Bowie, J.,
delivered the opinion of the Court.
James L. Addison, late of Prince George’s County, Maryland, on the 9th of Dec., 1864, made and executed [194]*194his will, duly attested to pass real estate, in which he devised as follows : “I give, devise and bequeath in fee-simple, to my brother Anthony Addison, and to my sisters Margaretta Addison and Harriet M. Bayne, equally, share and share alike,, my farm called ‘Cole Brooke’ on which I reside, containing about three hundred and seventy-five acres of land. But my sister Harriet is not to derive any benefit therefrom during the life-time of my wife, the right of enjoyment of her third part, or of participating in the profits thereof, to commence'from the day of the death of my wife.
“Item. — I give, devise and bequeath to my wife Betty, in lieu of her dower in my lands, and all her rights, as widow, in my estate, five thousand dollars, to be paid to her within two years, with ten per cent, interest on the said five thousand dollars from the date of my death, absolutely to be held as her own individual property. I make this provision believing it to be that which will be most satisfactory to her as well as best for her interest.
“Item. — The share in ‘ Cole Brooke’ which I have devised to my sister Harriet M. Bayne, to take effect after the death of my wife,'I desire shall be equally enjoyed, share and share alike, by my brother Anthony and my sister Margaretta, during the life-time of my wife. * * * * It is my wish that ‘ Cole Brooke ’ shall continue in the family always, and hope that my devisees will remember my wishes. But this rests with themselves, the property is theirs, absolutely in fee-simple.
“Item. — All the rest and residue of my real estate, (Texas lands) I give, devise and bequeath to my brother, Anthony Addison and William Meade Addison, equally, share and share alike, with the request that should the Texas lands ever become valuable, they will give to Daniel D. Addison, one-fourth their value.
“Lastly. — I appoint my brother, Anthony Addison, sole executor of this my last will and testament.”
[195]*195Subsequently, the testator, made a codicil, as follows:
“As a codicil to my will, I devise and bequeath as follows :
‘£ To my brother, Anthony Addison, and to my sister, Margaretta Addison, all my personal property. What money Betty may have on hand I wish her to retain after paying my funeral expenses, which I beg may be very plain. What money may be due me from — Government on account of salary, I give and bequeath to my sister Margaretta.
“The silver pitcher presented to my late sister Betsey, by Mrs. Taylor, (and left to me,) I desire Margaretta to have. My gold watch 1 desire to he given to my nephew Murray Addison. Whatever amount may be derived from — Government on account of the slaves that belonged to my wife Betty, I wish her to have and the amount derived from my slaves * * * is to he divided equally between my sisters Harriet Bayne and Margaretta Addison. And I do hereby ratify and confirm my will, etc.”
On the 20th of August, 1870, the interest of Mrs. Bayne under the will, was transferred to Woodbury Wheeler, one of the complainants, in trust for his wife, Mrs. Wheeler.
The testator being dead, Anthony Addison presented the will for probate, obtained letters testamentary, hut passed no account, having died before the account which was being prepared, was finally adjusted.
During the life of the executor, to wit: on the 29th December, 1870, Wheeler and wife filed their hill in equity, against Anthony, Margaretta and Mary E. Addison, for an account and settlement of the personal estate of James L. Addison, and to have the real estate sold, if decreed to be liable for debts and legacies, and the proceeds invested for the protection of the estate thereafter to vest in the complainants.
[196]*196It is charged by the complainants, that neither the legacy to the widow, nor the interest, nor any part thereof, has been paid ; that besides the personal estate left by the testator, there is nothing in the jurisdiction of the Court, except the “Cole Brooke” estate, liable therefor ; which estate was annually depreciating in value, and the interest and estate conveyed to Mrs. Wheeler, would be lost beyond recovery, and absorbed by the legacy, should it be held liable for its payment, except by the interposition of the Court.
The respondents, Anthony Addison as executor of James, and Anthony and Margaretta Addison, devisees of the real estate, by their answer admit the will and codicil, as above set forth ; and that there was no other property of the testator within the jurisdiction of the Court to pay legacies ; they allege some small payments had been made to the widow on account of her legacy, and the executor alleges, that he had passed no accounts, because there were no debts to be paid ; that all the personal estate, (except a few specific legacies enumerated in the codicil,) had been bequeathed to his sister and himself, who were in the joint occupation, possession and enjoyment of the same.
They deny emphatically, that the estate called “ Cole Brooke” is deteriorating in value, but allege, although there is a general depression in real estate at present, which would render a sale most injurious to the interests of all concerned, the property is so favorably situated, (being within three miles of Washington City,) it must speedily attain its former value, and exceed it greatly; hence there is no ground for the apprehension that the interests of the complainants will be absorbed by the payment of the legacy, and the complainants have not offered to pay any part of the said legacy, or the interest provided for in said will.
The respondents deny that the personal property is primarily or proportionally liable for the payment of the [197]*197legacy of $5000, for it is manifest from the codicil, that it was not intended to require the payment of the legacy out of the personal property therein mentioned. They admit the testator had some undivided interests in lands in Texas, but the quantity and value thereof was unknown ■; part of said lands were devised to Wm. Meade Addison, who it is insisted ought to have been made a defendant.
Mrs. M. E. Addison, widow of the testator, in her answer insists, that “Cole Brooke” is responsible for the sum devised to her, and if not a charge on the land, that the personal estate is liable therefor ; and if neither is chargeable nor liable expressly, yet as she did not renounce the will, and claim her dower and thirds, she has, as widow, a valid claim in equity, against, the estate of the testador, for the sum of $5000, with interest.
Anthony Addison, executor and one of the devisees having- died, his widow and heirs-at-law, and Murray Addison, adm’r de bon. non, c. t. a., of Jas. L. Addison, were made parties. The adm’r b. b. n., submits to account, and the heirs-at-law rely on the answer of their intestate, Anthony Addison, previously filed.
Evidence having been taken by complainants and defendants, under commissions duly executed and returned, the cause was submitted to the Court below, by which an opinion was filed, and an order passed referring the case to the auditor, directing an account to be stated upon certain principles set out in the opinion, substantially as follows : The complainants have a right to the aid of the Court to enforce the payment of the legacy, the personal estate being insufficient and the land depreciating.
The personal estate is to be first applied to the payment of the legacy, which being- insufficient, the deficit must be supplied from the proceeds of the land in Maryland.
The auditor, stated accounts A, B, C, D, in conformity with the instructions of the Court, which coming to be heard upon exceptions filed by the defendants, Murray [198]*198Addison, adm’r d. b. n., and Margaretta Addison and the heirs-at-law of Anthony Addison, were ratified and confirmed by final decree of the Court, on the 21st of October, 1874, and the defendant Murray Addison, adm’r d. b. n., is adjudged to be indebted to the defendant, M: Elizabeth Addison, in the sum of $1637.98 with interest, as appears by account F, and the children and heirs-at-law of Anthonjr Addison, are adjudged to be indebted to the widow, M E. Addison, $2288.77 with interest, as appears per account G, and Margaretta Addison is adjudged to be indebted to the same in a like sum of $2288.77 with interest as per said account G, and the complainants, Wheeler and wife, are indebted to said M. Elizabeth Addison, $1209.26 with'interest as per said account G, which sums the respective defendants and complainants were required to pay on or before the 1st of December next, and in default thereof, the real estate called “Cole Brooke,” was decreed to be sold for payment of their proportions of said legacy.
In the interval between the interlocutory order and the final decree, Mrs. M. Elizabeth Addison, widow of James, filed her petition in the cause, alleging there was a large sum due her, amounting to about $7000, as legatee, under the will of her husband, which was conceded by all parties ; that she was without the means of support; that she had prepared a bill to enforce the payment of her legacy, but had waited the result of this case, to see if the Court would not decree a sale of property sufficient to pay her claim, but does not feel called upon to wait the decision of the questions which have arisen between the parties; she therefore prayed the estate lying in Prince George’s County might be sold, etc. No further action seems to have been had on this petition beyond setting it for hearing on the 21st July following ; there being no order or decree passed, on the same, the petitioner could not appeal. On the 26th June, 1874, subsequent to the interlocutory order, [199]*199filed by the Court, an account, marked E, was stated by the auditor, at the instance of the defendants, Margaretta Addison, and the widow, heirs and representatives of Anthony Addison, deceased, distributing the claim of M. Elizabeth Addison, against Margaretta Addison, Mrs. Bayne, or her assignee, and the heirs of Anthony Addison, without reference to the personal estate, charging each of the devisees or their representatives with one-third of the legacy, and interest thereon.
Exceptions were filed by the complainants to this account, because it assumed to charge them with one-third of the legacy to Mrs. M. Elizabeth Addison, widow of James, and charges them with interest on the same. Appeals were prayed from the decree, by Murray Addison, adm’r d. b. n. of Anthony Addison, and by Margaretta Addison, Murray Addison, Sally C. West, Kate L. Addison, Olivia C. Addison, Osborne Ingle and Mary Ingle, his wife, Arthur D. Addison, and Anthony O. Addison, and by the complainants, Wheeler and wife, “in so far as the same overrules the exceptions of the complainants to the auditor’s report, filed in the above cause on the 14th of May, 1874, and accounts A, B, C and D, filed therewith.” The defendants, Murray Addison and Sally C. West, adm’rs of Anthony Addison, and others, excepted to the jurisdiction of the Court below, to pass any decree upon the bill filed in this case, because they say the real estate called “ Cole Brooke” was devised to the said Anthony, Margaretta and Harriet M. Bayne, (to whose interest in said estate the complainants claim to have succeeded) in fee, by the said.James L. Addison, with the proviso, however, that the said Harriet M. Bayne was to derive no benefit from the said devise, etc., during the life of M. E. Addison, who is still alive, etc., and the complainants have no right to implead them in this suit.
2nd. The defendants allege the complainants’ bill does not contain any allegations, in respect of which the Court [200]*200can decree a sale of the real estate, and that the said hill is defective for want of parties.
3rd. That the averments therein contained, in reference to the alleged deterioration in value of said real estate are vague and uncertain, etc.
4th. Because, the whole personal estate of the said Jas. L. Addison, with the exception of a few specific legacies, etc., was bequeathed to the said Anthony and Margaretta Addison, and no suit will lie at the instance of the complainants, who are neither creditors nor legatees, to ask or demand of the executor or administrator d. b. n. of the said Jas. L. Addison any account of the said personal estate.
These exceptions do not appear to have been directly disposed of, but they are virtually overruled by the subsequent orders and decree of the Court.
It is not necessary to decide whether the complainants, Wheeler and wife, have alleged in their bill, facts which will authorize them to sustain it on the principles of a bill quia timet as laid down by the writers on Chancery Practice.
The record shows that pending the proceedings between the interlocutory and final decree, on the 26th of June, 1814, Mrs. M. E. Addison, widow of James, the testator, changed her attitude in this case, and from a defendant, became virtually complainant, praying that so much of the real estate of her late husband, as may be necessary to pay the amount chargeable on the same may be sold.
This jjetition changed the whole character of the proceedings, and invoked an entirely new rule of action.
Before, it was a question between volunteers, devisees and legatees, as to the fund primarily liable for the payment of the legacy; now it is a question as to the right of a quasi creditor to enforce her lien on the whole estate chargeable therewith. Both appellants and appellees, the representatives of Anthony Addison and Margaretta [201]*201Addison, admit tlie legacy is a lien on the land by implication.
By the appellants it is insisted, that there is a plain intent that the testator intended the devisees of “ Cole Brooke ’ ’ to take that estate upon the trust that they should pay the legacy (f$5000 to his widoio, etc.
This is not the case of an express charge of the legacy on the real estate, or an express exoneration of the personal, but the Court is left to gather from the face of the will and codicil, from which fund the legacy is payable, whether it is a personal debt, imposed on the devisees, or a lien on the lands devised, or chargeable generally on the personal and real estate.
The legacy of 85000 to Mrs. M. E. Addison, is “ in lieu of her dower ” in the lands, “ and all her rights as widow” in the estate of her husband, constituting her in equity, a creditor of the deceased to that extent.
Devisees and specific legatees would be alike liable to contribute to the payment of such a claim, at the suit of the widow.
The rule laid down by Lord Thuulow, in the case of the Duke of Ancaster vs. Mayer, 1 Bro. C. C., 454, 1 Lead. Cases in Equity, 415, that the personal estate of the testator, is the primary fund for tlie payment of debts, unless it he exempted hy express words or manifest intent, is adopted generally in the United States and in Maryland. It is said, after a very full review of all the cases, “the final result of the discussions has been, that unless the personalty, although specifically bequeathed, be expressly or clearly exonerated by other parts of the will, a charge upon the lands will not have that effect.” 1 White’s Eq. Cases, 492. As between tlie creditor, and devisees and legatees, the application of this rule is comparatively easy. The creditor comes in by paramount right, he is entitled to bo preferred by law to volunteers, and the law having cast the liability primarily on the personal estate, in favor [202]*202of the heir, in cases of descent, by analogy has applied the same rule in favor of the devisee of real estate.
But, as between devisees and legatees, both being volunteers, the degree of demonstration of intention, which will discharge or exonerate a legatee of the personalty, and cast the lien on the devisee of lands, is difficult to define.
Like all other dispositions by will, it must be controlled by the expressions of the testator’s purpose, as indicated by the whole instrument.
In Chase vs. Lockerman, 11 G. & J., 202, it is said: “The principle established by Lord Chancellor Cowper in the case of Long vs. Short, is sanctioned in a note to be found in 3 Woodeson’s Lectures, 534, where it is said, “as to debts by specialty, specific devisees of freehold and leasehold estates, seem to be on the same footing since the Statute of Fraudulent Devises, 3 W. & M., ch. 14, and liable to contribute in equal proportions to the satisfaction of those debts.” * * * Again, “according to the principles of the English law, equity will marshal the real assets descended to the heir, in favor of, or for the relief of specific legatees ; hut it will not for such purpose interfere with the lands devised, unless they were devised subject to the payment of debts. 3 Johns. C. Rep., 153. That is to say, the lands devised, will not be made to release or exonerate the specific legatee, but they will he held to contribute.” 203.
These citations are made with approbation, although not strictly necessary to the decision of the principal case, as furnishing a rule in cases corresponding in some of its features.
The reason assigned for the rule, is based on strong-sense. “The Lord Chancellor said, it would equally disappoint the intention of the' testator, to defeat either devise, by subjecting it to the testator’s debts ; and therefore he held, that on a deficiency of assets, both estates must contribute in proportion to the value of their respec[203]*203tive premises,” per Kent, Chancellor, in 3 John. C. Bep., 158. The real and personal estate being both specifically devised in this case, they should be made to contribute pro rata, according to their respective values. No other rule would gratify the intention of the testator, or do more substantial justice between the parties.
(Decided 2nd March, 1876.)
A different mode of adjustment having been adopted by the learned Judge below, it follows that the decree, and the accounts thereby ratified and confirmed, are reversed and set aside, and the proceedings remanded, that an account may be stated in conformity with the principles herein set forth ; and in default of the payment of the sum so found due to Mary E. Addison, widow, by the devisees and specific legatees, that the estate called “Cole Brooke,” be decreed to be sold, and the proceeds thereof, after first paying costs of sale, commissions, etc., be .applied to the payment of the legacy to said M. E. Addison, and the residue divided between the devisees ; the heirs of Anthony Addison and Margaretta, to enjoy the interest of Mrs. Bayne’s share, during the life of the said M. E. Addison.
The accounts adopted and ratified by the decree below, having been stated upon principles which have been pronounced erroneous, by’ the opinion of this Court, it is unnecessary to review the specific exceptions of the complainants, Wheeler and wife to said accounts, upon their appeal. The decree is reversed in all the cases, and the costs are to be paid equally by the appellants.
Decree reversed, and cause remanded.