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. *253to 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 *254part 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, and he refers to 3d Pere Williams, 367, note A, and Beiderman vs. Seymour, 3d Bevans R., 368. From these authorities is deduced the principle, that where the testator devises a portion of Iris lands, and permits the residue to descend silently to his heir, the descended lands are primarily chargeable, and the devised lands secondarily; but where the testator has expressed in his will the desire that his heir should have one portion, and the devisee another, both are equally regarded in his intentions, and in such case the heir is not to be prejudiced by the fact that he takes his title by descent, and not by devise. And it is the saving effect o'f such expressed intention that secures to both heir and devisee equality of burden, which is but equality of equity, and therefore the “Hunting Fields” estate was chargeable with $250, one half of the annuity, and the interest thereon.
On the part of the appellee it is contended, that the union in the appellant of the right to the annuity and the ownership of “Myrtle Grove,” extinguished the-charge as to that estate, and it being the settled law in Maryland that-*255lands descended are liable in priority to' lands devised, “Myrtle Grove” is first to be applied, and “Hunting Fields” stands exonerated from the charge entirely, as “Myrtle Grove” was more than sufficient to pay. There can he no apportionment between estates when one of them is primarily liable.
In addition, it may be said, that the intention to charge both estates arose from the expectation that the devise of both would take effect. In fact the devise of “Myrtle Grove” was only defeated by the use of terms to which the Court in the case in 2 Gill gave a technical signification, and because the father of the first heir male was living at the death of the tenant for life, the Court applying the legal principle, nemo esi Jieres viveniis. By reference to the will it will bo seen, that the testator provided for a number of successive male heirs, and their issue, and at the conclusion of the devise, without any reasonable expectation that all the contingencies therein provided for would fail, designates no particular person to take, but says, “the same estate shall descend to, and devolve upon his right heirs,” and not heir, for if he had indicated but one heir, it might he supposed that the testator intended to designate his sister. On the contrary, it would be difficult to imagine that the testator could know who would be bis right beirs; and it may be regarded a permissive descent, rather than an intentional devise. While we entertain great respect for tbe very able judge who delivered the opinion in the ease of Biederman vs. Seymour, and recognize the equity of that decision, yet we think that case may he distinguished from the one before us.
In this case we consider the title of the appellant to “Myrtle Grove” as simply a title by descent, standing upon the same ground as if it had not been mentioned in the will. And under the established law of this State, it must he held as chargeable with the whole annuity, to the exoneration of “Hunting Fields,” which is specifically devised.
*256(Decided March 24th, 1864.)A decree will be signed affirming the decree of the Circuit Court.
Decree affirmed with costs to appellees.