Mitchell v. Mitchell

Goldsborough, J., delivered the opinion of this Court: The object of the bill of complaint filed in this case by the appellant, was to recover a pro rata proportion of an annuity bequeathed to her by the last will and testament of her brother, James D. Mitchell. By this will an annuity of five hundred dollars, was given. ²⁵³ to the appellant, “to be payable and paid to her in oven and equal semi-annual instalments of two hundred and fifty dollars each, for and during the whole term of the natural life of my said sister,” and this annuity is charged on the whole of the testator’s real estate. This estate consisted of a tract of land in Charles County called “ Myrtle Grove,” and another tract or farm in Kent County known hy the name of “Hunting Fields.” For the purposes of this controversy it is agreed, that these tracts of land are of equal value. It is also agreed that the personal estate of the testator, after deducting therefrom the payment of the annuity up to August J840, was exhausted in the payment of the debts of the testator and expenses of administration.

This Court, in the case of Mitchell vs. Mitchell, 2 Gill, 230, decided that Sarah E. Mitchell, the annuitant, and the appellant in this case under the provisions of her brother’s will, took the estate in “ Myrtle Grove ” hy descent, she being the right heir of her brother; and further decided, that so far as “Myr.tle Grove” was chargeable with the annuity, Jt “ was sunk in her title to the land.” The union in the appellant of the right to the annuity in this case, and the ownership of “Myrtle Grove,” must extinguish the charge as to that estate. There is no question raised here about the devise of “Hunting Fields;” it is conceded that the parties named in the will took this estate as devisees. As illustrative of our opinion, it may he proper to state some propositions of law which are well established, and which we deem important to the solution of the question involved in this controversy. 1st. That in a case in which the same quantity and “quality of estate is devised as the devisee would have acquired hy descent, the title shall vest by the worthier title, by descent and not by devise.” See Medley vs. Williams, 7 G. & J., 61 .

It was also said, “a will that does not operate, is as no will. A will may operate in part, and in ²⁵⁴ part be inoperative.” And further, “ when the clause in the will does not pass the land to the devisee, but leaves it to descend to his heir at law, they will is so far inoperative, and a partial intestacy therefore exists.” 2nd. The annuity in this case being chargeable on the whole real estate, may be assimilated to other charges, as debts, &c., and -therefore the rule for marshalling assets would be ordinarily applied here. In Chase vs. Lockerman, 11 G. & J., 185 , and Dugan vs. Hollins, 11 Md. Rep., 41 , the rule is stated to be to apply, first, the personal estate, then lands devised to be sold for the payment of debts, then lands descended, and lastly, estates specifically devised, even though they are generally charged with the payment of debts.

Under this last proposition it is contended, by the appellant, that though it may be conceded that this is the established law in general, the case at bar is am exception,