. WATERS VS. HOWARD. 113

If the interest which a creditor takes by the will, is not co-extensive with, or
of the same nature of, that to which he is entitled from the testator as his
debtor, he will be entitled to both interests. :

The degree of intention necessary to raise a case of election must plainly ap-
pear upon the face of the will, but the court is not to disregard what amounts
to a moral certainty of the intention of the testator.

Though evidence debars the will, will not be admitted to prove or disprove such
intention, there is no valid objection to such evidence to show the state and
circumstances of the properly.

A party cannot take a benefit under a will, and at the same time defeat its pro-

[This case originated in the equity side of Baltimore County
Court, and was thence transferred to this court.

The bill was filed by Charles A. Waters and Ann Rebecca,
his wife, (since deceased,) for the specific performance of a
contract, entered into by the late Charles Waters, (grandfather
of the said Charles *A.) previous to, and in consideration of
the intermarriage of the latter with the said Ann Rebecca, to
purchase for the complainants, on the consummation of the in-
tended marriage, a farm, to be fully stocked; to pay all the debts
of the said Charles A., existing at the time of the marriage—-
and to furnish them with adequate means of subsistence during
the first year thereafter. The bill stated, that in part perform-
ance thereof, the grandfather shortly after the marriage, purchased
a farm in Baltimore county, containing about 189 acres, and put
the complainants in possession, having partly stocked it, and
was about to pay the debts of the said Charles A., amounting
to about (2000, when he was prevented by a sickness which
caused his death. The farm was only partly stocked—and no
provision had been made for the complainant's support during
the year ensuing their marriage. Elizabeth A. Howard and
Rebecca A. White, granddaughters of the deceased and sisters
of Charles A. Waters, together with their husbands and infant
children, and Freeborn G. Waters, the trustee of the deceased,
were made parties. The answers admitted the purchase of the
farm by the deceased, and the occupancy thereof by the com-
plainant after his marriage, but denied all intention on the part
of the deceased, to put it at his control and disposal or to give
10*