JAMES E. POWER ET AL. v. JAMES S. AND SAMUEL T. DAVIS, EXECUTORS, ET AL.

JAMES E. POWER ET AL. v. JAMES S. AND SAMUEL T. DAVIS, EXECUTORS, ET AL. Equity. — No. 4740. I. When a codicil to a will of real and personal estate was found among the papers of the deceased, which he liad signed, bequeathing legacies, and there was an attestation clause in his own handwriting which was not subscribed by any attesting witnesses, the presumption of law in such case is that the testator intended to acknowledge and publish it in the presence of witnesses, and that it is, therefore, incomplete and invalid as a testamentary paper. II. The will contained a general direction for paying debts, but they were not in terms made a charge upon real estate. The children were eacli to take, an equal share in the estate. The codicil bequeathed money legacies-to the complainants, but created no fund for their payment: Held, That the, real estate devised is not liable to contribute to make up any deficiency in the personal property for tlie payment of legacies. III. The will gave a better title to the devisees than they would acquire by descent. They therefore take by purchase, and not, by descent. STATEMENT 0E THE CASE. This is a bill for marshalling assets against the devisees in the will of the late James Y. Davis. The testator appointed his wife, Harriet, and his sons, James S. and Samuel T., to be his executors, and directed them to pay his debts and settle his estate as soon as practicable. He then directed that his said sons should have the right and privilege to take his business and stock in trade on account of their share in his estate, and that they should exercise this privilege within thirty days after his will was filed in the Orphans’ Court. The testator then devised all the rest and residue of his estate to his wife in trust for the use of herself and children, and in the event of her death or marriage the said estate should be vested in his said sous as executors, to control and manage the same according to the laws of the District of Columbia. He then directed that each of his children should have an equal share in his estate. If neither of his said sons accepts or exercises the privilege aforesaid, the whole estate, is to vest in his executors, to be by them managed according to the laws of the District. The will was dated July 30, 1864, and in 1865 the testator made a codicil giving to his mother an annuity of five hundred dollars. The testator died on the 18th day of October, 1871, and there was found among his papers a writing dated August 1, 1871, purporting to be a codicil to said will, giving to the complainants and several other persons money legacies amounting to $25,000. The body of this instrument is in the handwriting of the testator, and it is signed with his genuine signature. It contains an attestation in the following words: “ Signed, sealed, published, and declared by the said James Y. Davis as and for a codicil to his last will and testament, in the presence of us, who, at his request, and in his preseuce and the presence of each other, have here subscribed our names as witnesses thereto.” This clause was not subscribed by any attesting witnesses. The two sons qualified as executors under the will, and upon a settlement of their account, on the probate side of the court, the personal estate was found insufficient to pay all the debts against the estate. The executors, w'ho were also creditors, after exhausting the personal assets, obtained a decree in this court for the sale of a portion of the real estate, and the remaining indebtedness was paid off. The wife and mother both died before the testator. Under these circumstances the original bill was filed by the legatees in the codicil last mentioned ; and they allege in their bill that the personal property is sufficient to pay their legacies, and pray that if the executors have used up the personal property in paying debts, then that they may be paid from the real estate. The infant defendants answered by guardian ad, litem, denying that the said paper-writing is a part of the last will and testament of the testator, or that it is a valid codicil thereto for any purpose whatever; they also deny that the said legacies are a lien upon the real and personal estate of the testator, and they aver that the personal estate was exhausted in the payment of debts. The answer of the executors is to the same effect. The amended bill charges, among other things, that the debts being a charge both upon the real and personal property alike, and the legacies being a charge only upon the personal estate, and the executors having exhausted the personal property in paying off the debts, then the complainants are entitled to stand in the place of the original creditors, and that said heirs take by descent; and concludes with a prayer to have the amounts marshalled, &c. The defendants filed answers to this amended bill, in substance, the same as to the original bill, to which general replications were filed. In regard to the codicil in controversy, William H. Ward, who prepared the original will, was examined as a witness, and testified that “some time in the spi’ing or summer of 1871, Mr. James Y. Davis came to see me and told me that he desired to make a codicil or addition to his will. He asked me to prepare a form for the same, leaving the names of the legatees and the amounts of the legacies blank, stating that he had not made up his mind as to the persons or the amounts, and that he would fill the said blanks himself. He spoke of his intention to give something to his relatives who were not provided for in his last will. I did so prepare the form in ink, with instructions in pencil as to how the same should be signed and witnessed, which paper I left at his place of business. So far as I recollect, the codicil presented here is a copy of the one prepared by me. I believe it to be a verbatim copy.” The case is now sufficiently stated to understand the points decided. John J. Johnson and R. K. Elliott, for complainants. The object of the suit is to subject the real estate of the testator, James Y. Davis, to the payment of the legacies bequeathed in the second codicil to his will. I. The second codicil is a valid and sufficiently executed and proved testamentary disposition of the personal chattels of the deceased. Similar papers, even less formally executed, have been recognized by the courts. In the case of The Trustees v. Bruce, 1 H. & McH., 510, the will was not signed by the testatrix, nor attested by witnesses. The day of the month and year and the name of the executor were left blank. Held good to pass personal property. A testamentary paper found in an iron chest, without signature, having an attestation clause, written by the deceased, valid for personal estate. (Watts v. Leroy, 4 Wend., 168.) Though a paper imperfect on its face may not be admitted, yet one perfect in itself and found with the will is valid as to personalty, non obstante, it contains a disposition of realty. In this case the codicil was perfect on its face, but unexecuted. (Brown v. Tilden, 5 H. & J., 371.) Blackstone says.in his Commentaries, vol. 2, p. 501: “A testament of chattels written in the testator’s own hand, though it has neither his name nor seal to it, nor witnesses present at its publication, is good, provided sufficient proof that it is his handwriting.” (Strish v. Pelham, 2 Vern., 647; 4 Ves. Jr., 201, note.) II. The legatees under the second codicil, which bequests are good against the personal property only, have a right to resort to the real estate to reimburse to the personal estate the amount thereof used to pay those claims — viz., debts and legacies under the will and first codicil — which were chargeable as well upon the real and personal estate. It is conceded that the personal estate is the natural and primary fund for the payment of debts and legacies; but where the personal estate not being sufficient to pay the legacies both by the will and codicil, and the real estate being liable to the legacies by the will, and not those by the codicil, the estate should be marshalled, so that, as far as possible, the whole might take effect and all the legacies be paid. (1 P. Williams, 423; 2 P. Williams, 620.) A specific or other legatee shall stand in the place of a bond or judgment creditor, if these take their satisfaction out of the personal estate. (1 P. Williams, 679; 2 P. Williams, 720.) If a creditor has two funds, he shall take his satisfaction out of that which another creditor has no lien. (2 Atk., 446 ; 8 Ves., 388; Story Eq. Jur., sec. 566.) A mere bounty of the testator entitles the legatee to call for this species of marshalling; that if the creditors, having a right to go to the real estate descended, will go to the personal estate, the choice of the creditors shall not determine whether the legatees shall be paid or not. So that wherever there is a double fund, though the court will not restrain a party, yet he shall not so operate his payment as to disappoiut another claim, whether arising by the law or by the act of the testator. (Powell on Mort., 890; 1 Mad. Ch., 767, 769; 8 Bland, 502, 516, 38; Story Eq. Jur., secs. 558, 566.) Legatees are entitled to the same equities where the personal estate is exhausted by specialty creditors ; otherwise they would be without any means of receiving the bounty of the testator. • (Story Eq. Jur., secs. 565, 566; Adams Eq., 589.) As between a legatee, either pecuniary or specific, and the heirs at law, if a debt chargeable both on the real and personal estate is paid by the executors out of the personal property in the first instance, the legatee will be permitted to stand in the place of the original creditor, pro tanto, and he may recover the amount of his legacy, or to the extent of the personal property so appropriated, out of the real estate descended to the heirs. (3 Page, 402.) Where one legateehas two funds to resort to for payment of a legacy, and another has only the personal estate, then the assets should be marshalled. (9 Hare, 659.) III. The defendants take the real estate of the testator by-descent, and not as specific devisees. These lands are, therefore, not exempt from sale for the payment of specific and pecuniary legacies. It is a well-established principle of the law of real property, that if a person is entitled to the same quality of estate in the two characters of heir and devisee, he will take by his preferable title of descent. (Doe v. Tim nis, 1 B. & A., 530; Cowden v. Clarke, Hob., 29; Godolphin v. Abingtons, 2 Atk., 57; Claplin v. Leroux, 5 M. & S., 14.) In Hainsworih v. Pelby, Cro. Eliz., 832-919, there was a devise to the oldest son in fee upon condition that if he paid not certain specific legacies to the testator’s daughter, the land should go to his second son; the court held that the devise in fee to the heir, being no more than what the law gives, was void. A limitation to an heir in a devise is void; the heir cannot be a purchaser. (Co. Litt., 22 b; Mainbridge v. Plummer, 2 M. & K., 93.) The rule is, if a man devises by his will his land to his heir at law and his heirs, the devise as such is void, and the heir will take by descent, and not by purchase, for the reason that the title by descent is the worthier and better title. (Powell on Devises, 427; 6 Greenleaf, 151; Jarman on Wills, 67; Ellis v. Page, 7 Cush., 161.) James G. Payne, for defendants. I submit, in the first place, that the paper-writing of August 1, 1871, is not good or effective as a testamentary disposition of any kind of property. Upon its face it is unfinished and incomplete. It has an attestation clause in the handwriting of the testator, showing it to be his intention that the execution • of the paper should be attested; that it should be by him published and declared in the presence of witnesses, as a codicil to his will, before it should become complete and operative as such a codicil. It shows a suspension of his intention to dispose of his property in the manner indicated, and that the intention or purpose so suspended was never resumed. When the testator has chosen to prescribe to himself a special mode of execution, and afterwards neglects to comply with such prescribed formalities, the inference to be drawn from these circumstances is, that he had not fully and definitely resolved on adopting the paper as his will. So wheii the paper is written and signed by the testator, and has-an attestation clause or memorandum, not subscribed by witnesses, the presumption of law is against it, and it is not a good will - even for personal property. (1 Williams on Executors, p. 72 ; 1 Jarman on Wills, pp. 93, 98, 156; Beaty v. Beaty, 1 Adams, 158 ; Walker v. Walker, 1 Merivale, 503; Mathews v. Warner, 4 Vesey Jr., 186; Scott v. Rhodes, 1 Phill., 19; Harris v. Bedford, 2 Phill., 177.) In the latter case Sir John Nicholl said: “As the natural inference to be drawn from an attestation clause at the foot of a testamentary paper is that the writer meant to execute it in the presence of witnesses, and that it was incomplete in Ms apprehension of it till that operation was performed, the presumption of law is against a testamentary paper with an attestation clause not subscribed by witnesses,” — “it is imperfect.” And such is the uniform language of the courts in the cases cited. In Modern Probate of Wills, p. 56, of unfinished or informal papers, it is said that the law on this subject is inflexible. The following American cases are directly in point and conclusive: Waller v. Waller, 2 Gratton, 454; Rochelle v. Rochelle, 10 Leigh, 125; Tilghmun v. Stewart, 4 Har. & J., 156; Plater v. Groome, 3 Md., 134; Barnes v. Syester, 14 Md., 507. There are other cases which treat of evidences of incompleteness in other parts of the instrument, the leaving of blanks, &c., which I have not cited. The courts in all these cases, and the text Avriters on the subject also, say that “those who assert the testamentary character of such an instrument must shoAv distinctly, and by extrinsic proof, either that the deceased intended the paper, in its actual unfinished condition, to operate as his will, or that he was prevented by death or involuntary accident from completing it.” In the present case there is not an attempt to comply with either of these requirements. Not an atom of such proof has been offered. The courts also say the presumption against the instrument is stronger where it seeks to affect real estate. That is what is sought to be done here. Also, that the presumption of law is stronger against it when it is' to alter a previously executed testamentary instrument. Here the paper in question seeks to alter and revoke, -pro tanto, the original will — a will perfect and complete in all its parts, and formally executed. Twenty-five thousand dollars of the property devised by that will to the testator’s children is to be taken from them, and more than four-fifths of it given to persons who are no kin to the testator or his family. It is not strange that the testator should have halted in the accomplishment of such a scheme; and it is not unreasonable to presume that he never finally concluded to consummate it. To entitle the complainants here to substitution or a marshalling of assets, two conditions must unite: 1. The personalty must be exhausted in the payment of debts which were primarily payable from the realty; 2. The realty must be in the heir by descent, and not by devise. Neither of these conditions is found in this case. The personalty was exhausted in payment of simple contract debts, for which it alone, and not the realty, was primarily liable. Unless the realty be subjected to the payment of these debts, either by statute or by the will of the testator, such payment must be made from the personalty. The realty is not so subjected by statute in this District, nor by the will of the testator. (2 Hilliard on Real Property, pp. 569, 577; 2 Jarman on AVills, 546; Story’s Equity Jurisprudence, 552, 571-573; 2 Leading Cases in Equity, 210; Aldrich v. Cooper, 8 Vesey Jr., 389; Hanna’s Appeal, 31 Penn., 53; Byrd v. Byrd’s Executors, 2 Brock, 170; Post v. Mackall, 3 Bland, 499-516; Chase v. Lockerman, 11 Gill. & Johns., 185; Gibson v. McCormick, 10 Id., 65; Stevens v. Gregg, 10 Id., 143.) There must be a deficiency of personal estate before the creditor can resort to the realty, and the petitioning creditor must show such deficiency. (Gaither et al. v. Welch, 3 Gill. & Johns., 259; Ellicott v. Welch, 1 Bland Ch., 243; Strike’s Case, Bland Ch., 89; Fenwick v. Laughlin, Bland Ch., 474; Bank of U. S. v. Ritchie, 8 Peters, (U. S.,) 129.) In the chancery acts giving to the court the power' to decree a sale of the real estate of a deceased person for the payment of his debts, that power is uniformly coupled with the condition precedent that the personal estate is insufficient. (Act of Maryland, 1785, chap. 72, sec. 5; Id., chap., 78, sec. 1.) Nor does the real estate here go by descent; for although the original will devises all the estate to the heirs, it gives them a quality of estate different from that they would take in the absence of a will. The direction of the testator is, that each of his children shall have an equal share in his estate. Under, our law, as derived from Maryland, the children of parents who die intestate, seized in fee of lands, &c., take as coparceners. All expressions importing division by equal shares, or referring to the devisees as owners of respective and distinct interests — such as “equally to be divided,” “share and share alike,” “ each an equal share,” &c. — create a tenancy in common, which is a different quality of estate from that of coparcenery. (1 Jarman on Wills, 68; 2 Hilliard on Real Property, 528; cases cited in 4 Am. Com. Law Rep., 361; Gilpin v. Hollingsworth, 3 Maryland, 190; Hoffer and Wife v. Demert, 5 Gill., 132; 1 Powell, 421, 428; Hall v. Jacobs et al., 4 Har. & Johns., 245.) Equity will not marshal the assets against the devisees of the realty, residuary or others. (2 Jarman on Wills, 601; 2 Williams on Executors, 1461; Roper on Legacies, 469; Adams Eq., 275; Story Equity Jurisprudence, 566; Gridley v. Andrews, 8 Conn., 2; Swift v. Edson, 5 Conn., 532; Allen's Heirs v. Allen, 3 Wall. Jr., 289; Livingston v. Livingston, 3 Johns. Ch., 153; Chase v. Locherman, 11 G. & J., 185.) Either of the three propositions I have contended for would defeat the ease of the complainants, and all of the three are completely sustained by the facts in the ease, and by the authorities I have cited as to the law. The defendants here are the children of the testator, and the court will not hastily take from them,the substance of the ancestor and give it to strangers. [MAJORITY — Mr. Justice MacArthur] Mr. Justice MacArthur delivered the opinion of the court: The complainants assume in their bill of complaint the validity of the codicil under which they claim as legatees. The defendants, who are the devisees mentioned in the will, assert that the codicil is not a good testamentary paper for any purpose, for the reason that it was never adopted by the testator in bis life-time as a part of his will. This point most he decided mainly upon the face of the instrument itself. The codicil in question is signed by the testator beyond doubt; but he has added thereto an attestation clause in his own handwriting, which is not signed by any attesting witnesses.- It is true that the law does not require a will of personal property to be witnessed by any one; yet when the testator has been anxious to write out upon the papers a memorandum of attestation, it is very clear that he intended to acknowledge and publish it in the presence of witnesses, and that he did not consider it- complete until that formality was complied. with. There is no proof or explanation in the testimony that the testator intended that the document should have its effect of a testamentary disposition in its imperfect condition; and we must, therefore, yield to the inference that he did not design it to have any effect in its present form. The English authorities appear to be uniform that “ the presumption of law is against a testamentary paper with an attestation clause not subscribed by witnesses.” Mr. Jarman, in his work on "Wills, vol. 1, p. 92, cites the cases and explains the reasons on which they are founded. He observes: “ Cases, however, sometimes occurred under the old law, and may possibly arise under the present, in which something more than a mere compliance with legal requirements was made necessary to the efficacy of the will by the testator himself, he having chosen to prescribe to himself a special mode of execution; for in such case, if the testator afterwards neglects to comply with the prescribed formalities, the inference to be drawn from these circumstances is, that he had not fully and definitely resolved on adopting the paper as his will.” And he cites Beaty v. Beaty, 1 Adams, 154, where Sir John Nicholl said: “As the natural inference to be drawn from an attestation clause at the foot of a testamentary paper is that the writer meant to execute it in the presence of witnesses, and that it was incomplete in his apprehension of it till that operation was performed, the presumption of law is against a testamentary paper with an attestation clause not subscribed by witnesses.” (See, also, Walker v. Walker, 1 Mer., 503; Harris v. Bedford, 2 Philp, 177.) The American cases present an instance precisely like this in Barnes v. Syester, 14 Md., 507, where the deceased left a will which he had signed, and there was an attestation clause without being subscribed by any witness. The court remark: “ It is well settled that an instrument like the present is to be classed among unfinished testaments, on account of the attestation clause without witnesses, even where the party has signed it; that the presumption of law is against such paper, and, though a slight presumption, must be rebutted by extrinsic circumstances in order to its being pronounced for.” Other cases, though not precisely like this, seem to adopt the same view of the law; as, in Waller v. Waller, 1 Gratt., 454, where the deceased made a statement to an attorney in regard to his will, which was taken down from his lips and read over to him at the time, and he, approving of it, directed the attorney to copy it and bring it to him for execution. He lived four days and expressed anxiety to have the will, saying, when he had signed it his affairs would be finished, but he died before it came. The leading opinion in the case discusses the proposition, that as the will had been reduced to writing during tlie life-time of the testator, by his direction, whether it was not well executed for some purposes, and the court unanimously held that it was not. But on the subject of the attestation which was found at the foot of the paper, Cabell, J., observes, in a separate opinion: “It is manifest from the paper itself that he (the deceased) intended something further to be done; that it should be signed and acknowledged in the presence of witnesses. He did not, therefore* intend this paper, which is not thus signed and acknowledged, to be his will.” Tilghman v. Stuart, 4 Har. & J., 175, and Platen v. Groome, 3 Md., 134, illustrate to some extent the same doctrine. According to this view of the law, the codicil under consideration is unfinished and incomplete as a testamentary paper, and the consequence is that we must hold it ineffectual for any purpose whatever. In addition to what has been said in regard to the validity of the codicil, I also think that the second branch of the defense is an answer to the relief prayed for in the bill. But on this point I only express my own views, for I am not quite sure that my brethren who heard the argument have given this point 'weight in their judgment. The complainants claim a right to come upon the real estate for the amount of the personal property 'which has been applied to the payment of debts. This raises the inquiry whether the realty is subject to the payment of the legacies provided in the codicil. The facts to be considered are these: The original will contains a general provision for the payment of debts, but they are not made a charge upon the real estate, nor are they directed to be paid out of any particular property or fund. By the language of the will, the children of the testator are each to have an equal share of the estate. It is admitted, in point of fact, that the debts have been paid out of the personal assets, and that these being inadequate for that purpose, a lot of the land has been sold, under a decree of this court, and the proceeds applied to the payment of all the debts in full. The. legacies in question are given in money, wdth the direction that they be paid without unnecessary delay. But the codicil creates no fund for their payment, nor are they charged, in terms, upon any portion of the estate. "When these circumstances concur in the same case, the law is clear that the real estate devised is not liable to contribute to make up any deficiency in the personal assets for the payment of legacies. (Hayes v. Seaver, 7 Greenl., 237; Humes v. Wood, 8 Pick., 478; 2 Redf. on" Wills, 869.) Nor will legacies prevail in a court of equity against a devisee of real estate, whether he be a specific or a residuary devisee, for they both take by the bounty of the testator. (1 Story Eq. Jur., sec. 565; Forrester v. Leigh, Ambler, 371; Jarm. on Wills, 601.) It is true that a creditor stands on a different footing, for he can resort to the real estate after the personal assets are exhausted. The general rule is, that the personal property is the primary fund for the payment of general creditors „and pecuniary legacies not otherwise provided for in the will; but in the distribution, the creditor is preferred to the legatee, even if nothing is left for the latter. In some cases, however, a legatee, in the administration of assets, is entitled to special equities; where, for instance, the debts are, by an expression in the will, made a charge upon the real estate, or a trust is created for their payment. In all such cases, should the personal estate be exhausted by the creditors, the legatee would be permitted to stand in their place as against the devisee, and equity would compel the devisee to refund from the real estate an amount equal to the personal assets which had been absorbed by the debts. The same principle would apply in case of a specific lien given by a will on a particular fund for the satisfaction of a legacy. Should the fund thus pledged be appropriated by creditors, the legatee would be reimbursed out of some other portion of the estate. So, also, if the personal property were applied to the payment of a mortgage debt created by the testator in his life-time, a legatee would stand in the place of the mortgagee in regard to the real estate covered by the mortgage. The principle upon which a court of equity marshals the assets in circumstances like these against a devisee, is based upon the principle that whenever a creditor has two funds to go upon, and another claimant can resort to only one of them, and that is exhausted first by the creditor, the other party can take his place to the extent that the fund has been depleted upon which he alone had a lien. A .creditor can enforce his demand against the personal estate, because as between him and the representative of the deceased that is the primary fund, (Lupton v. Lupton, 2 Johns. Ch. R., 624,) and it is first to be applied, even though the real estate may be charged. (1 Story Eq; Jur., section 571.) He has also a collateral right to resort to the real estate. He is thus doubly secured. Equity will, 'however, see that he exercises his rights so as not to absorb, beyond redress, the only security of another in one of the funds thus situated. This rule does not apply to this case, for neither the debts nor legacies are charged upon any part of» the estate by the terms of the will. The personal property has been applied, as it ought to be, in the due course of administering the estate, and the fund for the payment of debts, and the only one for the payment of legacies, have been disposed of as the law directs. Legacies are never charged unless the testator has used language expressing that to be his intention, (Lupton v. Lupton, 2 Johns. Ch., 624,) and there is no such language in this codicil. We have seen that the creditor .is preferred to the devisee, (1 Story Eq. Jur., sec. 507,) but the legatee is not. The devisee takes his gift by the will, without any incumbrance in respect to legacies unless it is expressed; subject, of course; to the rights of creditors. The equities of the devisees and legatees are therefore equal, and equity will not interfere. (1 Story Eq. Jur., sec. 571.) The testator had the power to incumber the devise with debts and legacies. There is nothing here but a general direction to the executors to pay the debts, and there is no evidence of any intention to charge them on the land in exoneration of his personal estate. If the testator had exempted his personal estate from the payment of his debts, as it was competent for him to have done, lie would thus have clearly provided a fund for the satisfaction of his legacies, and the parties entitled thereto would have a controlling equity superior to that of a devisee, and he would have the relief he now invokes. Wills generally commence with expressions such as, “After the payment of my debts,” or, “Imprimis, I direct my debts to be paid,” w'hich means the same thing, and afterwards there is devise of real estate. Numerous decisions are reported holding that language like this, charges the land with the payment of debts, and such may now be considered the established construction of all such expressions in a will. The author on w'ills already referred to appears to me to strain these authorities when he seeks to infer from them the doctrine that a mere direction to pay debts makes them a charge upon real estate, whether devised or not. In the cases to which he refers there was an express direction in the will that the debts or legacies should be first paid; and Chancellor Kent, in reviewing most of the same cases, in Lupton v. Lupton, supra, concludes by observing: “It is not sufficient that debts or legacies are directed to be paid. That alone does not create a charge, but they must be directed to be first or previously paid, or the devise declared to l),e made after they are paid.” The same ruling was observed in Freeman’s Chancery, 192, and in Eyles v. Carey, 1 Verm., 457. I come to the conclusion that the land devised cannot be charged with the payment of the legacies, even conceding that the codicil is a valid instrument. It is also contended that the devisees take as heirs, and not as devisees, which would let in legatees upon the devised estate. I think, however, it is quite clear that they take the real estate of the testator under the will as purchasers. The estate which they take by virtue of the devise is not the same as the interest they would inherit by descent. The title, therefore, passes to .them by the will, as it is a better one than that conferred by the statute. This point has been frequently overruled in Maryland. (Gilpin v. Hollingsworth, 3Md., 190; Hoffar v. Derwent, 5 Gill., 132; act of 1786, ch. 45.) The bill of complainants must be dismissed. [CONCURRENCE — Wylie, J.,] Wylie, J., concurred, being of opinion that the trusts expressed in the wilh deprived the legatees of any claim upon the real estate.