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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 legate of & articles of the same description, as for instance if be

number of 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 Specific legacy of an unopened packet, part of the property of the deceased, to a parpacket.

ticular legatee, unopened, the executor cannot, consist. ently with his duty, comply with this direction (m). Where a testator bequeathed shares in 600. Re Box, 1 Hemm. & M. 552. See companies, in which he was an orig. post, p. *1584, as to the exoneration of inal shareholder, to his son when he specific legacies. had completed his majority, it was held (k) Jacques v. Chambers, 2 Coll. 435. that the legatee, on attaining twenty- Millard v. Bailey, L. R. 1 Eq. 378. one, was entitled to the dividends from Tapley v. Eagleton, 12 C. D. 683. the testator's death, and to have the (1) Cooke v. Farrand, 7 Taunt. 121. shares fully paid up out of the residuary Arthur v. Mackinnon, 11 C. D. 385. estate : Wright v. Warren, 4 De G. & (m) See ante, p. *329. Sm. 367. See also Clive v. Clive, Kay,

.

*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 :t 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 enjoyment 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 (6) Whistler 0. Webster, 2 Ves. 370. Section.

Thellusson 0. Woodford, 13 Ves. 221. (n) See Mr. Swanston's excellent Welby v. Welby, 2 Ves. & B. 199. notes to the case of Dillon v. Parker, Naylor v. Wetherell, 4 Sim. 114. Re 1 Swanst. 396, et seq., and the cases col- Brooksbank, 34 C. D. 160. When it lected in 2 Rop. Leg. 482, et seq., 3rd appears that the testator meant only to edit. See also Wollaston v. King, L. R. dispose of the property provided he 8 Eq. 165, 173, per James, V.-C., that had power to do so, no case of electhe ordinary principle is, that if a testa- tion arises : Church o. Kemble, 5 Sim. tor gives property, by design or by mis- 525. take, which is not his to give, and gives (p) Re Warren's Trusts, 26 C. D. at the same time to the real owner of it 208, and compare Re Brooksbank, 34 other property, such real owner cannot C. D. 160. take both.

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inadmissible.

It is necessary, however, that the intention of the testator, to disTestator's inten- pose of the property which is not his own, should be tion must be clear clear: the intention must appear by demonstration plain, on face of will. Parol evidence by necessary implication (9). And it must appear, as

it should seem, upon the face of the will : for it seems now to be established that parol evidence is inadmissible for the purpose of showing it (r).

*The doctrine of election is founded on the presumption of a general intention that every part of an instrument shall take effect, and the presumption of such general intention may be rebutted by an inconsistent particular intention apparent in the instrument (s). The rule of not claiming by one part of an instrument in contradiction to or while refusing to comply with another part, has exceptions; and the ground of exception seems to be a particular intention denoted by the instrument, different from that general intention, the presumption of which is the foundation of the doctrine of election (). It is on this ground that it has been held, that the doctrine of election does

no

(9) Rancliffe v. Parkins, 6 Dow, 179, by Lord Eldon. Johnson o. Telford, 1 Russ. & M. 244. Crabb v. Crabb, 1 M. & K. 511. Dillon 0. Parker, in Dom. Proc. 7 Bligh, N. S. 325. S. C. 1 Cl. & F. 303. Clementson v. Gandy, 1 Keen, 309. Dummer 0. Pitcher, 5 Sim. 35: 2 M. & K. 262. See the cases collected in 2 Rop. Leg. 498, et seq., 3rd edit.

See also Langslow v. Langslow, 21 Beav. 552. Tomkins v. Blane, 28 Beav. 422. Honywood v. Foster, 30 Beav. 14. Re Fowler's Trusts, 27 Beav. 362. Maddison v. Chapman, 1 Johns. & H. 470. Stephens 0. Stephens, 3 Drew. 697. 1 De G. & J. 62. Wintour v. Clifton, 8 De Gex, M. & G. 641. Box v. Barrett, L. R. 3 Eq. '244. Cooper v. Cooper, L. R. 6 Ch. 15. L. R. 7 H. L. 53. Orrell o. Orrell, L. R. 6 Ch. 302. Wilkinson o. Dent, L. R. 6 Ch. 339. Synge v. Synge, L. R. 9 Ch. 128. Where a testator, being part owner of an undivided in terest in a particular property, devised that property specifically to his coowner, it was held that his intention was to devise the entirety and that a

case of election arose against his coowner who took a beneficial interest under the will. But where the devise is by general words, such as “all my lands and hereditaments," or the like,

case for election arises, because there is other property of the testator's sufficient to satisfy the devise itself: Padbury v. Clark, 2 Mac. & G. 298. Fitzsimons 0. Fitzsimons, 28 Beav. 417. Whitley 0. Whitley, 31 Beav. 173. Howells 0. Jenkins, 2 Johns. & H. 706. Miller o. Thurgood, 33 Beav. 496.

(7) Stratton v. Best, 1 Ves. 285. Doe V. Chichester, 4 Dow. 65, 76, 78, 89. Clementson 0. Gandy, 1 Keen, 309. See the cases, contra, collected in the notes to Dillon v. Parker, 1 Swanst. 402, 403. Pickersgill o. Rodger, 5 C. D. 163, 171, in which case, however, Clementson v. Gandy and the other authorities to the same effect were not cited.

(8) Re Vardon's Trusts. 31 C. D. 275.

(t) 1 Swanst. 404, note.

cases doctrine of elec

not apply to the case of an interest which a married woman takes with a restraint on anticipation (u), whether the question of election is raised upon the face of two clauses in the same instrument (Q), or whether it is raised by a married woman taking under a different instrument and refusing to comply with some covenant contained in the instrument, under which she takes the property with the restraint on anticipation (y).

The doctrine of election is applicable to interests To what immediate, remote, contingent, of value, or not of tion applicable : value (2)

Since election arises when a testator disposes of his own property and at the same time affects to dispose of property which belongs to someone else, it follows that the rule as to election is only applicable as between a gift under a will, and a claim dehors the will and adverse to it, and not as between one clause in a will and another clause in the same will (a).

The property dehors the will must be such, that the person taking under the will can give it up or make compensation out of it to those disappointed of the benefits intended for them under the will ; otherwise no case of election or compensation arises ().

It must, however, be observed, that the doctrine does not preclude a party claiming by the will from enjoying a derivative interest, to which he is entitled at law, under a legal estate taken in opposition to the will : Thus a man may be tenant by curtesy of an estate tail, held by his wife in opposition to a will under which he accepts a legacy (c).

Nor is that doctrine applicable as against creditors taking the benefit of a devise for payment of debts, and also enforcing their legal claim upon other funds disposed of by the will (d).

Previous to the Wills Act, there were some questions which arose

(u) It should be noted that Willoughby C. D. 234. Bizzey v. Flight, 3 C. D. v. Middleton, 2 J. & H. 344, is in effect 269. overruled by Re Vardon's Trusts, ubi (6) Re Chesham, 31 C. D. 466. sup.

(c) Cavan v. Pulteney, 2 Ves. 544. (x) Re Wheatley, 27 C. D. 606. S. C. 3 Ves. 384. Dillon v. Parker, 1 (y) Smith v. Lucas, 18 C. D. 531. Swanst. 408, note. See also Brodie v.

(2) Wilson o. Townshend, 2 Ves. 697, Barry, 2 Ves. & B. 127 ; and Mr. Jacob's by Lord Loughborough. Webb 0.

note to his edition of Roper, Husb. & Lord Shaftesbury, 7 Ves. 481.

Wife, vol. i. p. 30. (a) Wollaston v. King, L. R. 8 Eq. (d) Kidney v. Coussmaker, 12 Ves. 165. Wallinger o. Wallinger, L. R. 9 136. 1 Swanst. 408, note. 1 Pow. Eq. 301. Burton v. Newbery, 1 Dev. 437, Jarman's edit.

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as to whether an heir-at-law was put to his election, which cannot

arise in the case of wills made since that act. Thus heir-at-law :

the doctrine of election was not applicable, where real property was assumed to be devised by a will not executed so as to pass it, and by the same will a legacy was given to the heir : In such a case the heir might take the legacy, without making good the devise (e) ; unless the imperfectly executed will contained an express condition to that effect annexed to *the legacy (f). Under the Wills Act, however, the requisites for a will of realty and personalty are the same.

Again, previous to the Wills Act a testator could not effectively devise after-acquired lands, although in terms he purported to do so. But in such a case the heir-at-law taking benefits under the will was held to be put to his election by reason of the intention appearing in the will (g), even though nothing was bequeathed to him which would not have descended to him as heir, if no will had been made (h).

The principle, however, on which these cases were decided, seems still to apply, the principle being, that the court will put the legatee to his election, wherever the intention of the testator is expressed in an instrument at which the court is entitled to look, but not where the intention is expressed in an inoperative instrument. Thus the legatee will not be put to his election where the devise of land is invalid on account of a want of capacity to devise by reason of infancy or coverture (i).

Where, however, a testator domiciled in England devises “all his real and personal estates, whatsoever and wheresover," and bas Scotch heritable bonds, which do not pass by the will, for want of certain formalities required by the Scotch law, the Scotch heir is not put to his election, but may take English property under the will without

(e) Cary v. Askew, 1 Cox, 241. Sheddon o. Goodrich, 8 Ves. 481. Brodie o. Barry, 2 Ves. & B. 127, 130. Gardiner v. Fell, 1 Jac. & Walk. 23. 1 Swanst. 406, note to Dillon v. Parker. See also Seaman o. Wood, 24 Beav. 372.

(f) Boughton v. Boughton, 2 Ves. Sen. 12.

(g) Churchman v. Ireland, 4 Sim. 520. Schroder v. Schroder, Kay, 578. 24 L. J. Ch. 510. Hance v. Truwhitt, 2 J. &

H. 216. But see Johnson o. Telford, 1
Russ. & M. 244.

(h) Schroder 0. Schroder, Kay, 578. 24 L. J. Ch, 510.

(1) Hearle o. Greenbank, 3 Atk. 695, 715. Rich v, Cockell, 9 Ves. 369. 1 Swanst. 406, n. The rule is the same where a will, valid at the time of its execution, ceases to be valid by determination of the coverture and want of republication : Blaiklock 0. Grindle, L. R. 7 Eq. 215.

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