house at " (q). But in All Souls' College v. Coddrington (r), the bequest was, "I devise my library of books, now in the custody of C., to All Souls' College in Oxford;" and the testator gave to the same college 4,000l. more to augment their library: He afterward bought several valuable books, which were placed in his *library : And the question was, whether those books passed to the college: Sir Joseph Jekyll, M. R. determined in the affirmative, upon the construction of the word "now;" his honor being of opinion, that "now" did not relate to the books which were in the library at the date of the will; but that it denoted where the library was; and night have been intended to distinguish that particular library from any other belonging to the testator: And his honor observed, "if I devise all my flock of sheep now on such a hill, or in such a pasture; in that case, because sheep are in their nature fluctuating, some must die, some be killed and some lambs be produced which will afterward breed, and it being the case of a collective body, the sheep produced afterward shall pass; and this is within the reason of a devise of a personal estate, which, because always fluctuating, shall therefore relate to the time of the testator's death; besides the Will, as to personals, does not speak till after the testator's death." In Harcourt v. Morgan (s), a testator gave to W. H. and M. H. the amount of the bond he held for 1,000l.: when they got the principal money paid to them, they then to give their uncle, J. B., the sum of 50l., and also their father and mother the sum of 50%. each, arising from the bond: And Lord Langdale, M. R., held, that W. H. and M. H. were entitled to the interest accrued due upon the bond in the lifetime of the testator, as well as to the principal (t).

case of accretion:

With respect to cases where the testator has bequeathed the whole of some one genus of his property, as "all debts due to me on bonds," or "all my stock," or my share," or in any other way has referred to particular property, and bequeathed it by the description of all his property, the court had arrived at a conclusion, before the Wills Act, that he meant only so much of the property in that state of investment as he was possessed of at the date of his will (u). *But in Goodlad

(9) 1 Rop. Leg. 220, 3rd edit. Dormer v. Burnet, cited in Downing v. Townsend, Ambl. 281. Atty.-Gen. v. Bury, 2 Vin. Abr. 328, pl. 2. 1 Eq. Cas. Abr. 201. See also Smallman v. Goolden, 1 Cox, 329. As to the effect of the word "now" in a will to which

the Wills Act applies, see ante, p. *175, note (t).

() 1 P. Wms. 597.
(8) 2 Keen, 274.

(t) See ante, p. *1064 (q).

(u) Kay, 404. 1 Kay & J. 347, 348. Ante, p. *1023. [*1300]

[*1301]

v. Burnett (x), Sir W. Page Wood, V.-C., expressed his opinion that, since the above enactment of the Wills Act, it required some plainer indication of " contrary intention," than the mere circumstance that the testator has described stock by the words " my stock," to take the case out of the statutory rule that the will shall speak as if it had been executed immediately before his death: And his honor accordingly held that, where a testatrix, in 1850, bequeathed thus, "I give my New three and a quarter per cent. annuities," the bequest comprised all the new three and a quarter per cents. which she had at her death :-And the learned judge distinguished between a reference to a particular thing, such as a ring or a horse, and a bequest of it as "my ring" or "my horse," and a bequest of that which is generic and which may be increased or diminished (y).

The effect of section 24 of the Wills Act is not to alter the law of specific legacies (z). The only effect is that, to ascertain what is comprised in a specific bequest, it is necessary in all cases to consider the will as made immediately before the testator's death (a). There is only one exception to this rule and that is where the testator refers to the date of the will as the point of time at which the quantum of the property is to be ascertained (b). There is, however, another apparent exception to the rule, which is, where a testator has used words of such a character that it is doubtful whether or not they are sufficiently extensive to cover additions to the property made between

(x) 1 Kay & J. 341.

(y) See also Douglas v. Douglas, Kay, 400, 405, where the same judge expressed an opinion that under the Wills Act a gift of "all my stock" would *pass all stock to which the testator was entitled at his death; but a gift of "all my stock which I have purchased," must be confined to stock actually purchased at the date of the will: And his honor took a like distinction between a gift of "all the debts due to me on judgments," and "all judgments, which I have registered:" His honor proceeded to decide, that in a will made since the statute, and containing the words, "I hereby exonerate my sister from all claims in respect of money laid out by me in improvements of the estates in Scotland, and which

money has, according to the laws of Scotland, been charged thereon," the exoneration only applied to moneys so charged at the date of the will, and not to money afterward laid out and charged, nor even to money then laid out, but afterward charged.

(2) Per Jessel, M. R. Bothamley v. Sherson, L. R. 20 Eq. 304, 312. (a) Per Turner, L. J. Langdale v. Briggs, 8 De G. M. & G. 391, 435.

(b) Cole v. Scott, 1 Mac. & G. 529. Douglas v. Douglas, Kay, 400. Hutchinson v. Barrow, 6 H. & N. 583. Williams v. Owens, 2 N. R. 585. Jepson v. Key, 2 H. & C. 873. Hepburn v. Skirving, 4 Jur. N. S. 651. Lord Lilford v. Powys Keck, 30 Beav. 300. Wagstaff v. Wagstaff, L. R. 8 Eq. 229. And see ante, pp. *175-*178.

the date of the will and that of his death. It is in the construction of gifts of this character that questions have usually arisen since the Wills Act (c).

in the testator's

life:

(a) after the will.

(b) before

will.

the

If the testator bequeaths to a specific legatee a certain quantity of bank stock, for example 5,000l. standing in his name, Bonuses accruing and a bonus be given by the bank, under the statute 56 Geo. III. c. 96, s. 3, in the interval between the date of the will and the testator's death, the additional capital will not pass to the legatee (d). But in Matthews v. Maude (e), a testatrix had power to dispose by will of property, which she enjoyed under the residuary gift of her brother; a part of this property consisted of 7,000l. bank stock which after the brother's death was increased by a bonus to 8,7507.; The testatrix in her will, made shortly after the bonus was declared, described the bank stock as consisting of 7,000l.: And Sir J. Leach, M. R., decreed that the 8,750l. passed by force of general expressions which plainly manifested an intention to bequeath all that the testatrix derived from her brother (ƒ). And with regard to after the bonuses which accrue after *the death of the testator, upon shares specifically bequeathed by him, such bonuses belong to the specific legatee (g).

Bonuses accruing

tor's death.

testa

without neces

must be got in by the expense of the general estate :

the executor at

It may be observed, in conclusion, that it is the duty of executors, as far as possible, to preserve articles specifically specific legacies bequeathed, according to the testator's wish; and, not to be sold unless compelled, they ought not to apply them to the sity: payment of debts (h). And it may be further remarked, that it is also the duty of the executors to get in all the testator's estate, whether specifically bequeathed or otherwise and that the expenses incurred in doing so must be paid out of the general estate, as part of the expenses of the administration (i). (c) See for cases where the larger interpretation prevailed: Miles v. Miles, L. R. 1 Eq. 462. Trinder v. Trinder, ib. 695. Castle v. Fox, L. R. 11 Eq. 542. Re Ord, 9 C. D. 667; 12 C. D. 22. Saxton v. Saxton, 13 C. D. 359. And for cases where the narrower : Webb v. Byng, 1 K. & J. 580. Re Portal and Lamb, 30 C. D. 50. And see generally as to the time from which a will speaks, pp. *175-*178, ante, and as to the ademption of legacies, ante, p. *1183 et seq.

(d) Norris v. Harrison, 2 Madd. 268. See further, Loscombe v. Wintringham, 12 Beav. 46. But see also Courtney v. Ferrers, 1 Sim. 145.

(e) 1 Russ. & M. 397.

(f) See also, Carver v. Bowles, 2 Russ. & M. 304.

(g) See Maclaren v. Stainton, 27 Beav. 460, 462; reversed 3 De G. F. & J. 202. See ante, p. *1285.

(h) Clarke v. Lord Ormonde, Jacob,

108.

(i) Perry v. Meddowcroft, 4 Beav. 204. [*1303]

certain number of

It may be added, that if a testator, dying solvent, bequeaths to A. right of selection a given number of articles forming part of a stock of in a legatee of a articles of the same description, as for instance if he a stock of articles. has twenty horses in his stable and bequeaths six of them, the legatee, and not the executor, has the right of selec tion (k).

Where there is a bequest of such of a class of articles as the legatee may select he will be apparently entitled to elect to take the whole (). There has already been occasion to point out, that if a testator should happen to direct his executor to deliver a specified packet, part of the property of the deceased, to a particular legatee, unopened, the executor cannot, consist ently with his duty, comply with this direction (m).

Specific legacy of an unopened packet.

Where a testator bequeathed shares in companies, in which he was an original shareholder, to his son when he had completed his majority, it was held that the legatee, on attaining twentyone, was entitled to the dividends from the testator's death, and to have the shares fully paid up out of the residuary estate: Wright v. Warren, 4 De G. & Sm. 367. See also Clive v. Clive, Kay,

600. Re Box, 1 Hemm. & M. 552. See post, p. *1584, as to the exoneration of specific legacies.

(k) Jacques v. Chambers, 2 Coll. 435. Millard v. Bailey, L. R. 1 Eq. 378. Tapley v. Eagleton, 12 C. D. 683.

(1) Cooke v. Farrand, 7 Taunt. 121. Arthur v. Mackinnon, 11 C. D. 385. (m) See ante, p. *329.

*SECTION IX.

Of election.t

Although the limits of this treatise will not admit of a full discussion of the doctrine of election, it is necessary to state briefly the nature of the subject, and some of the leading principles established with respect to it.

It is a principle of equity, that a person, who accepts a benefit under an instrument, must adopt the whole, giving full effect Doctrine of electo its provisions, and renouncing every right inconsist- tion:

ent with it: If therefore a testator assume, to dispose of property belonging to A., and devises to A. other lands, or bequeaths to him a legacy, by the same will, A. will not be permitted to keep his own estate, and enjoy at the same time the fruits of the devise or bequest made in his favor, but must elect whether he will part with his own estate, and accept the provisions of the will, or continue in the enjoy ment of his own property, and reject that bequeathed (n).

It is not requisite, for the operation of this principle, that the testator should be aware that the property, of which he so undertakes to dispose, is not his own: The obligation of making an election will be equally imposed on the legatee, although the testator proceeded on an erroneous supposition that both the subjects of bequests were absolutely at his own disposal (o).

*The case, however, of an attempt by a testator to dispose of property which belongs to someone else must be distinguished from the case where a testator attempts by will to exercise a power of appointment and the appointment is ex facie void; in which case the will must be read as if the invalid appointment were not in it, and no case of election arises (p).

+ See American note at end of this Section.

(n) See Mr. Swanston's excellent notes to the case of Dillon v. Parker, 1 Swanst. 396, et seq., and the cases collected in 2 Rop. Leg. 482, et seq., 3rd edit. See also Wollaston v. King, L. R. 8 Eq. 165, 173, per James, V.-C., that the ordinary principle is, that if a testator gives property, by design or by mistake, which is not his to give, and gives at the same time to the real owner of it other property, such real owner cannot take both.

(0) Whistler v. Webster, 2 Ves. 370. Thellusson v. Woodford, 13 Ves. 221. Welby v. Welby, 2 Ves. & B. 199. Naylor v. Wetherell, 4 Sim. 114. Re Brooksbank, 34 C. D. 160. When it appears that the testator meant only to dispose of the property provided he had power to do so, no case of election arises: Church v. Kemble, 5 Sim. 525.

(p) Re Warren's Trusts, 26 C. D. 208, and compare Re Brooksbank, 34 C. D. 160.