Berry's Lessee v. Berry

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 [421] 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: [422] «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 [423] 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.