tion being collected from an inspection of the grant itself, it is the duty of the court to give to it such an interpretation as will effectuate that intention, provided the terms and expressions used in the grant, will admit of such a construction. Looking to the premises only in this grant, we think that its design, and the intention of the parties to it, are too clearly and fully expressed, to admit of any reasonable doubt as to what they were. It states, in substance, that the grantees had applied for the grant to be issued to them, agreeably to the devise or "bequest" in the last will and testament of Thomas Brooke, and that the grantor had consented to make the grant accordingly. And it proceeds to state, that "therefore, in consideration thereof;" that is, in pursuance of such intent and agreement, the grantor did "give, grant, and confirm unto the grantees, the aforesaid tracts or parcels of escheat land, now resurveyed, with the vacancy added, reduced into one entire tract, and called Nonesuch, and bounded as follows," etc. If this grant had issued without the "habendum," could a serious doubt have been urged, but that it would have fully effectuated the design and intention of both the grantor and grantees; and that the tract of land called "Nonesuch," would have vested in the grantees, agreeably to the recited clause in the last will and testament of Thomas Brooke? We think not. It matters not that it is given to the grantees, without any express words of inheritance. The terms used in the granting clause itself, sufficiently declare the intention of the grantor, to transfer to the grantees the same interests and estates in the lands granted, with which it was designed to invest them, by the last will and testament of Thomas Brooke; and whether such declared intent preceded or succeeded the words, give, grant, etc., our construction of this clause of the grant, would be in no wise changed thereby.

"The technical meaning of the word premises, in a deed of conveyance, is everything which precedes the habendum;" "and it is in the premises of a deed, that the thing is really granted." The premises of the grant before us, passing, as we conceive, the lands granted in conformity to the last will and testament of Thomas Brooke, and the declared intent of both grantor and grantees, the next inquiry to be answered is, has the habendum such controlling influence over the grant as to defeat the estates created by the premises, and substitute, in their places, entirely different estates, contrary to the manifest intent of the parties to the grant? According to our construction of the grant, made by the premises, it is in direct conflict with that conatined in

AM. DEO. VOL. XLIII-22

the habendum. Both can not prevail. One must overrule the Which takes precedence, is the question. In our opinion, the limitation contained in the habendum must be rejected, and the estates given in the premises must prevail. In 2 Lomax's Digest, 188, it is stated, that "where there are two clauses in a deed, of which the latter is contradictory to the former, there the former shall stand." And in page 215, of the same book, it is said, that "where the habendum is repugnant and contrary to the premises, it is void, and the grantee shall take the estate given in the premises. This is a consequence of the rule already stated, that deeds shall be construed most strongly against the grantor; therefore he shall not be allowed to contradict or retract, by any subsequent part of the deed, the gift made in the premises." It follows, from the views we have expressed, that we think the county court erred in granting the appellees' prayer in the tenth bill of exceptions.

It is, we think, apparent, that the prayer of the defendant below, in the eleventh bill of exceptions, has not been correctly transcribed in the record transmitted to this court, it being, in a great measure, unintelligible. We, however, have no alternative but to assume, that the county court acted upon it in the form in which it appears before us; and, therefore, on account of its unintelligibility, properly rejected it.

We also concur with the county court in its refusal to grant the defendants' prayer in the twelfth bill of exceptions, but for very different reasons from those which influenced the action of that tribunal. Under the act of 1825, c. 117, the only point decided by the court below, was the insufficiency of the cause assigned, in bar of the appellees' right to recover. The prayer was, "that the plaintiffs can not claim title to the lands in controversy, and maintain an action of ejectment for the same, in virtue of the grant from the lord proprietary to Sarah Brooke, Walter Brooke, and Richard Brooke, because said grant is repugnant to, and in violation of the express terms of the will of Thomas Brooke, and is a fraud upon his devisees." In responding to this prayer, the county court was bound to give its true construction to this grant, so far as concerns the objection urged against it. That construction, this court have said, so far from being repugnant to, is in perfect consonance with the will of Thomas Brooke, and is, consequently, no fraud upon his deviBees. In this view of the question we must say, that the court below committed no error in its refusal of the appellant's prayer in her twelfth bill of exceptions.

We concur with the county court in its rejection of the appellant's prayers in the first, eleventh, and twelfth bills of exceptions; but dissenting from its instruction to the jury in the second and third bills of exceptions, and from its overruling the appellant's objections to the evidence offered in the fourth, fifth, sixth, seventh, eighth, and ninth bills of exceptions, and from its granting the appellees' prayer in the tenth bill of exceptions, we reverse its judgment.

Judgment reversed.

INTENTION OF PARTIES SHOULD GOVERN IN CONSTRUCTION OF CONTRACT: See Tindall v. Conover, 40 Am. Dec. 220, note 224, where other cases are collected. CONSTRUCTION OF DEED SHOULD GIVE EFFECT TO EVERY PART: See Shulta ▼. Young, 40 Am. Dec. 413.

DESCRIPTION IN DEED SHOULD BE CONSTRUED MOST STRONGLY IN FAVOR of the Grantee: Melvin v. Proprietors, 38 Am. Dec. 384, note 393.

BOUNDARIES WHICH PREVAIL: See note to Newman v. Foster, 34 Am. Dec.

105.

WHERE VISIBLE LANDMARKS CAN NOT BE ASCERTAINED, resort must be had to courses and distance: Bryan v. Beckley, 12 Am. Dec. 276.

ALLOWANCE FOR VARIATION OF MAGNETIC NEEDLE, WHEN MADE: See Bryan v. Beckley, 12 Am. Dec. 276.

PRESUMPTION OF GRANT: See Watkins v. Peck, 40 Am. Dec. 156, note 165. IF ANY PORTION OF EVIDENCE OBJECTED TO IS ADMISSIBLE, it is error to reject the whole: Waters v. Dashiell, 1 Md. 474; Nailor v. Bowie, 3 Id. 256; Hatton v. McClish, 6 Id. 416; Carroll v. Granite Mfg. Co., 11 Id. 399; Berry v. Matthews, 13 Id. 559, all citing the principal case to this point.

WHERE OBJECTION IS MADE TO THE WHOLE EVIDENCE OFFERED, if any part is admissible, the court must overrule the objection: Gaither v. Martin, 3 Md. 156; Emory v. Owings, Id. 185; Stewart v. Spedden, 5 Id. 448; Preston v. Leighton, 6 Id. 97; Levy v. Taylor, 24 Id. 293; Everett v. Neff, 28 Id. 185, all citing the principal case to this point.

THE PRINCIPAL CASE IS CITED in the following cases, to these points: In Beatty v. Mason, 30 Md. 411, of wills of land in Maryland, our own courts only are authorized to take probate; in Newman v. Reichard, Id. 419, parol svidence is not admissible, in an action of ejectment, where there are no plats or locations in the cause, for the purpose of showing that a tract known by a certain name was actually embraced within the lines of a patent of another tract; in Cole v. Pennington, 33 Id. 480, the recording of an instrument not entitled to record affords no ground whatever for admitting an authentication thereof as evidence; in Langley v. Jones, 26 Id. 474, where title paper is so unintelligibly represented on the plots and explanations, as that it is almost impossible for either the court or jury to say whether the locations are truly made, such title paper can not be used as proof; in Barry v. Hoffman, 6 Id. 87, where the indorsement on a deed is all the evidence offered of the time when it was admitted to record, the court should not submit the question to the jury, but where there is countervailing proof offered, the jury is the proper tribunal for its determination; in Clary v. Kimmell, 18 Id. 255, plaintiff in ejectment can not abandon his locations, if they prove unavailing, and prove, by parol, his possession of the locus in quo and the reputed name of the land; in Farquharson v. Eichelberger, 15 Md. 72, premises of deed control the habendum.

SOMERVELL v. SOMERVELL.

[3 GILL, 276.]

PART OF LEGACY OVERPAID BY EXECUTOR CAN NOT BE RECOVERED BACK in an action at law.

Boyle, for the appellant.

Randall and N. Brewer, for the appellee.

By Court, SPENCE, J. Action of assumpsit in Calvert county court. The declaration contained, a count for work and labor; the common money counts; a count on an account stated; and a special count, which charged, that the plaintiff, as executor of John Somervell, had paid over to the defendant, as one of the specific legatees of his testator, her specific legacy, valued at two hundred and ninety-three dollars and twenty cents. That as such executor he had overpaid the estate, by reason whereof the defendant became liable to contribute and pay the plaintiff fifty-nine dollars and thirty-one cents, so overpaid. To this declaration the defendant pleaded non assumpsit, and the statute of limitations. The plaintiff at the trial offered in evidence the will of his testator; the inventories; his second administration account, showing an over-payment of one thousand nine hundred and ninety-one dollars and ninety-one cents; and various receipts from the specific legatees, and among them, the defendants, and there rested his case. "The defendant, by her counsel, prayed the court to instruct the jury, that from the declaration and pleading, and evidence in the cause, the plaintiff can not recover: 1. Because this court has not full jurisdiction over the subject-matter thereof. 2. Because the remedy of the plaintiff (if any he have), is in a court of equity, where alone, all the parties can be brought before the court, and full justice done to all interested, by a final decree, in the premises; of which opinion was the court, and so instructed the jury."

The only question presented in this case for our revision, and the only one which we intend to decide, is, whether the county court, as a court of law, had jurisdiction. This was an action at law, to recover back a part of a specific legacy, which, as executor, the plaintiff had, by reason of a deficiency of assets to pay in full creditors and legatees, overpaid to the defendant. In the case of Johnson v. Johnson, 3 Bos. & Pul. 169, Lord Alvanley, C. J., says: "If an executor, thinking he has settled the affairs of his testator, pay the legacies, I have no difficulty is

saying, that a court of common law would not entertain an action for money had and received, against a legatee, since such a court can not take into consideration, as a court of equity would do, the mode in which the funds might have been applied." In Doe ex dem. Lord Saye and Sele v. Guy, 3 East, 123, Lord Ellenborough, C. J., said: "But it never could be doubted, but that at law the interest in any specific thing bequeathed, vests in the legatee upon the assent of the executor. If it should afterwards appear that there is a deficiency of assets to pay creditors, the court of chancery will interfere, and make the legatee refund, in the proportion required."

Mr. Justice Story in his commentary on equity, p. 507, sec. 534, in commenting on the jurisdiction of courts of equity, in cases of administration and settlement of estates, uses this language: "But the fact of its being a constructive trust, is not the sole ground of jurisdiction. Other auxiliary grounds also exist; such as the necessity of taking accounts, and compelling a discovery; and the consideration, that the remedy at law, when it exists, is not plain, adequate, and complete."

We think, therefore, both upon principle and authority, there was no error in the judgment of the county court. Judgment affirmed.

EXECUTOR CAN NOT RECOVER BACK OVERPAID LEGACY: Davis v. Newman, 40 Am. Dec. 764. See also Ticknor v. Harris, Id. 186; Zollickoffer v. Beth, 44 Md. 374, citing the principal case.

MUTUAL SAFETY INSURANCE COMPANY v. COHEN.

[3 GILL, 459.]

MASTER OF INSURED VESSEL MAY SELL HER, IN CASE OF URGENT NECESSITY, and such sale, made in good faith, will constitute a total loss. And if the jury find that, under all the circumstances attending her situa tion, consequent on injuries received by her from one of the perils insured against, it was necessary for the interest of all concerned to sell her, the insured may recover for a total loss, although he has made no valid abandonment of her.

WHERE PROPER INSTRUCTIONS COVERING THE WHOLE GROUND OF CONTROVERSY are given by the court, the judgment will not be reversed, merely because some instructions asked for and rejected might have been granted.

ASSUMPSIT, against the appellants. The opinion states the

case.

David Stewart and Mayer, for the appellants.