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The opinion of the Court was delivered by

Moses, C. J.

The plea of purchase for valuable consideration without notice cannot protect the appellants. The will of John McLarin, Sr., which conveyed his whole estate to John McLarin, Jr., after the life estate therein, to Agnes McLarin, was found in the office of the Judge of Probate for the Count)’ in which he lived and died. It was the proper office for the deposit of instruments of that character. A copy of it was entered in the record book of wills, with an entry in these words: “Proven by the oath of Jame3 H. Cobb, 19th June, 1837.” He was one of the subscribing witnesses. As an ancient writing, it was admissible without any evidence of probate. Every circumstance necessary to establish its authority after such a lapse of time will be presumed. But when *27to this is added a possession under it, commencing with the death of the testator, and continuing for over twenty years, any proof which may have been wanting to give it legal effect is supplied by inference ' of law, which recognizes it as what it purports to be.— Riddlehoover et al. vs. Kinard et al., 1 Hill Ch., 378. Even when this presumption of law cannot apply, another principle intervenes, founded on the supposition that an officer charged with a duty has performed it. — Dunkin & Littlejohn vs. Smith, 2 Hill Ch., 369.

In the absence of any direction to the contrary, a charge for the payment of legacies (and in these annuities are embraced) must be met and borne by the personal property. But a testator may, by words showing his intention, exonerate his personalty entirely from such burthen and subject his real estate alone to its operation. It is always a question of intention, to be determined by the language of the instrument. — Lupton vs. Lumpton, 2 John. Ch., 623. The personal estate is the primary fund for the payment of debts and legacies; but by words of express direction, or raising a strong implication that the burthen was to be shifted and sustained by the realty, equity will execute the proposed object according to the purpose of the party when so ascertained.

Under the will of John McLarin, Sr., the nephew, John McLarin, Jr., took the whole estate, subject to the life interest of Agnes McLarin. On her death, in 1851, the annuity to Janet became a charge on the entire property which was then to vest in him, and the words are too clear to admit of a construction confining it to the personalty. Where, however, both the real and personal estate are charged by the testator, and there are no words expressing the proportions in which they are relatively to apply to the satisfaction of the charge, the personal estate must be the first fund to respond, and the real will be held only auxiliary thereto.

Sir William Grant, in Turner vs. Lord Rous, 18 Ves., 138, states the rule as follows: “The personal estate being the proper and primary fund for the payment of debts and legacies, can be exempted only by express declaration or plain and unequivocal manifestation of intention. The question generally is whether there is sufficient evidence of that intention. It is agreed that neither a charge on the land nor a direction to sell nor the creation of a term for payment will exempt the personal estate.”

*28Janet McLarin being the legatee and devisee for life of all the estate of the testator, John McLarin, Jr., subject to several pecuniary legacies, to some of which a condition was annexed, and also executrix of his will, became at his death the owner of the whole property on which, under the will of John McLarin, Sr., her annuity was to attach. The entire rents and profits out of which it was to be raised vested in her for her lifetime — the enjoyment of both was of equal duration. The whole interest in the estate vesting in her under the will of John McLarin, Jr., any separate interest which she previously had in any portion of the property derived from a different source was extinguished — the lesser must sink in the greater. “The question is upon the intention, actual or presumed, of the person in whom the interests united. In most instances it is, with reference to the party himself, of no sort of use to have a charge on his estate, and where that is the case it will be held to sink unless something shall have been done by him to keep it on foot.” — 2 Spence Eq., 246, and the eases there cited.

Chancellor Kent, in Starr vs. Ellis, 6 John, 396, cites what was said by the Master of the Rolls in Forbes vs. Moffatt, 18 Ves., 389 : “It is very clear that a person becoming entitled to an estate subject to a charge for his own benefit may, if he chooses, at once take the estate and keep up the charge. A Court of equity will sometimes hold a charge extinguished where it would subsist at law, and sometimes preserve it where at law it would be merged. The question is upon the intention, actual or presumed, of the person in whom the interests are united. In most instances it is, with reference to the party himself, of no sort of use to have a charge on his own estate, and where this is the case it will be held to sink unless something shall have been done by him to keep it on foot. If it be perfectly indifferent to the party whether the charge should or should not subsist, it sinks.”

If the principle rests on the'intention of the party, while there is everything in this case to show that Janet McLarin accepted the legal title discharged of the trust, there is nothing to induce a contrary conclusion. She qualified as executrix of the will, and to this day no sale of .any portion of the personal property has been made. The slaves were emancipated, but, for aught that is shewn, the rest of it, not consumable by use, may still be in her possession. It appears from the statement in the brief that she continued, with her nephews, (the executors,) to occupy the premises where the testator *29resided in his lifetime, and no change was made in their mode and manner of living.

In 186 , after the sale of the real estate, under the judgment against John McLarin, Jr., she removed to Virginia, taking with her a portion of the property, and has not returned. Her whole course in regard to the estate, treating it exclusively as her own, clearly manifests her intention to extinguish the subordinate right to the annuity through the land by the larger* enjoyment of the whole income. What has been shewn in the case, from which her intention “ to keep it on foot,” could even be presumed?

The view which the Court takes of the case renders it unnecessary to consider that portion of the appeal which seeks to reverse the judgment of the Circuit Court on the demurrer to so much of the answer as relates to the counter claim preferred by the defendants. It will not, however, be out of place, on this question of practice, briefly to refer to it. Where the equitable jurisdiction of the Court is invoked, anything arising out of the defense which shows that the plaintiff is not entitled to the relief he seeks will preclude his recovery. Its effect will not be lost because the defendant interposes it by way of counter claim. He cannot be deprived of its weight because he offers it as a “counter claim,” if it is involved in his general defense and can operate to defeat the complaint against him. The objection that it is not within the statutory provision cannot prevail where it is incidental to the general defense and properly arises out of it.

The motion is granted, and the judgment of the Circuit Court reversed.

Wright, A. J., and Willard, A. J., concurred.

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