WATERS VS. HOWARD. U9

the interest which the creditor takes by the will, is not ejusdem
generis, not being co-extensive with, or of the Same nature of
that to which he is entitled from the testator, as his debtor, the
legatee will be entitled to both interests.

But although, in cay opinion, the interest which this com-
plainant takes under the will of his grandfather cannot be re-
garded as a satisfaction of .his claim founded upon the alleged
contract, I yet think the will puts him to his election, and that
he cannot claim under the will and under the contract also.

There can be no doubt that the degree of intention, neces-
sary to raising a case of election, must plainly appear upon the
face of the will, but then the court is not to disregard what
amounts to a moral certainty of the intention of the testator.
McElfresh vs. Schley and Barr, 2 Gill, 181. ^;

And though evidence dehors the will, will not be admitted to
prove, or disprove, such intention, there seems to be no valid
objection to such evidence to show the state and circumstances
of the property. Judd vs. Pratt, 13 ves.y 174; 2 Roper on Leg-
acies^ 390.

Now, can there be a doubt that the testator did intend to dis-
pose of this property as his own. He took the deed to himself
on the 17th of February, 1846, and on the 2d of April follow-
ing, he made his will, by which he devised to the trustee, his
whole estate of every -kind and description. I throw out of
view his declaration to Mr. Poe, which has been excepted to,
but I suppose the fact of his taking the deed to himself is evi-
dence, to show the state and circumstances of property*

Now, is it not morally certain, that the testator intended to
dispose of his will of this property, and is not that intention ap-
parent upon the face of the will itself, especially when taken in
connection with the state and circumstances of the property.
He unquestionably had the legal title, and his intention/as it
appears to me, might be as well disputed to dispose of any
other part of his estate as this. -

There is another intention manifested upon the face of this
will, which would be frustrated by the success of this attempt
on the part of the complainant; and that is to place the grand-