intention, without words from which that intention can '.e inferred, operates nothing.

The right of the heir at law is presumptive, and devolving on him by operation of law, cannot he defeated or impeached by vague surmise of what the testator intended to do, or unfounded opinion of what, in his situation, he ought to have done.

If the words of a will are capable of two constructions, the court will adopt that which will best effectuate the intension of tne testator, manifested by the word of his nill.

Upon reading and considering the will of Thomas Berry, it is apparent that he intended to disinherit his heir at law, and to deprive him of every part of his estate. It is also obvious that Samuel Berry Atchison wa> tne primary and chief object of his bounty.

There is no dispute about the quantum of interest which passed to the devisee; the only contest is as to the. land which is devised by the testator to Samuel Berry Atchison.

According to the admission of counsel, the plots and evidence in the case, part of the lands held and claimed by the testator at the time of making his will, lay in Prince George’s, and the other part in Charles-county, part on the west and part on the east side of a drain leading from the Duck Pond in a north and south direction to Piney Branch.

It also appears that part of the land called Pork Hall Enlarged, being a resurvey of the lands mentioned in the will and called Pork Hall and Bachelor’s Delight, exclusive of what is devised to Benjamin Cawood, lay on the east, side of the drain from the Duck Pond.

The devise to Samuel Berry Atchison is as follow: «1 give and bequeath to ¡Samuel Berry Atchison all the land I hold or claim right to on the west side of a small drain that leads from the Duck Pond — also the laud o\ er said drain, lying’ on Piney Branch, formerly called Pork Hall and Bachelor's Delight, lying in Charles county."

This then is the description of the lands which the testator intended should pass. There are two parts in this description. The first, preceding the word ‘‘also,” comprehends all tine land the testator held on the west of the drain. This did not fully effectuate the intention of the testator; for it is plain from the words of the will, that he intended Samuel Berry Atchison should have that part of Pork Hall Enlarged, lying on the east of the drain which is not included in the devise to Benjamin Cawood, being the small piece at the south end of the tract described by the letter L on the plots. The latter part of the description passes that piece to the devisee, and was necessary to give full efifec-t to his intention.

The words "lying in Charles county,” constitute part of the description of Pork Hall and Bachelor’s Delight, and do not limit the operation of the first part of the devise.

The words “to him and his heirs lawfully begotten, of his body,” define the estate he is to have in the lands, and are as applicable to the first part of the devise as the last.

According to the plain meaning and import of the words used in this devise, Samuel Berry Atchison, took an estate tail in all the lands on the west side of the drain held by the testator, or to which he claimed a right, and to that parcel of Pork Hall Enlarged described by the letter L on the plots, subject to the temporary estates or qualified interest in the land devised to others.

The question now occurs, what lands lie on the west of the drain according to the meaning of the words used by the testator?

In the opinion of the court, according to the plain meaning and common acceptatien of the words «on the west side of the drain,” it was the manifest intention of the testator that all the lands which lay on the west of a meridian north line extended from the Duck Pond, should pass to the devisee Samuel Berry Jltchison. The testator, by the words “west of the drain” described the general bearing of the land, -with the reference to the Duck Pond and the drain issuing from it.

PliAINTIEE NONSUITED.  