Berry MAY 1803. the Duck Pond, where he the said Benjamin Cawood now dwelleth, at the price of 50s common currency per acre; and in case the said Cawood should not think proper to purchase the 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 executor. And I make, constitute and ordain, my good friend Benjamin Cawood Junr. to be my executor, to manage and keep my estate together until the aforementioned Samuel Berry Atchison arrives to the age of 21 years, then for my said exccutor to deliver up all the real and personal estate, I have willed to the said Samuel Berry Atchison: And it is further my will that my said executor shall collect and sell all the tobacco I 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 sufficient to support the negroes and stock, and other necessary expenses, shall be sold for the use of the poor in manner aforesaid. In witness," &c. It was admitted that the part of the land called Aix, which is shaded red on the plots, is the part which was claimed by Thomas Berry, the testator; and that the tracts of land called Hull and Pork Hall Enlarg ed, constituted the dwelling plantation of the testator, so far as the same is located on the 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 on the tract of Jand 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 construction of wills are well established, and when conformed to generally lead to a right decision of all litigated ques- MAY 1803. tions 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 be inferred, operates nothing. The right of the heir at law is presumptive, and devolving on him by operation of law, cannot be 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 intention of the testator, manifested by the word of his will. 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 was the 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: Berry Berry MAY 1803. I 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 land over said drain, lying on Piney Branch, formerly called Pork Hull 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 the 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 effect 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 acceptation of the words "on Berry VS Berry the west side of the drain," it was the manifest inten- MAY 1803. tion 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 Atchison. 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. PLAINTIFF NOnsuited. CIRCUIT COURT OF THE UNITED STATES MAY TERM 1803. THE BANK OF THE UNITED STATES vs. Norwood. The A corporation may do acts in pais otherwise Where notice to an indorsor of a promissory note, of which a bank is the holder, is giv. en according to the usage of the bank, it is suffici ent to charge the indor.or. It is not neces⚫ sary that the no tice should conwords, an in tain, in so many ASSUMPSIT on a promissory note drawn by Stone, Vaughan, & Co. in favour of the defendant, and by than by d him endorsed to the plaintiffs. This note was what is called an accommodation note, and the defendant endorsed merely to enable the drawers to obtain money on it from the bank, and the defendant knew that the drawers meant to obtain the money from the plaintiffs. The following facts appeared in evidence. note was presented for payment to the drawers, refused to pay it, and it was on the same day tested by Samuel Sterett, a notary public, and a ter to the defendant informing him that the note was protested for nonpayment was put into the post office on the same day. The defendant lived seven miles from the city of Baltimore, and the post office in the said city was the nearest post office to the house of the defendant. who tention to hold the pro indorsor liable, it let Mr. Sterett proved that he was agent to the bank for the purpose of presenting notes for payment, and that it was his invariable custom, whenever a note was refused payment, to protest it, and give notice of the protest in person to the indorsors, if they lived in the city, and if they lived in the neighbourhood to put a letter in the post office informing them of the pro is sufficient if, un der all the cir cumstances, it im ports such inten tions Bank of the U. S. MAY 1803. test for nonpayment. The penny post does not deliver letters to any person residing out of the city. The drawers were known by the indorsor to be insolvent at the time of the indorsement. Norwood Key, for the Defendant, objected-1. That the manner of sending the notice is not sufficient. In England, where the conveyance of letters by post is so much more regular and expeditious than it is in this country, the law requires the letter to be sent by the very first post-and even should that be considered sufficient in this country, yet in the case before the court, the notice was not sufficient, for the defendant lived seven miles from the city, and no letters are carried to the defendant's house by the penny post. The defendant only coming to town occasionally, the letter might remain in the office for a long time, and the very object for which speedy notice is required would be entirely defeated. 2. But admitting that this mode of giving notice should be considered sufficient, yet the form of notice is in itself deficient. The notice only states that the note is protested for nonpayment. The law requires that the notice should not only inform the indorsor of the nonpayment of the note, but also declare that the holder discharges the drawer, and looks to the indorsor for payment. For although the note may not be paid at the moment it becomes due, by the drawer, yet it does not follow that he will not pay it, or that the holder necessarily gives up his responsibility, and looks to the indorsor; and therefore the Jaw requires that this should be expressly stated in the notice, that the indorsor may be certain that the holder looks alone to him for the payment, and that he may take the best means to secure himself. Kyd. 125. Lovelace, 161, 165. Tindall vs. Brown, 1 T. R. 167. 3. That Samuel Sterett having no authority by deed from the bank to demand the money, was therefore not legally authorised to receive it, and consequently no notice from an unauthorised person can be suffici |