Bowie, C. J.,
delivered the opinion of this court.
The original bill in this cause, was filed on the 26th of December 1826, by Nancy Bond, administratrix d. b. n. of Dr, Henry Howard and others, against Charles Elder, and Sarah his wife, and others, (of whom the complainant, Rebecca J. Bond, then a minor, was one,) in the High Court of Chancery of Maryland, whence it was transmitted to the Circuit court for Howard county, as unfinished and undisposed of. Its object was, to procure the sale of certain lands, to which the complainants and defendants were jointly entitled, and on which the complainant, the administratrix of Henry Howard, claimed a lien, by way of mortgage or contract, executed by Elder and wife to Howard.
[445]*445The defendants, Elder and wife, consenting, (and a decree, pro confesso, against the non-residents, being passed,) a decree for the sale of the land, directing the proceeds to be brought into court, to be distributed under its order, was signed the 29th of October 1829. The trustees, appointed to execute the decree, afterwards, viz., on the 11th of February 1840, reported, that they had made two ineffectual attempts to sell the property, and that the land remained unsold; that the complainants, JN'ancy Bond and Mary Ann Howard, had married, and the defendants, Charles Eider and Sarah his wife, had died since the decree, and they prayed further order in the premises. No further proceedings were had until the 27th of January 1857, when the appellees filed a bill, entitled: “The Bill of Revivor of Joshua B. Bond, and Rebecca J. Bond his wife,” reciting the original bill, and proceedings thereon, alleging the subsequent death of Charles and Sarah Eider, a devise by the latter of her interest in the lands mentioned in the original bill, to Rebecca H. Elder, a devise of the same by Rebecca to Ruth O. Shipley and Juliana H. B. Shipley, the intermarriage of Juliana with one George B. Grey, and a conveyance by Grey and wife, and Ruth O. Shipley, on the 14th of February 1848, of the lands in question, to the appellant, John Ridgely of John, who, it is charged, had been in possession several years before; and prays an account of rents and profits; that the decree for a sale, be revived, and the property sold or divided amongst the respective claimants, as may be most consistent with equity, and for general relief.
The defendant’s answer admits he purchased of Grey an,d wife, and Ruth O. Shipley, who received their title from Rpbecca H. Elder, who, as the respondent always understood, received her title from her mother, Sarah Elder, who was, in 1840, and had been for many years before, in undisturbed possession, and treated the property as her own. The appellant denied the rights of the complainants to revive the decree, or to account, but insisted if the complainants had any claim to an account, it was only for rents and profits accrued within three [446]*446years before the commencement of this suit, and claimed to be allowed-the value of all permanent improvements made by him on the land.
The-cause being set down for hearing, after general replication and commission executed and returned, the Circuit court of Howard county, sitting as a court of equity, decreed, that the property mentioned in the proceedings be sold, the money arising from the sales to be distributed under the order of the courts that the auditor take an account of the rents and profits of the property, during the time it has been lawfully in the possession and occupancy of the defendant, and charge the defendant with the same, and also take an account of the improvements and repairs made by the defendant, so far as they have enhanced the value of the property, and deduct the amount thereof from the amounts of the rents .and profits. From which decree this appeal is taken.
The appellant contends:
1st. That the complainants had no right, as heirs of Henry Howard, to revive this suit, the title to the lands being in Sarah Elder alone, or those claiming under her.
2d. If they had any interest in the land, as heirs of Henry Howard, they could not revive without making his personal representative a party.
3d. A bill of revivor does not lie against the devisees of Sarah Elder, or the assignees of her devisees.
4th. The personal representatives of Charles and Sarah Elder should have been made parties.
5th. The proceeding should have been by an original bill in the nature of a bill of revivor.
6th. That new matter is introduced in this bill not applying to any of the original parties, or arising out of the transactions with which they were connected, and therefore it is a case for an original bill.
7th. That the plea of limitations was disregarded and overruled by the decree.
The first objection involves the construction of the will of [447]*447Achsah Howard, the common ancestor of the complainants, and those under whom the defendant claims.
It may be remarked, that the original bill, after referlingto the will of Achsah Howard, charges, “that independent of the contract and agreement hereinafter set forth and made between said Henry Howard and the said Sarah Elder and Charles, her husband, on the death of the said Elizabeth, the land of the said Achsah would have descended as follows: one'-third to the children and heirs-at-law of Henry Howard; one-third-to* Sarah Elder, and the remainder to the heirs of Brutus Howard.” It further charged, that by the said contract and agreement, the said lands were mortgaged to secure whatever sums of money* might be advanced by Henry Howard, for the use of Elizabeth Howard, and repairs of said estate, or by any. other person, after the death of said Henry, for said purposes, that the said Henry Howard had advanced $1086 for the maintenance and care of said Elizabeth, (who had become a lunatic,) and-Charles Elder and wife had made advances, the amount of which was unknown. By virtue of said agreement, the legal estate in said land was then vested in the heirs-at-law of said Henry Howard, and the heirs of said Brutus—two-thirds to the former and one-third to the latter—as tenants in common; the* estate of said heirs of said Henry being chargeable, in equity, with the advances made by said Henry in his lifetime, and the advances made by Charles Elder and wife, any surplus arising from the sale of said lands, after paying said advances, belonging to the heirs of said Henry, and the said Charles and Sarah Elder, share and share alike. Exhibit B., the contract or agreement referred to, recites, that upon the death of Brutus, without children, and on the death of said Elizabeth, the parties thereto will, as heirs-at-law, and next of kin to the said persons, be sole owners of the kind mentioned in the before recited division. This exhibit, and the material allegations of the original bill, were admitted by the answer of Charles Elder and wife, who consented to a sale, and prayed the proceeds might be brought into court, to be distributed under its order. [448]*448Whereupon the chancellor passed thé'decree of 1829, for the sale of the land, and directing the proceeds to be brought into court for distribution. Such decrees do not fix the rights of the partiéSj (Fitzhugh vs. McPherson, 9 G. & J., 76,) but it is apprehended that Sarah Elder, and all claiming under her, Would be estopped by the admissions of the deed recognised ánd confirmed by her answer of 1826.
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Bowie, C. J.,
delivered the opinion of this court.
The original bill in this cause, was filed on the 26th of December 1826, by Nancy Bond, administratrix d. b. n. of Dr, Henry Howard and others, against Charles Elder, and Sarah his wife, and others, (of whom the complainant, Rebecca J. Bond, then a minor, was one,) in the High Court of Chancery of Maryland, whence it was transmitted to the Circuit court for Howard county, as unfinished and undisposed of. Its object was, to procure the sale of certain lands, to which the complainants and defendants were jointly entitled, and on which the complainant, the administratrix of Henry Howard, claimed a lien, by way of mortgage or contract, executed by Elder and wife to Howard.
[445]*445The defendants, Elder and wife, consenting, (and a decree, pro confesso, against the non-residents, being passed,) a decree for the sale of the land, directing the proceeds to be brought into court, to be distributed under its order, was signed the 29th of October 1829. The trustees, appointed to execute the decree, afterwards, viz., on the 11th of February 1840, reported, that they had made two ineffectual attempts to sell the property, and that the land remained unsold; that the complainants, JN'ancy Bond and Mary Ann Howard, had married, and the defendants, Charles Eider and Sarah his wife, had died since the decree, and they prayed further order in the premises. No further proceedings were had until the 27th of January 1857, when the appellees filed a bill, entitled: “The Bill of Revivor of Joshua B. Bond, and Rebecca J. Bond his wife,” reciting the original bill, and proceedings thereon, alleging the subsequent death of Charles and Sarah Eider, a devise by the latter of her interest in the lands mentioned in the original bill, to Rebecca H. Elder, a devise of the same by Rebecca to Ruth O. Shipley and Juliana H. B. Shipley, the intermarriage of Juliana with one George B. Grey, and a conveyance by Grey and wife, and Ruth O. Shipley, on the 14th of February 1848, of the lands in question, to the appellant, John Ridgely of John, who, it is charged, had been in possession several years before; and prays an account of rents and profits; that the decree for a sale, be revived, and the property sold or divided amongst the respective claimants, as may be most consistent with equity, and for general relief.
The defendant’s answer admits he purchased of Grey an,d wife, and Ruth O. Shipley, who received their title from Rpbecca H. Elder, who, as the respondent always understood, received her title from her mother, Sarah Elder, who was, in 1840, and had been for many years before, in undisturbed possession, and treated the property as her own. The appellant denied the rights of the complainants to revive the decree, or to account, but insisted if the complainants had any claim to an account, it was only for rents and profits accrued within three [446]*446years before the commencement of this suit, and claimed to be allowed-the value of all permanent improvements made by him on the land.
The-cause being set down for hearing, after general replication and commission executed and returned, the Circuit court of Howard county, sitting as a court of equity, decreed, that the property mentioned in the proceedings be sold, the money arising from the sales to be distributed under the order of the courts that the auditor take an account of the rents and profits of the property, during the time it has been lawfully in the possession and occupancy of the defendant, and charge the defendant with the same, and also take an account of the improvements and repairs made by the defendant, so far as they have enhanced the value of the property, and deduct the amount thereof from the amounts of the rents .and profits. From which decree this appeal is taken.
The appellant contends:
1st. That the complainants had no right, as heirs of Henry Howard, to revive this suit, the title to the lands being in Sarah Elder alone, or those claiming under her.
2d. If they had any interest in the land, as heirs of Henry Howard, they could not revive without making his personal representative a party.
3d. A bill of revivor does not lie against the devisees of Sarah Elder, or the assignees of her devisees.
4th. The personal representatives of Charles and Sarah Elder should have been made parties.
5th. The proceeding should have been by an original bill in the nature of a bill of revivor.
6th. That new matter is introduced in this bill not applying to any of the original parties, or arising out of the transactions with which they were connected, and therefore it is a case for an original bill.
7th. That the plea of limitations was disregarded and overruled by the decree.
The first objection involves the construction of the will of [447]*447Achsah Howard, the common ancestor of the complainants, and those under whom the defendant claims.
It may be remarked, that the original bill, after referlingto the will of Achsah Howard, charges, “that independent of the contract and agreement hereinafter set forth and made between said Henry Howard and the said Sarah Elder and Charles, her husband, on the death of the said Elizabeth, the land of the said Achsah would have descended as follows: one'-third to the children and heirs-at-law of Henry Howard; one-third-to* Sarah Elder, and the remainder to the heirs of Brutus Howard.” It further charged, that by the said contract and agreement, the said lands were mortgaged to secure whatever sums of money* might be advanced by Henry Howard, for the use of Elizabeth Howard, and repairs of said estate, or by any. other person, after the death of said Henry, for said purposes, that the said Henry Howard had advanced $1086 for the maintenance and care of said Elizabeth, (who had become a lunatic,) and-Charles Elder and wife had made advances, the amount of which was unknown. By virtue of said agreement, the legal estate in said land was then vested in the heirs-at-law of said Henry Howard, and the heirs of said Brutus—two-thirds to the former and one-third to the latter—as tenants in common; the* estate of said heirs of said Henry being chargeable, in equity, with the advances made by said Henry in his lifetime, and the advances made by Charles Elder and wife, any surplus arising from the sale of said lands, after paying said advances, belonging to the heirs of said Henry, and the said Charles and Sarah Elder, share and share alike. Exhibit B., the contract or agreement referred to, recites, that upon the death of Brutus, without children, and on the death of said Elizabeth, the parties thereto will, as heirs-at-law, and next of kin to the said persons, be sole owners of the kind mentioned in the before recited division. This exhibit, and the material allegations of the original bill, were admitted by the answer of Charles Elder and wife, who consented to a sale, and prayed the proceeds might be brought into court, to be distributed under its order. [448]*448Whereupon the chancellor passed thé'decree of 1829, for the sale of the land, and directing the proceeds to be brought into court for distribution. Such decrees do not fix the rights of the partiéSj (Fitzhugh vs. McPherson, 9 G. & J., 76,) but it is apprehended that Sarah Elder, and all claiming under her, Would be estopped by the admissions of the deed recognised ánd confirmed by her answer of 1826.
The theory by which the heirs of Henry Howard are to be excluded is, that the terms of the will of Achsah Howard raise a fee, by necessary implication,'in favor of Sarah Elder, to the exclusion of Brutus, Ephraim, and Henry Howard; that the daughters, and their issue, Were to be preferred to the soils; it is'insisted, that this interpretation alone gratifies the Obvious intention’of the testatrix, and is arrived at “by brooding oyer the will.'”
The courts'have, in some instances, allowed of a devise by implication,, where it has been very apparent, in order to support and effectuáte the intention of the testator;’ but, in cases of this kind, the implication must be plain, and not merely a possible or probable one, for the title of the heir-at-law being éleár and obvious, no words in a unit ought to be construed in suéh a manner as to defeat it, if they can have any other signification. And Lord Eldon has said: “With regard to that, expression, ‘necessary implication,’ 1 will repeat what I have before stated, from a note of Lord HardwickPs judgment, in Coriton vs. Hellier, that in construing a will, conjecture must not be taken for implication; but necessary iiiiplication means, not natural necessity, but so strong a probability of intention, that an intention contrary to that Which is imputed to the testator, Cannot be supposéd.” Cruise, Tit. Devise, ch. 10, sec. 19. Willes Rep., 141. 1 Ves. & Bea., 466.
The clause of the Will to be construed by the court, is as follows:
“I" give and-bequeath unto my daughter Elizabeth, all my land during her single life, but if she marries, it is my desire that the land be equally divided between her and her sister, [449]*449their heirs and assigns; but if her sister Sarah Elder should die without issue, it is then my desire that the land should be the right and estate of Elizabeth, her heirs and assigns, but if Elizabeth should die without issue, it is then my will and desire, that my land shall be equally divided between my sons, Brutus and Ephraim, their heirs and assigns.”
The first section of this clause of the will of Achsah Howard, (as we interpret it,) invested Elizabeth Howard with a life estate in all the lands devised, subject to be divested of one-half, in the event of her marriage; which moiety, in that event, vested in Sarah Elder; and which, if the said Sarah died without issued, reverted to Elizabeth. The subsequent sections then, by implication, give Elizabeth a fee-tail in the whole; and the devises over in favor of Ephraim and Brutus, being after an indefinite failure of issue, are void. The effect of this construction is, under our Acts of Assembly, to leave the fee to descend to Elizabeth’s heirs at law, her brothers and sisters, and to divide the estate equally among all her collateral relations without disinheriting any. The construction contended for by the appellant cuts off one branch of the family, without any apparent reason, and works inequality, besides being opposed to the construction assumed in the original bill, agreed on in the contract of mortgage, admitted in the answer, and acquiesced in for many years by all concerned. According to these views,-the appellees had, as heirs at law of'HenryHoward, such an interest in the subject matter of the suit as entitled them to file a bill of revivor. Independent of this, the appellee, Rebecca, being, a defendant to the original bill, was entitled to call upon the court to execute the decree, which abated by the death and marriage of some of the complainants and defendants, that she might be allowed her costs and charges in that behalf expended. 2 Madd. Ch., 531, 534. Defendants, or or their representatives, may revive a suit, in every case where they may derive a benefit from further proceedings.
The second and fourth objections, that the complainants should have made the personal representatives of Henry Howard [450]*450and Charles and Sarah Elder parties to the bill of revivor, are, in our judgment, well taken. The decree, which is sought to be revived, requires the land to be sold, the proceeds to be divided,, among the parties entitled, not as heirs only, but as incumbrancers also, the complainant in the original bill, and defendants claiming large liens; these incumbrances are personal assets, of the deceased parties, to be administered according to law- and without the presence of personal representatives the fund could not be distributed, or the title be made good to the purchaser.
The third and fifth points, that a bill of revivor does not Ii& against the devisees of Sarah Elder, and that the proceeding should have been by an original bill in.the nature of a bill of revivor, may be considered together. The character of the bill is determined rather by the allegations and relief prayed, than the title it assumes. A bill filed' for the sale of a deceased’s estate in default of personal assets, commonly known as a creditors bill, will operate as such although it does not profess to be filed on behalf of any other creditor than the complainant. 2 H. & G., 192, 233. 10 G. & J., 100. So where a bill is filed for relief, nominally in one character, and alleges facts showing the complainants are entitled to relief in another, relief will be granted according to the allegations and the proof. 2 Md. Ch. Dec., 199. Many other examples might be cited, but these are sufficient to show that the chancery or equity pleadings of this State are not held to a rigid compliance with the rules of English practice, or the technicalities that control proceedings at law. 5 G. J., 451. 1 Md. Ch. Dec., 156.
As to the allegations of the devise from Sarah Elder, and mesne devises, and sale to the appellant, which constitute the new matter referred to in the sixth objection, these, in our opinion, are but a statement of the chain of title from one of the original defendants to the appellant, who standing in the place of said Sarah, and claiming under her, is properly responsible for whatever she would be held to account. If Sarah had sur[451]*451vived and continued to enjoy the whole rents and profits, she would be chargeable with them as a set-off to her claim pro tanto; the account, springs out of the subject matter of the original decree, and is not, strictly speaking, a new matter of litigation.
(Decided June 26th, 1862.)
We concur with the court below in the decree adjusting the principles of the account for the rents and profits, and the allowances for improvements.
The proceedings being defective for want of proper parties, the cause is remanded under the Act of 1832.
Cause remanded under Act of 1832, ch. 302.