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Widow

entitled

giving up the bonds ; for the devise is held to refer only to such property as is capable of being given by such a will (k).

*It was formerly important to consider the question of election as applied to the case of a widow entitled to dower.f But the length of time which has elapsed since the passing to dower: of the Dower Act, 3 & 4 Will. IV. c. 105, which applies to all widows married after January 1, 1834, and which in effect puts an end to questions of election in this matter, seems to make it unnecessary to consider in this edition the effect of the authorities as formerly established.

The chief provisions of the act are :

Sect. 4. “No widow shall be entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime or by his Will” (1).

Sect. 7. “A widow shall not be entitled to dower out of any land of which her husband shall die wholly or partially intestate when by the Will of her husband, duly executed for the devise of freehold estates, he shall declare his intention that she shall not be entitled to dower out of such land or out of any of his land.”

Sect. 8. “The right of a widow to dower shall be subject to any conditions, restrictions, or directions which shall be declared by the Will of her husband, duly executed as aforesaid.”

Sect. 9. “Where a husband shall devise any land out of which his widow would be entitled to a dower if the same were not so devised, or any estate or interest therein, to or for the benefit of his widow (m), such widow shall not be entitled to dower out of or in any land of her said *husband, unless a contrary intention be declared by his Will."

Sect. 10. “No gift or bequest made by any husband to, or for the benefit of, his widow of, or out of, his personal estate, or of, or out of,

(k) Allen v. Anderson, 5 Hare, 163. Maxwell 0. Maxwell, 16 Beav. 106. 2 De G. M. & G. 705.

+ See American note at end of this Section.

(1) A general devise is within the terms of this section : Lacey o. Hill, L. R. 19 Eq. 346, in which Jessel, M. R., dissented from dicta of Romilly, M. R., in Rowland v. Cuthbertson, L. R. 8 Eq. 466.

(m) As to the individual right of elec

tion of the next of kin of a widow, where the widow has not made her election in her lifetime: see Fytche v. Fytche, L. R. 7 Eq. 494. A gift of real estate upon trust to sell and to give the widow part of the proceeds in the shape of a part of the capital or of any income of the proceeds to be invested, is a gift of an “estate or interest in the land for the benefit of the widow.” Rowland v. Cuthbertson, L. R. 8 Eq. 466. Lacey v. Hill, L. R. 19 Eq. 346.

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any of his land not liable to dower, shall defeat or prejudice her right to dower, unless a contrary intention shall be declared by his Will.”

Where a testator makes two distinct bequests in the same will to Case of two be. the same person, one of which happens to be onerous quests, one oner: and the other beneficial, prima facie the legatee is beneficial.

entitled to disclaim the onerous legacy and to take the other (n). But, in such cases, it is a question of the intention of the testator to be gathered from the will, whether the legatee must elect to take all, or none, of the gifts in the will, or whether be may accept the beneficial gifts, and repudiate that which is burdensome (o). In cases, however, where onerous and beneficial property are included in the same gift, the legatee cannot disclaim the onerous and accept the beneficial unless the will manifests a sufficient intention of the tes. tator to the contrary. The gifts may be in substance distinct, though given by one sentence in the will (p).

The inquiry, as to what acts or acquiescence constitute an implied What constitutes election, must be decided rather by the circumstances

of each case than by any general principle : The questions are, whether the parties acting or acquiescing were aware of their rights; whether they intended election; whether they can restore the individuals affected by their claim to the same situation as if the acts had never been performed; or whether these inquiries are precluded by lapse of time (9).

*A party bound to elect is entitled first to ascertain the value of the funds; and for that purpose may sustain an action to have all necessary accounts taken (r). An election, under a misconception of the extent of claims on the fund elected, is not conclusive (s). Another subject of much doubt, with respect to the doctrine of

election, has been, whether the election to take against Effect of election.

the will induces the necessity of relinquishing the bene

an election.

(n) Guthrie v. Walrond. 22 C. D. 573. Syer v. Gladstone, 30 C. D. 614.

+ See American note at end of this Section.

(0) Talbot v. Radnor, 3 M. & K. 254. Warren v. Rudall, 1 J. & H.1. Guthrie 0. Walrond, ubi

8up. (p) Re Hotchkys, 32 C. D. 408. Guthrie o. Walrond, ubi sup.

(9) See Mr. Swanston's note to Dillon ». Parker, 1 Swanst. 332, and the cases there collected. Grissell v. Swinhoe,

L. R. 7 Eq. 291. Cooper 0. Cooper, L. R. 6 Ch. 15. L. R. 7 H. L. 53. Where there are several next of kin, each of them may have a separate right of election, and, neither the election of the majority, nor that of the heir or administrator, will bind the others. Fytche v. Fytche, L. R. 7 Eq. 494.

(r) 1 Swanst. 332, note. Pigott o. Bagley, M'Clel. & Y. 576, per Alexander, C. B.

(8) 1 Swanst. 332, note.

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fit given by it in toto, or only imposes an obligation to indemnify the claimants whom it disappoints; that is, as it is sometimes expressed, whether the principle, on which the doctrine of election proceeds, is forfeiture or compensation (1). The more recent authorities are said to establish, that compensation only is to be made (u).

(t) See the cases collected and dis- will to the party so electing, in proporcussed in the valuable note of Mr. Swan. tion to the value of the interests of ston to Gretton v. Haward, 1 Swanst. which they are disappointed : Howells 433; and that of Mr. Jacob to his edi. 0. Jenkins, 1 De G. J. & S. 617. Rogers tion of Husb. and Wife, vol. i. p. 566. V. Jones, 3 C, D. 688. But the en

(u) 1 Swanst. 442, note : But see Mr. grafted doctrine of compensation does Jacob's note, ubi supra, and Greenwood not apply to the case of a person elect0. Penny, 12 Beav. 403. The persons ing to take under the instrument which disappointed by the election to take gives rise to the election, but only to the against the will, are entitled to compen. case of taking against the instrument. sation out of the benefits given by the Re Chesham, 31 C. D. 466.

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+ General principles. He who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right in. consistent with it. 2 Jarm. on Wills 1; 2 Roper on Legs. 1567 ; 2 Redf. on Wills 352; Woerner on Admn. & 461; Hawkins on Wills 272; Theobald on Wills 8 ; Story Eq. Jur. § 1075 , Herbert v. Wren, 7 Cranch 378; Havens V. Sackett, 15 N. Y. 365 ; Hawley v. James, 16 Wend. 61 ; Salmon v. Stuyvesant, Id. 321 ; Persons v. Snook, 40 Barb. 144; Bloomer V. Bloomer, 2 Bradf. 339 ; Camden Mutual Insurance Association v. Jones, 8 C. E. Gr. 171 ; Stevenson v. Brown, 3 Gr. Ch. 503 ; Van Duyne «. Van Duyne, 1 McCart. 49 ; Smith v. Smith, 14 Gray 532 ; Hapgood v. Houghton, 22 Pick. 483; Hyde v. Baldwin, 17 Pick. 303 ; Smith v. Guild, 34 Me. 443; Weeks 0. Patten, 18 Me. 42; Hamblett v. Hamblett, 6 N. H. 333 ; Fulton v. Moore, 25 Pa. St. 468; White v. Brocaw, 14 O. St. 339 ; Carder v. Commissioners, 16 0. St. 353; Huston v. Cone, 24 O. St. 11 ; Young v. Pickens, 49 Ind. 23 ; Ridgway v. Manifold, 39 Ind. 58 ; Gorham

v. Dodge, 122 Ill. 528; Lessley v. Lessley, 44 III. 527 ; Morrison v. Bowman, 29 Cal. 357; Noe v. Splivallo, 54 Cal. 207 ; Kinsey v. Woodward, 3 Harring. 459 ; Waters v. Howard, 1 Md. Ch. 112; Hall v. Hall, 1 Bland Ch. 130 ; McElfresh 0. Schley, 2 Gill 181 ; George v. Bussing, 15 B. Mon. 558; Haydon v. Ewing, 1 B. Mon. 114 ; Smart v. Easley, 5 J. J. Marsh. 215 ; Gore v. Stevens, 1 Dana 204 ; Crosthwaight v. Hutchinson, 2 Bibb. 408 ; Collins v. Janey, 3 Leigh 389 ; Kinnaird r. Williams, 8 Leigh 400 ; Weeks v. Weeks, 77 N. C. 421 ; Flippin v. Banner, 2 Jones Eq. 450 ; Robertson v. Stephens, 1 Ired. Eq. 247 ; Williams v. Gray, 1 Coldw. 104 ; Deveaux v. Barnwell, 1 Desaus. 497; Bailey v. Boyce, 4 Strobh. Eq. 84 ; Vance v. Crawford, 4 Ga. 445. See also the notes to Streatfield v. Streatfield, Talb. 176 ; 1 White & Tudor's L. C. Eq. 504.

By the terms of the will itself the legatee may be required to elect between two gifts given him in the alternative, Storring v. Borren, 55 Barb. 595 ; Ridgway v. Manifold, 39 Ind. 58; and where two or more gifts are made to him in the same will, he cannot accept the advantageous one and the will and then claim, as one of the reject the burdensome one. Fulton v. testator's heirs, the legacy in lieu of Moore, 25 Pa. St. 468 ; Hyde v. Bald. dower given, in case of her renunciawin, 17 Pick. 308. So, where there is a tion, to his “heirs.” Jones 0. Lloyd, legacy to A., and a restriction of A. as 33 0. St. 572 ; Upham v. Emerson, 119 creditor to a particular fund for pay. Mass. 509. But the beneficiary under ment, Estate of Schrack, 16 Phila. 298; two inconsistent wills must accept the although a devisee is not precluded by whole of one or elect against it. Albert his acceptance of the devise in the will v. Albert, 68 Md. 352. from disputing the validity of a codicil Where testator's residuary estate which creates a charge on it. Wilkinson was devised to be sold with another v. Methodist Episcopal Church, 11 Stew. property in which the testator had (N.J.) 514. And he may take a legacy only a life estate with remainder in fee which is valid, and disregard the testa- to five of his seven children, and the tor's express direction that he convey

latter was to be sold under a power his share of the real property to others, referred to in the will of his father, and the will being insufficiently executed the proceeds were to be so divided that and void as to the real property. Jones all the shares should be equal, the five v. Jones, 8 Gill 197. So, he may accept children were not required to elect a gift as residuary legatee without between their interests under the devise being responsible for a legacy charged and their interests independent of the on other property devised to him will in the other estate. Pennsylvania which had been taken for the widow's Co. for Insurance &c. v. Stokes, 61 dower. Ward v. Ward, 15 Pick. 511. Pa. St. 136, affg. 2. Brewst. 590. And And if a conversion is directed, in where the will is void as to the real which he alone is interested, he may property and valid as to the personalty, elect to take the gift in its original a legatee may receive a legacy, and disform, whether land, Gest v. Flock, 1 regard the will as to the realty, and reGreen Ch. 108; Beadle v. Beadle, 2 ceive his share of it as one of the tesMcCrary 586 ; or money. Shedd 0. tator's heirs. Jones v. Jones, 8 Gill Carey, 11 B. Mon. 181. But the testa- 197. So, a legacy to A. as his full tor's widow cannot renounce the will portion ” will not cut off his right, as and take advantage of the conversion next of kin, in property of which tesdirected by it to change the real prop- tator died intestate. Ward v. Dodd, erty into personalty and so increase her 14 Stew. (N. J.) 414. And where distributive share. Estate of Cunning- there is a partial intestacy, and the ham, 137 Pa. St. 621.

widow was testator's sole heir, she Adverse claim as heir. If a devise may take as such and under the will fail by lapse or illegality or otherwise, also. Wall v. Dickens, 66 Miss. 655. a legatee who becomes entitled as heir Prior to the statute extending the to part of the failing devise is put to his effect of a will to all lands of the teselection, Hawley r. James, 16 Wend. 1; tator at his death, a devise of afterPersons Snook, 40 Barb. 144; acquired lands would not put the heir Bloomer 1. Bloomer, 2 Bradf. 339 ; to his election, Raines r. Corbin, 24 Ga. especially where he has been expressly 185 ; Gibbon 0. Gibbon, 40 Ga. 562 ; excluded from participating in the real Chapin v. Hill, 1 R. I. 446; but see, estate by the void devise. Thompson contra, Philadelphia r. Davis, 1 Whart. v. Carmichael, 1 Sandf. Ch. 387. So, 490 ; Beall v. Schley, 2 Gill 181, the widow cannot elect to take against Adverse title. One who accepts a leg

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acy or devise under a will cannot claim as adverse owner property which the testator has devised to another. Weeks v. Patten, 18 Me. 42; Cox v. Rogers, 77 Pa. St. 160. So, if the legatee is tenant or remainderman in tail of other property devised, Lewis v. Lewis, 33 Pa. St. 66 ; or holds a dower right as widow of the testator's father, Snook v. Snook, 16 Stew. (N. J.) 132 ; or is the beneficiary of an insurance policy bequeathed by the testator to others, Weeks v. Weeks, 77 N. C. 421 ; or as a fund for payment of the legatee's own legacy. Forto. Edwards, 5 Stew. (N. J.) 641. But such insurance money may form part of a fund be. queathed to the widow for life without being so included in the residuary estate (constituting the remainder) as to deprive her of her absolute property in it. Matter of Hayden, 54 Hun 197; 8. C. 1 Connoly 454. The necessity for election is not done away by the fact that the testator believed himself to be the owner of the property, Isler v. Isler, 88 N. C. 581 ; or expected to become the owner under the will of a testator who outlived him, Barbour o. Mitchell, 40 Md. 151 ; or that the legatee's remainder in tail had been barred. Tiernan v. Roland, 15 Pa. St. 429.

The election to take under the will constitutes a good title by estoppel against the adverse title.

Allen 0. Boomer, 82 Wis. 364 ; Lewis v. Lewis, 33 Pa. St. 66.

Where a devisee owns an undivided interest in fee simple, and the whole property is devised to him for life with remainder over, he cannot take the entire life estate and assert his former title against the remainder. Penn o. Guggenheimer, 76 Va. 839 ; Brown v. Ward, 103 N. C. 173. So, where a portion of the property devised for life belongs in fee to the devisee, Horton v. Lee, 99 N. C. 227. Conversely, he cannot take a remainder in the whole and

dispute the gift of a life estate in the whole to another. Smith v. Guild, 34 Me. 443. So, the devisee must elect if he owns an undivided share, and the whole is devised to him and others in common, Brown v. Brown, 42 Minn. 270; or if other property is bequeathed to him, and the property in which he is part owner is devised to others. Watson v. Watson, 128 Mass. 152. So, where the estates of both husband and wife are bequeathed by the wife in pursuance of an agreement between them, and the husband accepts a legacy under the will. Allen v. Boomer, 82 Wis. 364. So, if the testator devises to his sons in severalty tracts of land which they hold as tenants in common by descent from their mother, with direction that they release to one another, their acceptance of the devises will perfect their titles in severalty. Preston v. Jones, 9 Pa. St. 456. So, if property is devised to one for life with remainder over, and he is the owner in fee of a portion of the property devised, his acceptance of the devise will make the title of the remainderman good as against him, Hibbs 0. Insurance Co., 40 O. St. 543; Reaves 0. Garrett, 34 Ala. 558 ; but not as against a bona fide mortgagee. Hibbs 0. Insurance Co., ubi supra. In like manner where the will disposes of the whole community property of husband and wife, and the surviving wife accepts the provisions of the will, she thereby relinquishes her interest in the community property. Matter of Stewart, 74 Cal. 98; Moss v. Helsley, 60 Tex. 426. The fact, however, that the testator has some interest in the property is important (as hereafter shown) in determining his intention to put to an election.

The rule barring adverse claims by a legatee or devisee to other property bequeathed or devised to others applies to a claim under a parol gift of the testator, Witherspoon v. Watts, 18 S. C.

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