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There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501827 THE EQUITABLE DOCTRINE ELECTION. BY GEORGE SERRELL, M.A., LL.D. (Lond.), OF edjcoin's inn, babbistbe-at-law. LONDON: STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, 1891 ^^j;-^? LONDON : PEINTED BY 0. P. EOWOETH, GEEAT HEW STEEET, PETTEE LANE, E.O. PEEFACE. This little book is an attempt at stating the law on the Doctrine of Election with greater fulness than is possible in general treatises on Equity, where, although the leading features can be given, little more can be done in the way of stating details than to supply references to the cases in which those details may be found elaborated. The subject, it is conceived, is one which may conveniently be treated by way of monograph, not being a branch of any large sub-division of Equity, such as the Law of Trusts or the Law of Mortgage, but resting upon a single independent principle, and con- sisting of the working out of that principle to its logical conclusions. Although the main outlines have long been settled, yet important modifications have been effected, and doubtful questions of great interest have been deter- mined, by various recent decisions, some of which are here made the subject of special examination and comment. a2 IV PEEFACE. It has not been thought desirable to treat, in this volume, of Election in regard to taking property as real or personal, that being merely part of the Law of Conversion, which is itself a branch of the Law of Trusts. The Table of Cases gives the references to contemporaneous reports. It also supplies the dates of the Cases, so that it will be easy by reference to it to consider in their chronological order any decisions which it is desired to com- pare together. GEO. SERRELL. 9, Stone BurLBmos, Lincoln's Inn. January, 1891. CONTENTS. CHAPTEEI. THE DOCTEINE OF ELECTION, AND THE PEmCIPLE ON WHICH IT RESTS : WITH GENEaAl OBSEBTATIONS. PAOE The doctrine of election - - . i Examples - _ _ 2 An equitable doctrine - - - 3 Now a legal doctrine also - - . _ 3 Two documents treated as one for the purpose of election 5 On what principle the doctrine depends 6 Discussion of the doctrine of impUed condition - 8 As to an implied intention that there shall be election - 11 There need not be a conscious disposal of another's property 14 Wide application of the doctrine of election - 16 As to a remaiuder after an estate tail - 17 Election raised by gift of property to one who would have taken it had there been no gjft - - 18 Note to page 9 - - 20 CBAPTEE n. ELECTION EXCLUDED BY THE EXPEESSION OF A CONTKAIIY INTENTION. Exclusion of election by expressed intention to the contrary 22 Ah by gift without power of anticipation - - - 23 Or by gift in. Heu merely of a partial interest - - - 23 Who may manifest the contrary intention- - - - 25 VI CONTENTS. OHAPTEE m. WHAT WOEDS IMPLY A DISPOSITION OP AlfOTHEE PERSON'S PROPERTY. Sect. I. — General principles ; and herein of the question whether election is raised by erroneous recital, PAOE Disposal of another's property must be cleaxly proved - 27 But words must have their natural eflect - - - 29 Presumption against disposal of another's property - 29 Intention must be expressed - - - - 29 Any disposition iaconsistent with, rights of beneficiaries raises election - - . _ . . 30 Whether election is raised by erroneous recital - - - 31 For raising election by recital - - - - . 33 Against raising election by recital - - 36 Mistaken impression may be shown without recital - - 40 Sect. H. — Consideration of special classes of cases. Where the testator has a partial interest - - - 40 Where the testator's iaterest cannot satisfy Ms disposition - 42 Deyises of estates tail - _ _ _ 42 Devises of reversionary interests . _ _ 43 Disposition of a joint interest - - . . 45 Gfift where the donor has an insufficient interest - 45 Where election depends on the value, evidence may (prob- ably) be given of the value - - - - - 46 Intention to dispose of after-acquired property - - - 48 General bequests . - _ _ _ _ 48 Disposition of property of a special description - - - 50 Two properties given together ------ 51 General words sometimes carrying settled property - - 52 But not usually - -'- - _ . -52 Gift by the person owning part, held to be gift of the whole 53 Though described as " my " house or land - - - 53 A fortiori if not - - - - _ . 54 iSecMs, of gift of my " property " _ _ _ - 56 Gift of property which is subject to a rent-charge is not a gift of it free from that rent-charge - - . 57 CONTENTS. vii PAOE Gift of property over wHch. another person ias a general power of appointment - - - _ _ _ gO Gift of property previously settled by the donor- - 60 Where the settlement covers aU the donor's property - - 61 CHAPTEE IV. INEITECTUAI, ATTEMPTS TO DISPOSE OP ONE's OWN PEOPBBTY. Cases of ineffectual disposition hy owner, mostly obsolete 63 As devise of unsurrendered copyholds - - - - 63 Devise of after-acquired lands - - - - 65 Dower ---___. .65 Preebench - ----- 66 Old law still partially in force ----- 66 General principle — -is the testator's disposition of his real estate incompatible with dower ? - - - 66 Modem tendency against putting widow to election - - 67 Dispositions not inconsistent with dower - - - 68 Devise to another person ------68 Annuity or rent-chaxge to widow - - - - 69 Devise in trust for sale - - - _ _ _ 70 Directions for equal division between widow and others - 70 Devise to wife of part of property out of which dowable - 71 Dispositions inconsistent with dower - - - 72 Power of leasing - - - - - 72 Where widow has no right to actual land - - 73 Power of management - - - - - 74 Other powers or trusts inconsistent with dower - - - 74 Election, whether raised by a settlement not blading on one of the parties -------- 75 Depends on whether one benefit is the consideration for the other - _ - - - 76 Gift in substitution for an existing right - - - - 77 Election raised by satisfaction _ . - - 77 These cases belong to the law of satisfaction - - - 79 If not satisfaction but performance, no election - - - 80 VIU CONTENTS. CHAPTER V. ELECTION IN CASES OF APPOINTMENTS. PAGE Election applies to appointments as well as to gifts - - 81 Appointment void because made to a non-object - - 82 Or out of time ... - - 82 Or inconsistent with a previous appointment - - 82 Or made by deputy --------83 How, as to an appointment violating the rule against per- petuities - _ _ - 83 Appointment which might have taken effect - - 86 Appointment only made conditionally on there being power to make it - - 87 No election except where one claim is dehors the instrument 87 There must be free disposable property of the appointor ,- 89 Or subject to a general power of appointment by him - 90 Except in case of successive inconsistent appointments - 92 Valid appointment followed by invalid trust or direction - 93 CHAPTER VI. CASES IN WHICH THERE IS NO ELECTION. Invalid gifts taken pro rum acripto - - - - 94 As, formerly, devise of realty by infant, Hearle v. Green- bwnk _-_ -..___ 94 Or devise insufficiently executed to pass land - - - 95 SecuB, if express proviso for election - - - - 95 Statutory formality not dispensed with - - - - 96 Win of married woman made without husband's consent - 97 Invalid trust or direction superadded to a valid appoint- ment, taken ^ro non scripto - - - _ 99 Carver v. Bowles - _ _ 99 Reasonableness of Carver v. Bowles questioned - 101 Special principle suggested in White v. Wliite - - - 102 White V. White discussed - - - - - 103 Appointment to A. if he conveys something to B., otherwise toB. - - - - - 105 Election not raised against creditors - - - - 106 Nor by gift to A., which never reaches bitn - _ io7 CONTENTS. IX PAGE Nor by invalid deed though confirmed by will - - - 107 Nor after election raised and compromised _ - _ 107 Nor by a gift -which, if given up, reverts to the donee — as to heir on intestacy - - . - . 109 Nor between a direct and a derivative interest - - 111 Unless the derivative interest was vested before the direct one accrued - - _ . . _ 112 Election where the two interests have become vested in different persons - - - - 113 Is there election between two interests, one of which is in- alienable? - - - - 114 Wbere a will is made inoperative by subsequent events - 115 Lee V. Egremont - _ . _ 116 No election for the benefit of a person taking by lapse - 117 CHAPTEE YH. WHAT KNOWIEDGE IS ITECESSAEY ON THE PABT OF THE PEKSON WHO HAS TO ELECT. What knowledge is necessary to make an election by acts binding - _ _ - 119 Three requisites - - - 119 Presence of all three not always mentioned - - - 120 Ist requisite — ^knowledge of the two rights 122 2nd requisite — ^knowledge of the need to elect - 123 Wbether knowledge of the equitable rule is implied - 123 Whether knowledge of the question of election is enough - 126 3rd requisite — knowledge of the values 127 Election before knowledge of the values may be retracted - 128 Might not one elect without having the values ascertained ? 128 Burden of proof - . . - 129 Doubtful right will be determined . - - 129 Of an action to ascertain the values - - 129 Long receipt of one interest not conclusive - - 130 Express election - - - 130 CHAPTER Vm. WHAT ACTS ON THE PART OF A PEBSON WHO HAS THE KEQUISITE KNOWI/EDGE WILL AMOmSTT TO ELECTION. Actual election a question of intention - - - 132 Express declaration - . - _ - - 132 a 5 CONTENTS. FAQB 132 Acting as owner of the property given Acting as owner of one's original property - - 133 Special acts amounting or not to election - - - - 134 "Electing to take both" 135 After electing to take one, too late to elect the other - - 139 So, perhaps, after position of others injuriously affected - 140 Election under mistake _ - - - - 141 Each person elects separately ------ 141 CHAPTER IX. OF DYING WITHOUT HAVING MABE ELECTION. Eight to elect surrives to representatives - - - - 143 Land given in satisfaction of debt ----- 143 Whether representatives bound, though no binding election , made by predecessor ------ 144 CHAPTER X. or DELAY AND OF WAIVER. Eight to elect — ^whether lost by delay - - 146 Effect of delay on right to call for election - - - 147 Where one interest is stUl reversionary - - - 147 Delay may bar account of rents and profits - - 147 No waiver by act done alio intuitu - - 148 Full knowledge needed - - - 149 CHAPTER XI. QUESTIONS ABISING IN OASES OF ELECTION TO TAKE AGAINST THE DOCITMBNT, AND CHIEFLY OF COMPENSATION. Liability of person taking against instrument - - 150 Not forfeiture, but compensation - - - - - 150 Compensation a pecuniary right - - - 153 Compensation shared in proportion to losses - - 156 Past receipts to be accounted for - - 156 How the person to be compensated takes - - - - 158 Compensation independent of other benefits - - 160 Compensation out of a life interest - - - 161 Eight to compensation, when complete and when inchoate - 162 EuU compensation by any means is enough _ - . iga CONTENTS. XI PAGE Of compensation in case of election against a Crown grant- 163 Compensation not lost by death. - - - - - 164 What Hen or charge for compensation - - - - 164 Of destruction of a general chance - - _ - . 165 Compensation out of an inalienable interest not required 165 Note A. (Lord St. Leonards on Forfeiture and Compen- sation) ---.___- 166 Note B. {Howelh v. Jenkins. Illustration of the mode in ■which the right to compensation is worked out) - - 167 CHAPTER Xn. QUESTIONS ARISING IN CASE OF ELECTION TO TAKE TTNDEE THE DOCUMENT. Election to conform to the document, how carried out - 170 Question of election in case of am inalienable interest 170 In re Lord Chesham _____.- 173 Whether compensation has been applied to election to take under a document - - - - - 174 Equitable interests - - _ . _ _ 177 Suggested conclusions .___-- 179 As to analogy of In re Yardmi's Trusts - - - - 180 Legacy duty - ..__--- 181 Succession duty - _ _ - - - 183 CHAPTER Xin. OF ELECTION BY INFANTS OB BY PERSONS OF UNSOUND MIND. Election in case of infant, formerly postponed - - - 184 Afterwards, reference to ascertain what was for infant's benefit - - . _ - - 184 How rents and profits go till election _ - - - 185 Reference sometimes dispensed with ----- 187 Persons unborn - - - - - loo In case of lunatic, committee elects ----- 188 Or Court 188 CHAPTER XIV. OF ELECTION BY MARRIED WOMEN. Married women under new law - - - - - 190 Old law— married woman could elect - - - 190 Separate examination, whether required - 191 Xii CONTENTS, PAGE •NT 4. . , „ - 192 Not now - - - - - Eeference usual to ascertain what is for her benefit - - 194 But semife this is not essential - - - '_ " Whether a married woman's election can prejudice her husband - - - " " " " Married woman taking a benefit in consideration of settle- ment by her - - - - Camphell v. Ingilby ---- - - i.a i . conscious nccessary, for a case of election to arise, that the another's testator Or settlor should know that he is making a prope y. ^-jjgpQgj^jQj^ which he has no right to make. When Lord O'Hagan speaks, above, of its being found that the testator " has expressed his intention of disposing of what belongs to another," the me,aning is that two separate and independent facts are found — (1) that the testator has expressed his intention of disposing of a specific thing ; and (2) that that specific thing General Principles of Election. 15 belongs to someone other than the testator. AH that is necessary is a disposition which, as a matter of fact (whether or not the disposer knows it), he has no right to make — which, if it took effect, would infringe on the right of another person — and an independent gift to that other person. Thus, in a question of election raised hy a gift inconsistent with dower (which, as remarked in Gibson t. Gibson, 1 Drew. 42, is governed hy precisely the same rules as other eases of election), it is not needful that the will should show " that the testator had in his mind her " [i'.e.,the wife's] " right to dower, and meant to exclude it; the rule rather is that it must appear from the will that the testator intended to dispose of the property in a manner inconsistent with the wife's light to dower." Cranworth, L. C, in Parker v. Soicerhj, 4 De G. M. & G. 321, p. 325. " If," says Lord Hatherley, in Cooper y. Cooper, 7 L. E., H. L. 63, p. 71, " you find him who is the real owner of the property at the same time taking a benefit under the will which has erroneously endeavoured to dispose of Ms property, then he must give effect to that inten- tion though founded in error." The principle of Forrester v. Cotton, Amb. 388, that the doctrine of election is only applicable to a wilful, and not to a mistaken, disposal of the property of another, has long been imiversally set aside. As far ago, for example, as 1800, it was held that a case of election arose out of a bequest by a husband of a legacy due to his wife, which he had never reduced into posses- sion, but evidently supposed to be his own — the doctrine. 16 General Principles of Election. executrix having expressed her readiness to pay him, and retained it in her own hands, by arrangement with him, paying him interest on the amount. No one thought it in the least degree necessary to sug- gest that he knew, when he bequeathed it, that he had no power to do so. Blount v. Bestland, 5 Ves. 515. And earlier yet, in 1794, it was remarked in the leading case of Whistler v. Webster, 2 Yes. jun. 367, p. 371, " whether he thought he had the right, or knowing the extent of his authority, intended, by an arbitrary exertion of power, to exceed it, no person taking under the will shall disappoint it." wideap- The doctrine of election is of sweeping applica- plioation . . . ... of the tion — it extends to " mterests immediate, remote, contingent, of value or not of value." Wilson v. Townshend, 2 Yes. jun. 693, p. 697 ; and see Sowells V. Jenkins, 1 De G". J. & S. 617, and in 'Note'B.,post, at end of Chap. XI. If a person would otherwise be put to election, it makes no diiference that what is given to him " is precarious, nothing being given to him if he dies before twenty-one, and if after, then but an estate for life." Btreatfield v. Streatfield, Cas. t. Talbot, 176. Election will be raised by any gift, however unequal to an existing interest, if the intention be shown that the one shall only be taken on the terms of giving up the other. Byde v. Byde, 2 Eden, 19, p. 24. And although the person electing may be unable — e.g., owing to some imperfection in the execution of an instrument — to take all that was meant to be given him by it, he must none the less. General Principles of Election. 17 if lie chooses to take under it, give up all rights inconsistent with it. Neirman v. Newman, 1 Bro. Ch. 186 ; compare Nottleij v. Palmer, 2 Dr. 93. So also, if another person has elected to take against an instrument, and has thereby rendered it impossible for those who take under it to take all that they were intended to have, they must still elect. Reynolds v. Torin, 1 Euss. 129. At one time, indeed, it was doubted whether As to a election arose where the interest already owned was after an merely a remainder after an estate tail, but it may now be considered as settled that this special case presents no exception. In Bor v. Bor, 3 Bro. P. C. 167, a testator purported to devise lands which were entailed on John and the heirs of his body, remainder to Gerard and the heirs of his body, and he gave to Gerard lands of his own. Lord Hardwicke considered it doubtful whether Gerard could be put to election, and whether, if he would take the lands devised to him, he would be required to bar his interest in the lands entailed, seeing that, if he did, John might stni deprive the act of aU effect. And therefore it was further doubted whether, in the event of John dying without issue after the testator's death, and Gerard coming in under the entail, he would even then need to elect, as " in cases of wills, things are to be taken as they stood at the testator's death." The view to which Lord Hardwicke here appeared incHned was followed in the decision of Stewart v. Eenry, Vem. & Sc. 49 ; but in Morgan v. Morgan, 4 Ir. Ch. E. 606, (also reported as Mahon v. 18 General Principles of Election. Morgan, 6 Ir. Jur. 173), Brady, L. 0. of Ir., dis- approved of tlie doctrine, and held that where a testator devised lands to Henry, and devised to Mary certain lands in which Henry had an estate in re- mainder after certain estates tail, Henry must elect between the devise to him and the remainder. In support of this decision were cited Lord Hardwicke's decision in Graves v. Forman (cited 3 Ves. p. 67), and a dictum in Sighway v. Banner, 1 Bro. Ch. 584, in each of which cases one of the two interests between which the question of election arose was a gift in re- mainder after an estate tail; in Graves v. Forman the interest given by the testator was such a remainder, and in Highway v. Banner (as in Bor v. Bor, Stewart V. Senry, and Morgan v. Morgan) the interest claimed against the instrument of disposition was such a remainder, and Sewell, M. E., thought the remain- derman clearly liable to elect. The opinion of Mr. Swanston in his notes on election had been to the same effect. So also in Wehl v. Shaftesbury, 7 Ves. 480, there was a devise to F. in remainder after an estate tail, and F., claiming benefits against the wUl, was held bound to elect. Election Even before the Act for the amendment of the raised by gilt of Law of Inheritance (3 & 4 Will. 4, c. 106), an heir to one who could be put to his election by a devise to him of taken it property which, had it not been devised, would have been no descended to him as heir {Welby v. Welby, 2 V. & B. ^ ■ 187 ; Schroder v. Schroder, Kay, 578) ; though in Hodgson v. Merest, 9 Price, 556, p. 573, a case of a customary heir, the Lord Chief Baron greatly General Principles of Election. 19 doutted if tliis was so. Since the above Act, under which the heir takes the property devised to him as devisee, and not by descent, it would be still clearer that he is to be put to election. In Rich v. CockeU, 9 Ves. 369, p. 374, it is reasonably suggested, arguendo, on the analogy of the old cases as to an heir, that a beijuest by a wife to her husband of personalty belonging to her for her separate use, which, if not bequeathed at aU, he would take as her husband, is a sufficient gift to him to put him to election, if her wiU makes dispositions iuconsistent with his rights. Where a person devises property as her own, which she would have no right at all to devise if an earlier disputed will were valid, this is, of course, a devise inconsistent with that will, and her devisee cannot Talidly claim to take under her devise, and also to take a legacy given him by the earKer will. Sadlier V. Butler, 1 Ir. E. Eq. 415. It may be added, that a beneficiary under an instrument may be put to election not merely by a disposition of property of his, but by a disposition of a right of his, such as the guardianship of his child. If, knowing the facts, and knowing that he is making an election [Be Manneville v. Be Manneville, 10 Ves. 62, p. 63), he accepts the gift under the will, this will be a submission to allow the guardianship to go according to the directions. Blahe v. Leigh, Amb. 306. And the same thing may arise, " not only if he accepts a bounty given to himself, but if he avails himself of a bounty given for the maintenance of 20 General Principles of Election. his children, which he must otherwise have provided at his own expense." Lyons v. Blenkin, Jac. 245, p. 257. Note to page 9. An instance of the former kind of conditional gift is afEorded by Attorney-General'^ . ChrisCs Hospital, 3 Bro. Ch. 166 — a devise of an estate to the hospitalon condi- tion of maintaining six children from a certain parish. Here, of course, the condition was not a thing to be done before accepting the gift, but a liability which attached to the acceptance — "the hospital having taken possession of the estate was bound to perform the con- dition." An instance of the latter kind was Roundel v. Currer, 2 Bro. Ch. 67. There an estate was devised to a man on condition of his sufflering a recovery of an estate of which he was tenant in tail, and conveying it to certain uses. The devisee entered on the devised estate, and did various acts showing an intention to comply with the condition, but died without having actually done so ; it was held that the material question was, whether he had done all the acts he must do in order to entitle himself to the devised estate — that he had not, and that accordingly the estate devised to him did not vest in him, and his estate tail remained un- affected. The undesirabihty of referring to conditional gifts iu explanation of election, on account of the uncertainty in the construction of such gifts, is not iaaptly illustrated by the case of The Earl of Northumherland v. The Earl of Aylesford, Amb. 540, [also reported as The Earl of Northumherland v. The Marquis of Granby, 1 Eden, 489], affirmed on a re-hearing, The Duke of Northumherland V. Lord Egremont, Amb. 657. There benefits were left by a father to a son, but accompanied with a proviso making the gifts conditional on the son releasing certain claims on the estate, and should he refuse or neglect to do so, the gifts to him were to be void. The son Hved General Principles of Election. 21 fourteen months after his father's death and never executed a release, but he exercised acts of ownership over the property given to him, and was held to have thereby shown an intention to abide by the wiU. But while the first judgment to this effect rests on the prin- ciple that "the legacies being then given on condition precedent, it makes the material question " simply whether the devisee had taken the legacy ; the second judgment says, " this is not a case within the rule of condition precedent, which requires strict performance." It may be doubted whether this case is consistent with the judgment of the House of Lords in The Duke of Montagu v. Lord Beaidieit, 3 Bro. P. C. 277. ( 22 ) CHAPTEE II. ELECTION EXCLUDED BY THE EXPRESSION OF A CONTRARY INTENTION. Exclusion Before considerinsr in detail the question in what of election _ ° _ . hyex- cases a necessity arises of electmg between two pressed in- tention to benefits, the one under and the other against an trary. instrument, it is well to observe that as the necessity only arises in any case in compliance with a " general intention " that all the dispositions of the instrument shaU take effect, it may be excluded by an expressed intention to the contrary. The great authority on this point is the decision of the Court of Appeal in In re Vardon's Trusts, 31 Ch. D. 275, contained in the words of Fry, L. J., at p. 279. "That doctrine" [i.e., the doctrine of election] " rests not on the particular provisions of the instru- ment which raises the election, but on the presump- tion of a general intention in the authors of an instrument that effect shall be given to every part of it, ' the ordinary intent,' to use the words of Lord Hatherley {Cooper v. Cooper, 7 L. E., H. L. 71), ' im- plied in every man who affects by a legal instrument to dispose of property, that he intends all that he has ^^__expres£ed/ This general andpresumedintentionis not repelled by showing that the circumstances which, in Election excluded hj Contrary Expression. 23 tlie event, gave rise to the election, -were not in the contemplation of the author of the instrument [Cooper T. Cooper), but in principle it is evident that it may be repelled by the declaration in the instrument itself of a particular intention inconsistent ■with the presumed and general intention. " For example, if the settlement in question had contained an express declaration that in no case should the doctrine of election be appHed to its pro- visions, there seems to be no reason vs^hy such a declaration should not have full efEect given to it. The late Mr. Swanston appears to us to have correctly enunciated the law on this point when he said : ' The rule of not claiming by one part of an instru- ment in contradiction to another has exceptions; and the ground of exception seems to be a particular intention, denoted by the instrument, differing from that general intention, the presumption of which is the foundation of the doctrine of election ' (1 Swans. 404, n.)." On this srround it was held in the above case that As by gift o _ without the settlement having given a married woman the power of . anticipa- income of a fund for her separate use with restramt tion ; on anticipation, the intention of the settlor was shown by the words of restraint, that she should not give up that income if she declined to comply with the requirements of the settlement, and therefore that the doctrine of election was excluded. The view expressed in the above words of Fry, P'^Jjy^eift T; ,T accords with the decision of Lord Eldon in merely of oon a partial Garrick v. Lord Camden, 14 Ves. 372, p. 382, that interest. 34 Election excluded ly Contrary Expression. ■where a testator expresses that in case of non- compKanoe ■with a direction in the will, the legatee is to forfeit a certain interest giyen him, the Court cannot apply the principle of election and say he must forfeit (or make compensation out of) all that he takes under that will. A similar -view is ex- pressed in East v. Cook, 2 Yes. 30, p. 33, and is much more in harmony with principle than is the previous decision to the contrary effect in Jenhins v. Jenkins, West, 665, n., and Shepherd y. Philips, cited 1 Atk. 509. So, also, according to the judgment of the House of Lords in Bor v. Bor, 3 Br. P. C. 167, pp. 177, 179, where a testator purports to dispose of lands which in fact are entailed on B., and by the same will gives B. certain other lands, and declares that if he has no power to dispose of the former lands, B. shall forfeit to the devisee of them his share in a certain sum of 2,000^. charged hy a settle- ment — here, as the testator has declared what the consequence shall be if the devise of the former lands is void, there is no room for the Court to imply that in that event B. shall also give up the testator's fee simple lands devised to him, or shall make com- pensation thereout. So Brown v. Parry, Eom. Notes of Cases, 84. At the same time a legacy may be given to a person in satisfaction of a debt, or of a charge on the testator's estate, and yet the legatee may be put to elect between that legacy and a gift by the testator of property of the legatee to another per- son : for the legacy may be a testamentary bounty, Election excluded ly Contrary Expression. 25 thougli before the amount can be ascertained the amount of the claims which the legatee had against the testator must be ascertained. Wilkinson v. Dent, 6 Oh. 339. The "particular intention " spoken of by FrjjL. J., Who may is, it -will be observed, an iatention shown by thethrcon- author of the iustrument under and against which tentfo™" the two claims arise. In the absence, however, of any expression of iatention by him, the intention may be validly shown by a person who, under the settlement, has a power of appointing property as he pleases among a class, one or more of whom claim against the settlement. Thus, in In re Wells, Hardisty v. Wells, 42 Ch. D. 646, a marriage set- tlement contained a covenant by the wife to settle certain real and personal estate, and a settlement by the husband of a policy of assurance on his life, on trust for the children as the survivor of her and the husband might appoint. Of the real estate she was only tenant in taU, and on her death the settlement failed to operate on it, and it went to W., her eldest son. The husband (who survived the wife), by deed reciting the wife's death without barring the estate tail, and that W. was heir-in-tail, appointed the trust property among the other children of the marriage ; and all of it, except the money secured by the policy, was distributed accordingly. By a later deed, reciting this distribution, and that the only fund remaining subject to the trusts of the settlement was the money assured and the bonuses, the husband revoked the former appoiatment and made a new one, under which 26 Election excluded ly Contrary Expression. he gave to W. a share of the money and all the honuses. It was held that though the settlement showed no intention to exclude the doctrine of elec- tion, the hushand, having power to appoint among the children, had power to direct that any benefit conferred on W. should be in addition to what he took as heir-in-tail, and that the recitals in the appointments showed an intention that such should be the case. As to an interest, however, which "W. took under a residuary appointment, in consequence of a later appointment being invalid (as made to a non-ob- ject), no such intention was shown, W. not taking this in fact by the appointor's intention — and be- tween this and W.'s interest as heir he was put to his election. ( 27 ) CHAPTER in. ■what words imply a disposition of another person's property. Sect. 1. — General Principles : and herein of the ques- tion whether Election is raised hy Erroneous Recital. The fact of a disposition being made by one person Disposal of of the property of anotber, must be very clearly property proved. " Prima facie, it is not to be supposed tbat clearly a testator disposes of tbat •wbicb is not his own. It ^"^"^^ must be by demonstration plain, by necessary impli- cation, meaning by that the utter improbability that he could have meant otherwise, that the case is raised. But where there is that plain demonstration, that necessary implication, then you must give up all to pass according to the will, or make compensation." Per Eldon, L. C, in Rancliffe v. Parkins, 6 Dow, 149, p. 179. The expression " necessary implication " seems to be somewhat too strong ; subsequent judges have re- stricted the rule to requiring merely that the inten- tion should be clearly expressed. " I think that if the words of a will be such as to embrace different subjects, the context of the wiU. may be resorted to for the purpose of ascertaining to which of the subjects c2 28 What Words imply tlie words were intended to apply ; and I think that the question, in every case npon the construc- tion of a will, must be, What was the intention of the testator ? and that, if the intention can he collected from the context, it is the duty of the Court to give effect to it as much as if it was in terms expressed, and not less so in cases of election than in other cases." Turner, L. J., in Wintour v. Clifton, 8 De G. M. & Gr. 641, p. 650. So Kindersley, V.-C, expresses it in Ecans v. Evans, 3 W. E. 614 : " the Court must be satisfied that, beyond all reasonable doubt, the testator did intend to devise away some interest which belonged to some other person ; " and Chitty, J., in In re Booker, Booker v. Booker, 54 L. T., N. S. 239, p. 242, declares that " a great safeguard ia applying " the doctrine of election, " is this — that you are not merely to strain words to make them include that which does not belong to the testator, but you must be satisfied beyond aU reasonable doubt that it was his intention to dispose of that which was not his own, and that you cannot impute to him, after having read his wiU, any other inten- tion." Both of these judges, in saying that the judge must be satisfied "beyond all reasonable doubt," would presumably agree with the interpre- tation given to such words as "necessary implica- tion " by Lord Eldon and Lord Alvanley, that " the intention must be so probable that the judge cannot suppose the contrary,"—" it must be irresistible to my " [i. e., the judge's] "mind ; it need not be such that no man alive can doubt upon it." Booth v. Disposition of another's Property. 29 Blundell, 1 Mer. 193, pp. 219, 220 ; Brummel v. Profilers, 3 Ves. Ill, p. 113. At the same time, it must be borne in mind that But words if, on the natural construction of tlie words of a wiU, Seir they raise a case of election, that fact is no argument effeor against such construction. "A -wiU must be con- strued reasonably, even where, by so doing, parties are put to their election." Fer James, L. J., in Wilkinson v. Dent, 6 Ch. 339, p. 341. As an instance of the presumption against a testa- Presump- tor intending to dispose of anything but his own against property may be cited Thornton v. Thornton, 11 Ir. another's Ch. Eep. 474. A testator gave to two of his sons ^^°^^ ^' certain property, " and the stock-in-trade therein," and provided that if either should die without issue, the share of such son in such property, " and in the stock-in-trade which shall be therein at the time of such decease," should go to the other two sons. It was held that the latter gift only meant such part of the stock-in-trade already mentioned as should be therein at the son's death, and did not purport to dispose of such other stock-in-trade as might have been brought there by the son. So a gift of all such copyholds as were "vested" in the testatrix, does not purport to dispose of some which were not vested in her, though she had entered into possession of them as if they were. Blommart v. Flayer, 2 S. & S. 597. And compare Forrester v. Cotton, Amb. 388 ; and Cull v. Showell, Amb. 727. On one point some of the dicta of the judges intention already cited may need limitation. The question expressed. 30 What Words imply whether the testator is disposing of what is not his own, is no doubt one of intention, hut, to establish that he is, there must be an intention expressed in the will, and not merely able to be guessed at. A good illustration of this is supplied by The Attorney- General V. Lord Lonsdale, 1 Sim. 105. A tenant for life, having built a school-house on part of the settled estates, devised certain lands of his own in trust to endow the school, and devised other estates to the persons interested in remainder in the settled estates. The first tenant in tail put an end to the school. It was held that, as there was no gift of the school-house by the will, the tenant in tail was not put to his election. " It may be collected from the will," said Leach, Y.-O., "that he (the testator) had an intention to give the school-house to the trustees of the charity. Biit there is no authority for stating that a party is put to his election under a will, unless in the will there be the form of a gift as to the property which is to pass by election." Any dispo- There appears, however, to be a sufficient " form of consistent a gift" of freeholds not belonging to the testator in "with rights of benefi- a Will empowenng the executors to sell the freeholds. raises Pole V. Lord Somers, 6 Yes. 309, p. 327. In fact, any disposition incompatible with the existing rights of persons who take benefits under the instrument of disposition will put them to election. Where a tenant in tail treated the property as his own, and settled it on his daughters, and by will (giving benefits to the persons really entitled in remainder) directed that his wife should live at the mansion house with Disposition of another's Property. 31 his daughters, it was held, not only that the settle- ment and the will formed in fact one entire disposi- tion, but that even in the will alone a disposition was made of part of the real estate, viz., the devise of the benefit of the house to the wife, which, i£ it were to take effect, would " break in upon the plain- tiff's remainder in tail," and acoordiagly election was decreed. KirJcham v. Smith, 1 Ves. 258. A " recommendation" to a devisee to act in a certaia way with property which is already his own (e. g., not to disturb certain old tenants) may be held to amount in fact to a trust, and, if so, the devisee cannot take the devise and also exercise his own ownership without regard to the recommendation, but must elect. Tibbits v. Tibbits, 19 Ves. 656. But a mere gift in a settlement of estate A. of some additional powers, provided the donee re-settle estate B. in a certain way, involves, it need hardly be said, no attempted disposition of estate B., and creates no case for election. Freke v. Lord Barrington, 3 Bro. Oh. 274. The present appears practically the most convenient Whether cl6CTilOIX IS place for noticing a class of cases that fall distinctly raised by , enoneous outside the definition of election above given, and recital. respecting which it appears impossible to lay down a rule as to whether the doctrine of election does or does not apply to them. They are cases which arise on documents, almost always of a testamentary character, which contaia erroneous recitals, especially where such recitals are made the basis of the testator's disposition. The strict case of election, as we have 82 What Words imply seen, is where the testator gives Ms own property to * A., and A.'s property (or something that, on the testator's death, will heoome A.'s property) to B. ; the present case is where he gives property to A^ reciting that certain other property belongs or will go to B., whereas in fact the latter belongs or wUl go to A. There is here no disposition of what is not the testator's own, hut the recital may amount to showing that he only intends A. to have what the will gives him, as part of an arrangement under which B. has the other property, or it may, on the other hand, merely show that, under the impres- sion that B. has the latter property, he wishes A. to have the former, still leaving it quite uncertain what disposition he would have made if he had known the actual facts. This uncertainty, by the way, may often exist, as a matter of fact, even in cases in which the application of the principle of election is clearly established. On the question whether recital alone can raise election, a distraction might be suggested that where the testator merely recites a state of facts as existiag which does not really exist, his will should be taken as it stands, and no necessity of election imposed on the legatee, but that, where he expressly gives pro- perty to the legatee, A., for the reason that certain other property goes to B., whereas in fact it goes to A., A. should be under the necessity of either letting it go to B., as the testator supposed it would go, or of compensating B. out of the property given to A. Even ia the last case, however, the liability to elect. Disposition of another's Property. 33 thougli affirmed Tby the majority of cases, is not imi- versally recognized. Box y. Barrett is to the con- trary. The following cases support the view that erro- I'or raisiug . . . election by neous recital will raise election. In Walpole v. Lord recital. Co;»w/, Barnard. Ch. E. 153, pp. 158, 159, also cited in 1 Ves. 259, hy the testator's marriage settlement his wife's portion, 5,000/., was to be laid out in lands and settled on himself and his wife and issue. This was not done, but he bequeathed to each of his daughters 6,000/., saying that, as 5,000/., part of his wife's portion, had not been paid, he believed that his personal estate would be sufficient for his debts and legacies. Lord Hardwicke held that, as he had shown that he believed the 5,000/. to be part of his personal estate, which it was not, the daughters could only take the 6,000/. on condition of giving up their interests in the 5,000/. Tilly v. Tilhj (cited in 18 Yes. p. 43) is also an authority, as far as it goes, in favour of election beiag raised by an erroneous recital, but as the decision was evidently dictated by commisera- tion rather than by law, and the Court, ia pronounc- ing it, declined to make a precedent, it is not thought worth while to state it at length. In Vaner. Lord Bungannon, 2 Sch. & Lef. 118, a father by deed, reciting that he had agreed to charge his estates with 12,000/. for each of his three daugh- ters, conveyed the estates on trust to raise 36,000/. for his three daughters in such shares as his widow should appoint, and in default for them equally. By will he recited that he had settled 12,000/. on each of c5 34 Wliai Words imply them, and he limited his estates to his daughters equally. The widow having made an appointment between the daughters in unequal shares, it was held that those who took more than a third must elect between their interest under the appoiutment, and that under the will. " I think," said Lord Eedes- dale, " the will of Lord Antrim was made under a mistake — he proceeded under the impression that he had provided 12,000^. absolutely for each of his daughters, and on the faith of that he proceeded to distribute the rest of his property. If, therefore, any daughter insists that he has not made that pro- vision, and that another daughter is not entitled to 12,000/. under it, she must relinquish what the will gives her, in order to compensate the loss sustained by the other daughter." (Page 130.) In Cooke v. Briscoe, 1 Dru. & Wal. 596, a father by deed charged lands which were entailed on the children of his second marriage with 4,000/. for the children of his first marriage — which charge was iu- vaM. By will he devised to the first son of the second marriage (who afterwards succeeded to the entailed lands) certain property of his own, and also recited that he had power to charge the entailed lands with 4,000/., and had so charged them by the deed, and " inasmuch as " he had so made full pro- vision for the children of the first marriage, he only left them 5s. each. It was held that by such recital the belief that the children of the first marriage would have the 4,000/. was plainly shown to be the reason for devising all the unsettled lands Disposition of another's Property. 35 to the son of the second marriage, and so he must elect to allow the charge or give effect to it out of the devised estate. Here, however, there was not merely a recital— though it was considered that the manifestation of intention would of itself he suffi- cient, — hut further, " he incorporates the charge into his will and makes its validity the ground for cutting out his eldest son and heir, and the consideration for the devise of the unsettled lands to his son of the second marriage." The incorporation of the charge into the will is treated as in fact equivalent to a positive disposition by the will of that which was not the testator's own. In JRobimon v. Branshy, 6 Mad. 348, the testator expressed a wish to divide his property equally among his three children, and recited that his son- in-law owed him 2,100^. — ^he therefore discharged him of that 2,100Z., bequeathed to one son 1,200/. with a house valued at 900/., and to his other son ' 2,100/., and divided the residue equally among his three children. The son-in-law maintained that the 2,100/. was largely gift and not loan, hut it was held that the legatee could not enter into evidence to repel the testator's statement, hut must elect to take under or against the will. "Possibly," said Leach, V.-C, "a legatee might be relieved in a case of clear mistake of figures, as where the testator, referring to a settled account, called the balance 2,000/., which was in fact but 1,000/." Similarly, in In re Aird, Aird v. Quick, 12 Ch. D. 291, it was held that where a testator made a disposition of his property and expressed it to be on 36 What Words imply the basis of certain advances having been made by him to some of the legatees, such legatees must, for the purpose of their claims under the will, treat the advances as having been made, to the amounts stated by the testator, although the statement may be erroneous. And in Quihampton v. Going, 24 W. H. 917, Jessel, M. E., held that a statement in a wiU that the amounts advanced by a testator to his children are as specified in a certain list, is conclu- sive for the purpose of distributing his estate under the vein. These last three oases, it will be seen, are still further removed than the others from the strict cases of election, as there is in them nothing which the legatee will be deprived of if he takes under the will, but the question is merely between taking under the vrill a larger or a smaller sum ; it is clear gain to the legatee in either way. Against On the other hand, in Clark v. Guise, 2 Yes. 617, raiaing , . election by where a debtor devised an annuity to his creditor, and, declaring that he owed her a sum named (show- ing at the same time how he made it out to be that amount) , directed payment of that sum, Clarke, M. E., held that the creditor claiming a greater sum was not put to election, for that the testator's iutention was not to make a compromise of a debt he owed, or to give part instead of the whole, but to give the whole debt besides the annuity. Huby v. Foot, Beat. 581, may perhaps be mentioned in this connection. There, by an earlier settlement, lands were charged with 2,000J. for younger children. By a later instrument the lands were settled, subject to the charge — which Disposition of another' s Property. 37 was stated as a oharge of 1,000/.— upon trust to raise 2,500/. for tlie younger children. It was held that there was no case of election, and the children claiming the 2,500/. were not hound to allow that the earlier charge was only for 1,000/. Bashwood v. Peyton, 18 Yes. 27, was discussed at great length, and appears not absolutely to decide anything, but the bearing of the case is against the raising of an election by implication. The case was this : — Devise of adyowson and estates to A. for life with remainders over, and with direction that if the living becomes vacant while A. is in possession of the estates, A. shall present James. A. succeeds to the estates, and by wiU — referring to this direction (describing it as a direction that James shall be pre- sented to the living when it becomes vacant), and expressing the wish that it should be complied with — directs that if on a vacancy James is dead, or declines to take it, &c., Algernon shall be presented if qualified and willing ; and he devises estates of his own to B. A. dies before a vacancy in the living, and B. succeeds. Then a vacancy occurs : can James claim to be presented ? Not under the first will, as the vacancy has not occurred while A. was in posses- sion. Then is there in A.'s will an implied direction that James shall be presented ? If it can be estab- lished that A. " has expressly declared or has shown a clear intention that James Dashwood should take this presentation, a case of election is to be raised " — i.e., B., the beneficiary under A.'s wiU, would be under a condition to comply with A.'s expressed 38 What Words imply intention and appoint James— "tut if upon tte whole -will taken together it is obvious that the tes- tator thought he had nothing to give to James, that he was already entitled, and the testator under that supposition has not given to him or expressed an in- tention that he should take, I find no authority for holding mere recital, without more, to amount to gift or demonstration of an intention to give." (Eldon, L. C, p. 41.) Subsequently, Tilly v. Tilly was cited to the Lord Chancellor, hut he considered it to be of no weight. Finally, he strongly inclined to the opinion that James could not, by the fact of B. taking certain estates in fee, " raise a case of election, though not in terms expressed, by implication upon the general doctrine of the Court," and refused an injunction, though " without prejudice to any ques- tion upon the case of election, if the plaintiff " (James) " chooses to carry on the suit" (p. 49). In two later cases, the decision has been more emphatic against raising election by incorrect recital. In Langslow v. Langslow, 21 Beav. 552, a father having appointed to his son part of a ftmd which, so far as unappointed, would go equally between that son and a grandson by another son, by wiU left pro- perty to the son, and recited that he would have to bring into hotchpot the appointed part of the fund, and that the whole of the fund would then be divisible between him and the grandson. In fact, the hotchpot clause in the original settlement did not apply between the son and the grandson. Lord Eomilly, M. Er., held that the son was not put to Disposition of another's Property. 39 election. And again, in Box v. Barrett, 3 Eq. 244, the same judge held that no election was raised by a will which gave less to two of the testator's children than to the other two, expressly on the ground that the two former took under the testator's marriage settlement— whereas, in fact, aU the four took under it equally. He could not think that the latter two, if they took under the will, must give up what they took imder the settlement; for to make a case of election, he said, " there must be some disposition of property which the testator had no right to dispose of " — so that it would appear that in his view no recital whatever could be sufficient to raise a ease of election — a doctrine which seems wholly irreconoile- able with Yane v. Lord Bungannon, and Cooke v. Briscoe. The principle that erroneous recital will not raise election was nominally assented to by both Ball, L. 0. of I., and Christian, L. J., in the Irish case Lewis v. Lewis, 11 Ir. Eq. E. 340, though the view of the former, that a recital might amount to a disposition, would deprive the principle as a general statement of aU its cogency. The case there was, that a testator described a certain estate as purchased by him " in exoneration of the engagement" on his marriage, whereas in fact the engagement referred to, a bond, was not discharged, but was legally enforceable by a person to whom his will gave considerable benefits. The L. J. considered this a mere incorrect recital which could not, raise election (pp. 359, 360) ; the L. 0. held that the testator indicated that the money recital. 40 What Words imply secured ty the bond was money whicli lie considered to belong to himself, and so that a claimant under the bond would be interfering not merely with the recitals, but with the dispositions of the instrument (pp. 349, 350). Mistaken An instrument, of course, may show otherwise may be than by recital the belief of the testator that A. has without not a certain right against the testator's estate which he actually has, and which, if the testator had known of it, might very possibly have led him not to give A. the benefit, or the whole of the benefit, actually conferred by the will. ■ Such a case was that of Gardiner y. Fell, 1 Jac. & "W. 22, where a testa- trix bequeathed a legacy of 1,000/. to her great- nephew, and purported to devise him an estate which was in fact already his, and had been so for years, so that he had a claim against her estate for the rents and profits which she had received during her life- time. It was held that he could enforce this claim, and none the less receive the legacy. Sect. 2. — Consideration of Special Classes of Cases. "We proceed to consider in detail by what ex- pressions a testator is understood to be disposing of what is not his own. The clearest case is, of course, that of the dis- position of a specific property in which the testator or donor has no interest whatever. Where the Where he has some interest in the property, Disposition of another's Property. 41 though it is not entirely his own, the Court will in- testator cline to the view that he iatends to dispose only of the p^iai interest which helongs to him. Indeed, ia Eancliffe ^ ™^^ ' V. Parlcins, 6 Dow, 149, p. 185, Eldon, L. C, lays it down that " it is difficult in any case to apply the doctrine of election where the testator has some present interest in the estate disposed of, though it may not he entirely his own." This proposition, however, was not requisite for the decision — which turned, not on the mere fact of the testator having himself some interest in the property disposed of, but on his expressly confirming the settlement under which the interests of others arose — and clearly does not express the law. In Wintour v. Clifton, 21 Beav. 447, p. 462, EomiUy, M. E., refers to the above words, and by them, he says, " I understand Lord Eldon only to mean that when it is possible the words of the testator shall be applied to that present interest, but that he does not mean to say that in no case in such circumstances can a case of election arise." On appeal (8 De G. M. & G. 641), Turner, L. J., says it was argued "that every testator must prima facie be taken to have intended to dispose only of the interest which he may have been entitled to dispose of. That there being property of Sir E. Clifton to answer every disposition of his will, the Court could not look beyond that property, and that, where a testator has a limited interest in property forming the subject of a devise or bequest, the intention to make a disposition extending beyond that interest cannot be made sufficiently clear to 42 What Words imply raise a case of election by anything stort of a positive declaration. To these two latter propositions," he fiays, "I am not prepared to assent" (p. 650), and goes on to express the opinion, in words already quoted, p. 27, that the question is one of the intention apparent on the will as a whole. Where a mortgagee's will showed plainly that she was only disposing of her interest as mortgagee, indefinite words in a codicil were not allowed to imply an intention to do more and dispose also of the mortgagor's interest in the property. Bynge v. Bynge, 9 Ch. 128. Where the Where the testator's interest is such that the interest dispositions he has made cannot be satisfied out of satisfy; his it, his will Cannot be considered as disposing only of aisposi on. ^^^^^ interest. Of this character are all attempts to Devises of _ •'■ estates taU. devise property of which the testator is only tenant in tail, such as Noys v. Mordaunt, 2 Vem. 681, one of the earliest cases by which the principle of election was established. There a testator devised to his daughter Margaret his lands at Beeston, and died, leaving besides her another daughter EUen, who took large benefits imder the wOl, but claimed in addition a moiety of the lands at Beeston as co- heiress in tail, such lands having been settled, ia default of male issue of the testator, on the heirs of his body. " In all cases of this kind," said Cowper, L. K., " where a man is disposing of his estate among his children, and gives to one fee simple lands, and to another lands entailed or under settlement, it is upon an implied condition that each party acquit and Disposition of another's Proj)crt//. 43 release the other." So, Tfltson v. Moiinf, 3 Ves. jun. 191, as to suoh of tlio copyhold estate as (though smTcndered to tlie use of tho "will), was entailed; Anon., ailb. 0. in Ecf. 15, and IFc/b;/ v. WcJbi/, 2 V. & B. 187. Of course, the intention to dispose of the entailed lands must be clearly shown. Wliere a testator having a fee simple in certain lands, but being only- tenant in tail of others, devised all his lands " of which he was seised or whereto he was entitled or of which he had any power to dispose," no suoh in- tention was shown to dispose of the entailed lands as to raise a case of election against persons claiming under the entail and taking benefits also under the will. Fonr.ffcrx. Cotton, Amb. 388; compare C»/^ v. Showclt, Amb. 7'J7, jw^t, p. 87. But in a devise executed before the Wills Act, and therefore specific, of all a testator's "manors," as the only manors he had were two of which he was tenant in tail, the will was held to be a disposition of them. Woodroffe v. Daniel, 7 Jur. 9-50. And, as already noticed, a gift to persons not entitled, of the right of occupation of part of the property entailed, is a gift inconsistent with the entail, and may, tlicrcfore, lay the basis for election. Eirhham v. Smith, 1 Ves. 258 ; ante, p. 31. So, of course, if the gift is of a right of occupation of " the lands and premises now occupied by me," and such lands include lands subject to the entail. Honyicood v. Forstcr, 30 B. 14. Another instance of a devise going beyond the Devises of rever- testator's interest occurs where the testator has sionary uiterests. 44 What Words imply merely a reversionary interest after tlie deatli of A., and purports to give A. benefits out of the property. In Welbij V. Welbij, 2 V. & B. 187, a testator, having an estate for life in S. with remainder (after failure of issue male of himself) in fee, devised his estates in S. to his son for life, remainder to his grandson. As the son and grandson must he dead before his own fee simple in remainder could take efEeot, it was held that he could not be disposing merely of such remainder, but that it was a gift of the immediate fee simple. There were also con- nected with the gift powers of leasing and join- turing, inapplicable to a reversionary interest. In this case, it is to be noted that the property devised was described as " my manors and lands at S., which were devised to me by my brother's wiU," but even this special description did not enable the Court to construe the gift as limited to the interest which the testator took by his brother's will, in face of the inappropriateness of such interest to the gift. This decision was followed in Wintour v. Clifton, 21 Beav. 447. A mansion house and certain other properties were limited to A. for life, B. for Ufe, C. in tail, remainder in fee to A., and are hereafter called the settled lands. Other properties were limited to A. in fee. A. by wiU devised all the properties to B. for life, C. for life, and their first and other sons in tail, and gave powers to tenants for life to grant leases, and charge jointures and portions, but such powers were not to extend to the mansion house. The furniture, &c., about the man- Disposition of another's Property. 45 sion house was given to be lield as an heir-loom by the persons entitled irom time to time under the limitations in the will to the mansion house, and the personal estate was to be invested on like trusts. Eomilly, M. E., held that the wUl could not be taken as dealing only witli the reversionary interest in the settled lands, which construction would make it of no effect tiU after the deaths of B. and C, but as purporting to dispose absolutely of the settled and unsettled lands alike, and so as raising a case of elec- tion. On appeal, this judgment was affirmed by Knight-Bruce and Turner, L. JJ. (8 De G. M. & G. 641), the latter of whom, while attaching weight to the fact that the limitations were inapplicable to a mere reversion, rested his decision principally on the powers of jointuring and portioning, and the heir- loom clause. So, if a testator, having only a reversionary in- terest in lands, devises them and charges them with an annuity, this charge may show that he means to give more than the reversionary interest. TJsticke v. Feters, 4 K. & J. 437, see p. 455. Again, where a testator disposes of property to Disposition , , . . — r . . . , , . of a joint which he is entitled j omtly with another, and gives interest. an interest in it to that other , he evidently cannot be meaning to dispose only of his own possible interest by survivo rship. In re Carpenter, Carpenter v. Bi&- ney, 51 L. T. (N. S.) 773. In the above cases, the testator's property is in its Gift where . ■, 1 • o 1 L n -L ^^ donor nature such that the will cannot be satisned out oi it. has an in- Where it is only deficient in amount, as where he has interest. 46 What Words imply given away stock to a greater amount tlian lie proves to have owned, a question may sometimes be raised, as in Baugh v. Read, 1 Ves. jun. 257, whether he did not do so on the supposition of certain other stock belonging to him or being at his disposal, which in fact belonged to one of his legatees, and whether such legatee must not therefore elect. To prove this, however, would generally involve the introduction of extrinsic evidence of the testator's intention or belief, and, as will be seen hereafter (Ch. XYI.), such evidence is not admissible. Where Jf the question of election can be made out to be election ^ depends on dependent, not on any expression of intention or the value, . . ei-idence behef, but Simply on the amount or value of the may (pro- bably) be testator s property, viewed in connection with the the value, words of the will, it is apprehended that evidence may properly be given of the amount or value, just as of any collateral circumstances necessary to ex- plain the wiU. Thus, in Pearson v. Pearson, 1 Bro. Ch. 292, Loughborough, L. C, considering that the question whether an annuity to a widow was in satisfaction of dower, that is, in other words, whether she must elect between them, depended on the ques- tion whether, if she took her dower, the real estate would be capable of answering the charges laid upon it by the will, directed an inquiry to ascertain the amount of the real estate, both at the date of the wiU and at the death. In Eoldich v. JSoldich, 2 T. & C. Ch. 18, however, where a considerable time had elapsed between the date of the wiU and the death, Knight-Bruce, V.-C, on that ground refused Disposition of another's Property. 47 to direct an inquiry into the value of the estate, obserYing at the same time, "Whether it could in my opinion he right, in any case of this kind, to direct such an inquiry, I do not say." It is suh- mitted that, in any case where the value of the property would be a material element in judging whether a ease of election arises, it is correct to admit evidence to ascertain the value. In Pepper v. Dixon, 17 Sim. 200, the fact that the value of the testator's property would not be enough to satisfy the requirements of his will if his widow had her dower, is mentioned in the report, but is not relied on in the decision (which was against the widow) as part of the grounds of it. But in a case where elec- tion depended on the question whether a testator, by a devise of all his real estate, standing, lying, and being at B., had disposed of property at B. which was not strictly his real estate, but which he had power to appoint, Kindersley, V.-O., rested his deci- sion especially on the fact that the devise was in trust to raise 300/., and that the only property of the testator's own at B. was two cottages producing only about %l. a year. Fox v. Charlton, 10 W. E. 506. Where the property which a person would take tmder the wUl or other document is less than he would take against it, and there is no such other advantage connected with it that there would be any gain to him (if the case is one of election) ia taking imder the wQl, but his doing so would merely in- volve his forfeiting a fully equal benefit which he has already, it seems a fair inference — at least where 48 What Words imply both the interests are merely pecuniary — that the testator did not intend him to elect {Warbution v. Warhutton, 2 Sm. & Gr. 163), and in such a case, evidence of the values seems a necessary element in arriving at a correct judgment. Intention The Suggestion may be made, where the testator's of after- interest in property at the time of his will is in- property. adequate to meet the disposition made of such pro- General perty, that he was intending to dispose of other property of the same kind which he might acquire after the will — in fact, that the devise or bequest is a general and not a specific one. If this can be established, it is not a case of election, which only arises upon a specific gift, but whether a gift is general or specific often depends on minute distinc- tions, and on the precise language and facts of the case. In Bummer v. Pitcher, 5 Sim. 35, affirmed 2 M. & K. 262, a testator bequeathed "all my funded property " in trust for his wife for her lifej and after her death bequeathed " the sum of 300?. 4 per cents." to A., and so on to B., C, &o., to an amount nearly equal to all the 4 per cent, stock he then had standing in the names of himself and his wife. It was held by Shadwell, V.-C, and on appeal, by Brougham, L. C, that this was a general • gift of stock, and therefore, although he had not, either at the date of the will or of the death, any stock but that standing in the names of himself and his wife, which, of course, the wife took by survivorship, the will made no disposition of that stock and did not put the wife (who took other Disposition of another's Property. 49^ benefits imder the will) to election. So, too, even in & case where the amount bequeathed was the precise sum standing in the names of the testator and his wife — ^the capital stock or sum of 800/., 3/. per Cent. Oonsolidated Bank Annuities — the bequest was held to be a general one, and no election was raised. Poole T. Odling, 31 L. J. Ch. 439 ; 10 W. E. 337. So, in Atf.-Gen. v. Fletcher, 5 L. J. (N. S.) Ch. 73, a widow who was .entitled to two sums of 3 per Cent. lieduced Annuities, 1,933/. 6s. ?>d. and 666/. 13s. Ad. (making together 2,600/.), married again and trans- ferred the former only into the name of her husband. By his wiU he bequeathed the interest of 2,600/., 3/. per Cent. Eedueed Annuities, to her for life, and the capital over : this was held to be no disposition of the 666/. 13s. Ad. belonging to the wife, but merely a general bequest, and she had not to elect between the rights under and the rights apart from the will. And again, where a general bequest of 10,000/. con- sols was followed by a declaration that all funds standing at the testator's decease in the names of himselE and his wife should, for the purpose of answering the legacies given by his will, be con- sidered his property, and thereby made liable to the same, it was held that there was no disposition of the funds accruing to the wife, without which -there were not assets to meet the legacies. Laurie V. Glutton, 15 Beav. 131. The correctness of this decision (the judgment in which makes no mention of the declaration) seems open to doubt, especially a^ the concluding words of the declaration seem to E. » 60 „ What Words imply amount to a charge of the legacies on the funds accruing to the -wife, and a charge, being pro tanto a disposition, should surely be sufficient to put the wife (who took other benefits under the wiU) to her election. Disposition On the other hand a bequest of " my shares in the of property , , . , ^^ , of a special Nottingham Canal Navigation, and m all other tion. canals," has been held by Cottenham, L. C, to be a bequest of existing shares in the Nottingham Canal Navigation, and consequently a specific bequest of the only such shares which the testator then had, namely, shares standing in the names of himself and his wife. Shuttleworth v. Chreaves, 4 My. & Or. 35. - ■ And so it has been laid down that generally where the property is of a very special description, it will probably be " a matter of some difficulty " to support the contention that the reference is only to property thereafter to be acquired. " All the Court has to do is to gather the testator's meaning from the words he has used ; and certaioly it seems a very whimsical meaning to impute to a testator, when he affects to dispose of all property of a particular description of which he has now or may hereafter have power to dispose, that he makes that disposition without the least suspicion that he has then any property of that description, and solely with the notion that he may hereafter buy some such property." Wood, V.-C, ia mticke v.- Peters, 4 K. & J. 437, p. 455. In that case a testator, having a reversionary interest in " Duchy lands," devised all the real estate he had, or should have at his death, including the Duchy Disposition of another' s Property. 51 lands; and tlie Court was not disposed to hold, on aoeount of tlie inappropriateness of tlie devise to a reversionary interest, that this was a devise of merely- such Duchy lands as he might thereafter acquire. A fortiori, of course, where the reference is pointedly to property which the testator has at the time of his will. Thus, a bequest of " my present fimded stock .and government annuities," the testator having none except what he had transferred into the joiat names •of himself and his wife, will be a bequest of that. Crrosvenor v. Dicrston, 25 Beav. 97. And obviously, where the testator bequeathed the sum of 2,200/., a per cents., describing it as his property then standing in the joint names of himself and his wife, the wife surviving had to elect between that stock and •other benefits given her by the will. Coates v. Stevens, 1 T. & Col. Ex. 66. In one case a gift of two houses to be sold and Two properties divided equally between two persons has been given thought to indicate that the testatrix having an absolute interest in one must be taken to be also dis- posing of an absolute interest in the other, in which .she in fact had only a reversionary interest after an estate tail in one of the two persons who were to share the proceeds of sale. If the gift were taken as limited to what the testatrix really owned, the two devisees would evidently be far from sharing the two houses in that equality which the words of the will contemplated. Moreover, there was an additional reason why the testatrix might regard herself as owner of the latter house as well as the former, it d2 52 What Words imply having been conveyed to her by a trustee under the mistaken impression that the trusts of it were at an end. These reasons were not, after all, the basis of any actual decision, in consequence of the invahd execution of the will. Cumming v. Forrester, 2 J. & W. 334. General A surrender by A. of all the copyholds which he ■words , sometimes was posscssed of Or entitled to, " either in possession, settled reversion, remainder, or expectancy," has been held ^' to carry the whole interest in copyholds which he held in trust for himself for life, remainder for his son in tail, remainder for himself in fee — and this, although there were other copyholds of which he was absolute owner. Per Lyndhurst, L. C, mAhdi/ generauy. "^- Gordon, 3 Euss. 278. But a bequest of "all my leaseholds," the testator having leaseholds of his own, was not regarded as disposing of settled leaseholds (which he had no power to bequeath), simply because the testator had renewed them in his own name with- out taking notice of the settlement. In this case, the will expressly confirmed the settlement. Tanner v. Elworthy, 4 Beav. 487. A devise of " all my real and personal estates in the kingdom of Ireland " — the testator having lands which he was free to dispose of as he pleased — is not a disposition of lands which were settled, and of which the testator was only tenant in tail : especially when the devise is "subject tO' my just debts." Knox V. Knox, Beat. i501. A devise of "my real estates," where the testator is only tenant for life or in tail of certain lands, and has no other real estates, Disposition of another'' s Property. 53 is no attempt to dispose of the interest of the re- mainderman or the issue in tail, and raises no case of election. Cosbij v. Lord Ashtown, 10 Ir. Ch. E. 219 ; Stratton v. Best, 1 Yes. jun. 285. Where a testator has only a moiety or other partial Gift by tho interest in property, and disposes of the property in owZg general terms, he is commonly held to be disposing fo^b^m of the whole, and not merely of his own share. (The ^hSe- early decision of Leach, M. E., to the contrary in Chavc V. Chave, 2 J. & H. 713, note, has not been followed.) And this, although he may describe the though thing which he is conveying as " my" house or land : as'"^my" the use of the possessive will not limit the effect of w.^ °' the gift to that which is really the testator's. A leading ease on this subject is Padbur;/ v. Clarl; 2 Macn. & G. 298. There the testator devised all that his freehold messuage or tenement, with the garden and all and singular the appurtenances thereto belong- ing, situate at I., then on lease to U., and devised all that his moiety of and in the leasehold messuage in P. in trust for M. In fact, he had only an imdivided moiety of the freehold house, the other moiety being vested (subject to a life interest) in M. It was held by Cottenham, L. 0., on appeal, that the will showed a clear intention to dispose of the whole, and not merely a moiety, of the freehold house, and M. must elect between her moiety of that house, and the interest given her in the leasehold house. This deci- sion did not rest on (though it was strengthened by) the fact that the express gift of a moiety of the lease- hold house showed that when the testator intended 54 What Words imply to give only a moiety he knew how to say so. Im Fitssimons v. Fitzsimons, 28 Beav. 417, a testator, having an undivided moiety of property at Goose- Green, devised " all that his messuage, tenement, or- estate situate at Goose Green," for certain persons, and gave henefits to his wife, who owned the other moiety. It was held that his words meant the whole of the estate at Goose Green, and raised a case of election, Padbury v. Clark heing treated as precisely in point. ^fortiori A fortiori, where there is a devise by a partial owner of the whole of property, the gift not even purporting to be a gift of the testator's property. Thus, in Hoicells v. Jenkins, 2 J. & H. 706, Lewis,, owning only a moiety of properties P. and T., devised them to Wmiam (who already owned one-fourth of T.) and another person, in fee: it was held by Wood, Y.-C, that the intention was clear to give- the whole, and William must elect, " there being a gift of an estate without the slightest reference to- the fact that the interest of the testator was only an undivided moiety." In Baxon v. Steele, 2 Jones, 178, a devise of all that and those the lands of C, whereas in fact the testator had only \^ of the lands, was (for the purpose of raising election) a devise of the whole; though how the question of election arose needs explanation, as the devise was an absolute devise to the person who was already entitled to the other ■^. Wilkinson v. Benf, 6 Ch. 339, i» another iastanee. A gift of all the testator's " freehold messuages,. Disposition of another'' s Property. 55 cottages, hereditaments, and premises" in South Street, was held, by reason of the express mention of cottages, to he a specific gift of certain cottages in South Street, of which he had two imdivided thirds, and his wife the other third, and in conjunction with other gifts to put the wife to her election. Miller v. Thiirgood, 33 Beav. 496. A testator entitled on a certain event to two-thirds of a sum of 10,000^. consols bequeathed all his pro- j)erty on trusts, and on the deaths of certain bene- ficiaries gave the property " including the 10,000^., 3 per cents." to others : this was a gift of the whole 10,000/., and not merely of his own two-thirds. Sican V. Holmes, 19 Beav. 471. The bequest of a fund by one who, after a life interest iu A., is entitled to a moiety of the fund as tenant in common with A. of the whole, is not the less a bequest of the whole fund by reason of the testator recitiug that, " subject to the trusts" in favour of A., he is entitled to the whole. Those words refer to A.'s hfe estate, but are not apt words to express a gift of a share, as one tenant in common does not take " subject to" the right of the other. Qrissell v. SwinJwe, 7 Eq. 291. The conclusion that the gift of an estate in general terms is an attempted gift of the whole, though the testator only had part, is strengthened by a direction to keep the buildings on the estate in good repair, or a bequest for the purpose of repairing them. Hoicells V. Jenkins, 2 J. & H. 706. But a devise of "mj property at L." or "in D. B." Secus, of 56 What Words imply ^t of my has been held to mean prima facie only that which perty." belonged to the testator. In one case he had paid part of the purchase-money, and consequently had a charge on the land for that amount, and the land had been conveyed to him in fee simple : it was held that his interest as incumbrancer was sufficient to satisfy the words of the devise. "Wood, Y.-C, in Maddison v. Chapman, 1 J. & H. 470. In another case the testator's interest was one seventh share of the land; and that, and no more, passed. Chatterton,. Y.-C. of Ir., Henry v. Senry, 6 Ir. E. Eq. 286. The decision of Kindersley, Y.-O., in In re BidwelPs: Settlement, 11 W. E. 161, appears not to be recon- cilable with Padbury v. Clark and Fitzsimons v. Fitzsimons. There, by A.'s marriage settlement, property was settled (after the deaths of A. and his- wife) in trust for his children as he should appoint, and in default for the children at twenty-one or marriage. Having had one child, who attained twenty-one and died in A.'s lifetime intestate and without issue, and another child living, A., by will, gave all the residue of his estate, including the stocks in the names of the trustees of his marriage settle- ' ment, which he directed should be considered as part of his residuary personal estate, on trust for his wife for life, and then for his daughter and her family. It was held that there was no clear intention shown to dispose of anything beyond the moiety which was vested in A. as representative of the deceased child, and that the daughter was not put to her election. It would seem, however, that there was clearly a gift Disposition of another'' s Property. 57 of the stock in general terms by a person who was only entitled to a moiety, which, according to the preceding cases, is impliedly a gift of the whole. Whether a testator devising real estate which, in Gift of his hands, is subject to a rentcharge, is or is not to wSlf be understood as devising the estate free from theTS-'" rentcharge, is a point on which opinions have been Sgiftof divided. In Ayres v. Willis, 1 Yes. 230, LordllTrenr Hardwicke expressed the view (which was not, ''^''''^''' however, a decision) that if a child is entitled to a rentcharge or such an interest out of real estate of the father, and the father bequeaths him a legacy or portion, and devises the real estate to another, the child is not put to election between the legacy and the rentcharge, because the devise of the real estate shows no intention to exclude the rentcharge. But in Blahe v. Bunhurtj, 4 Bro. Ch. 21, 1 Ves. jun. 514, while it is laid down that the devise in general terms of an estate which is subject to an incumbrance shows no intention to give the estate free from the incumbrance, the same principle is held not to apply to an estate subject to a rentcharge, on the ground that the rentcharge " does not take the estate out of the testator as a mortgage might do." Lord Com- missioner Eyre considered that in such a case the testator is not to be understood by a general devise as disposing only of what the rentcharge leaves him, " for the whole was ia him and he meant to pass the whole" (1 Ves. jun. p. 525), or at least the presumption is that he meant to do so. In this case the rents and profits of the estate were by settlement devoted d5 §8 What Words imfly to raising a yearly sum for an eldest son, and after- wards the settlor devised the estate in trust out of the rents or by mortgage to raise certain sums, and subject thereto to the use of the eldest son. Such a devise is "inconsistent with the settlement, which had appropriated the rents and profits to the raising 2,000^. a year for the eldest son. This seems to throw the onus prohandi as to the intention of the will upon the eldest son, and to call upon him to show that the testator intended, not to dispose of the whole rents and profits, but of such part only as should remain after satisfying the rentcharge."' 4 Bro. p. 26. The principle that " where a testator simply gives an estate without saying more, he is to be taken to- mean the estate in its present condition, subject td the existing charges upon it," has been since enunci- ated by Cran worth, L. 0., in a decision ia which Knight-Bruce and Turner, L. JJ., concurred, and which was the more remarkable inasmuch as the testator was not on any view giving merely what he had himself — for he had no devisable interest at all. In this case, Stephens v. Stephens, 3 Drew. 697, and, on appeal, 1 De G-. & J. 62, Hood's farm was settled with other property on "William for life^ remainder to his children in tail, remainder to John for life, remainder to trustees for a term to raise 10,000/. for the younger children of John and Charles, remainder to John's first and other sons in tail, remainders over. During the life of William, John devised Hood's farm to his eldest son abso- Disposition of another'' s Property. 59 liitely, and gave benefits by his will to younger sons. He gave nothing to the children of Charles. He died in the lifetime of WiUiam, on whose death without issue John's eldest son succeeded to Hood's farm under the original settlement as tenant in tail. He claimed that the younger children were put to election between their interest in the 10,000/. charge, and the property given them by John. The Court of Appeal held that they were not put to election — that there was nothing to show that the devise was not meant to be subject to the term, and that this view was supported by the fact that there was clearly nothing to put the children of Charles to election. On the latter point they were in accord with Kindersley, V.-C, but on the former point he had taken the opposite view, considering (according to the fuller statement of his judgment iu 1 De G. & J. p. 67) that from the fact of John having no devis- able interest, the case was not like that of the owner of an estate subject to a charge devising it, and that a person devising property in which he has no devis- able interest must generally be taken to have intended to claim it as his own and to devise it free from in- cumbrances. On this very special question his view was not identical with that of the superior Court, but on the more general and more important question of a devise of property by the person who owm it subject to a charge, there was no difference of opinion between the Vice-Chancellor and the Court of Appeal. Where, however, a person devises property as his 60 What Words imply own, whereas lie would liave no right to devise it at all if it passed by an earlier (disputed) wiU. by which it was charged with a legacy, he cannot be considered as meaning to devise it subject to that legacy. Sadr Her V. Butkr, 1 Ir. E. Eq. 415. Gift of It may be here observed that — inasmuch as the over wMch donee of a general power, by exercising it, makes person has the property subject to it assets of his own — ^where power of an instrument, which gives a benefit to A., disposes ment" " of property over which A. has a general power of appointment, and A. afterwards exercises such power in favour of other persons than the beneficiaries under the former instrument, A. is bound to com- pensate the persons disappointed by such exercise of his power out of the interest which he takes under the former instrument. Griffith-Boseawen v. Scott, 26 Ch. D. 358. Thus, to dispose of property over which another person has a general power of appoint- ment, may be practically tantamount to disposing of property belonging to that person. Gift of As a person who has settled, or agreed to settle, his property i i i i previously property has to that extent rendered it either in law settled by the donor, or m equity no longer his own, a case of election may be raised by his subsequently purporting to dispose of it if he gives benefits out of property not so settled or agreed to be settled to persons taking under the settle- ment or agreement. Bennett v. IIouldsworth,Q Ch. D. 671. If part only of a man's estate is settled, the question of election wlE depend on whether the settlor's wUl (or other document posterior to the isettlement) imports a disposition of his whole estate, Disposition of another' s Property. 61 " and therefore of the part settled as well as the rest." Herne v. Heme, 2 Vem. 555. In mi/kr v. Wetherell, Where the 4 Sim. 114, the testator had covenanted that he cove'raTu* would by will or otherwise in his lifetime settle aU property!"'' the real and personal estate he should leave at his death on his wife for life, if she survived him, and, on the death of the survivor, on their children equally. He had six children, of whom four died in his Hf e intestate and unmarried, and he took out administration to them. Of the other two, Harriet survived him, and Frances died in his Hfe leaving children. He left all his real and personal property (after his wife's death) to or on trust for Harriet and her future husband and their issue, and the children of Frances. It was held that each of the six children took under the covenant a vested interest ; that the realty — Harriet and Frances being (under the old law) co-heiresses of their deceased brothers and sisters — went in equity equally between Harriet and the heir of Frances, while in the personalty Harriet was entitled to one-sixth, the children of Frances to one-sixth, and their father as the administrator of the deceased children to the other four-sixths, which accordingly passed by his will. But as the wiU disposed also of the real estate, it was held that the persons taking the real estate under the covenant, if they claimed to retain it against the will, must give up what they took in the personalty under the will. This decision seems open to question, for as the covenant affected all the personal estate which he was able to dispose of at his death, it is conceived 62 Disposition of another's Property. that it would affeot the four-sixths which came hack to him as administrator, that this would be divisible again into sixths, one going to Harriet, one to the children of Frances, and four to himself as adminis- trator of the deceased children, so that practically, by constant repetition of this process, half his property would go to Frances, and half to the children of Harriet, and there would be nothing for the will to operate on, and no case for election, because he would not have given benefits out of any property not settled or agreed to be settled, there being none such. Thus, in McDonnell v. McDonnell, 2 Con. & Law. 483, a husband and wife having agreed before marriage that on the death of either the property should be divided between the survivor and the issue, the husband, who died first, purported to give his property partly to his son (the only issue) and partly to strangers. The son died in the life of the widow. It having been held that on the husband's death the widow became entitled to one-third, and the son to two-thirds — and it being agreed that the widow took the son's two-thirds as his representa- tive — the strangers suggested that she was boimd to elect, but Sugden, L. C. of Ireland, held that there was no case for election, as the husband did not dis- pose of any property of his own to the strangers — " here the testator had nothing to give, as the whole was bound by the settlement." (• 63 \ CHAPTER IV. INEFFECTUAL ATTEMPTS TO DISPOSE OF ONE's OWN PROPERTY. As the doctrine of election applies not only to an Cases of attempted disposition of the property of another, hut disposition to an attempted though ineffectual disposition of one's moaOy^' __L 'I ' t 'ji IX obsolete; own property, it is necessary to consider also what are or were the cases coming under the latter head. The increased freedom of disposition of property under modem legislation has greatly diminished the numher and importance of these, and rendered the consideration of them, to a great degree, matter of only historical interest. At the time when copyhold estates could not he as devise . 11°^ unsur- devised, imless they had heen previously surrendered rendered to the use of the will, a general devise of copyhold estates — and still more, a general devise of real estates — often led to a question whether a testator was disposing of more than he had legally the right to dispose of. A devise of the copyhold estates " held by me of the manor of B." was sufficient to include one not surrendered. Allen v. Poultoii, 1 Yes. 121. In Bluni v. Clitherow, 10 Ves. 589, following some previous cases, it was held that a 64 Ineffectual Dispositions devise by a testator of all lis oopyliold estates (-with- out any special description) was to be understood as a devise both of those surrendered and those not surrendered, and so as a basis for election if for want of surrender some went to the heir, and benefits were given him by the wUl. However, in Judd v. Pratt, 13 Ves. 168, affirmed by Eldon, L. 0., 15 Ves. 390, it was held that a devise of " all the rest, residue, and remainder of my real and personal estate and effects whatsoever and wheresoever, and of what nature and kind soever," to nephews and nieces — there being freeholds on which the will operated — showed no such intention to pass unsurrendered copyholds that the heir taking against the will had to give up benefits under it. The principle, accord- ing to this case, appears to be that, as it was only in case of a devise to creditors, wife, or children, that the Court would supply the want of a surrender, so in such cases only would it be held that these general words, which could be satisfied by the freeholds, showed an intention to pass the copyholds, and thereby put the heir to his election. This decision was afterwards treated {sqq Allen -7. Anderson, 5 Hare, 163, p. 189) as laying down a rule, without regard to the relation in which the devisee stood to the testator, that a general devise would not carry copy- hold lands not surrendered to the use of the will, if there were freeholds on which the words could operate. But since the Act, 55 Greo. 3, c. 192, dis- pensing with the necessity of a surrender to the use of the will, this question is, of course, unimportant. of onis own Property. 65 Similarly, it is unnecessary to do much more than Devise of refer to the old oases of election raised hy an acquired attempted devise of estates which the testator should ^'^^^' acquire after the date of his mil. Such devise heing void, and the estates going to the heir, the heir was put to election if any property of the testator's own was effectually devised to him. Thollusson v. Wood- ford, 13 Yes. 209, affirmed sub nam. Rendlesham v. Woodford, 1 Dow, 249 ; Churchman v. Ireland, 4 Sim. 520, affirmed 1 E. & M. 250 (overruling Back v. Kett, Jacob, 534) ; Schroder v. Schroder, Kay, 578 ; 23 L. J. Oh. 916, affirmed 24 L. J. Ch. 510 (where it was further held that the heir would equally be put to election, although the property devised to him was merely what would have devolved on him in the absence of any devise) ; and Sance v. Trmvhitt, 2 J. & H. 216. By virtue of the WiUs Act, 1 Yict. e. 26 — see sect. 24 — this ground of election has now become obsolete. The old law of dower raised a very large crop Dower. of questions on election, the widow's interest in her husband's lands beiag under the old law an interest of which he could not deprive her by will, so that if his wiU was inconsistent with her enjoyment of dower, and at the same time conferred any benefits on her beyond or other than her dower, she was put to election. To this head belongs a case which Mr. Swanston has pointed out as one of the earliest — ^probably, indeed, it is the very earhest— of the reported cases on election. Lac?/ v. Anderson, Choice C. in Chanc. 155, 156. 66 Ineffectual Dispositions But now that by tlie Dower Act (3 & 4 Will. 4, c. 105), sects. 4 and 5, the widow's right to dower (in the case of a woman married after the 1st Jamiajy^ 1834) is rendered suhject to any disposition, partial or total, made hy her hushand's will of the land which would otherwise be subject to the dower, this occasion for election is almost wholly at an end. Freebench, Oopyholds, however, are not within the Dower Act {Powdrell v. Jones, 3 "W. E. 32), but ia the majority of cases the widow's right (termed ia copy- hold, freebench) was liable to be defeated by any ahenation made by the husband inter vivos, and consequently by the surrender (which was formerly necessary) to the use of the wiU ; and now that th& necessity for this surrender is abolished, freebench is equally defeated by the husband's will itself. Lace^ V. mil, 19 Eq. p. 351. Old law As, however, in some manors freebench was on thfr tiaiiy in same footing as dower at common law, not liable to- be defeated by the husband's act inter vivos, and as ia these it consequently remaias unaffected by either the Dower Act or the Wills Act, the old law as tO' election ia cases of dower is, in these manors, stiU in force, and is therefore necessary to be stated. General The great question in cases as to election ia con- is the tes- nection with dower is whether the benefit given by position of the testator to his widow is meant to be in addition estate in- to Or ia lieu of her dower, and it is established that cra^a 1 e ^j^-^ ^gpgj^^g ^^ ^^ question whether the disposition °^™' which the will makes of his real estate is such as- cannot be carried out if the widow takes her dower. of one's oion Property. 67 Gibson V. Gibson, 1 Dr. 42 ; the third proposition laid down by Kindersley, V.-C. Perhaps in no hranch of law have the decisions been more conflicting than here, but the tendency which has gained ground is to require (in the absence, of course, of an explicit declaration that a gift to the widow is in lieu of dower) very rigid and clear proof that the widow is not to take her dower and take the benefit given her besides. It has been sometimes thought that the presumption ought to have been the other way; that a testator's dispositions are generally meant to apply to all the property which at the date of the will is his own, and that it ought to be assumed that he did not intend his dispositions to take effect only subject to his widow's dower, or on so much of his property as would remain after she had taken her dower (see e.g., per Wickens, V.-C, in Thompson v. Burra, 16 Eq. 592, p. 601) ; but whatever the rule ought to have been, it clearly is that no benefit to ■the widow will put her to election unless her taking her dower would be manifestly incompatible with the testator's dispositions. Many things which have Modem been regarded as indications that she was not to against take both benefits have been subsequently considered widow to not sufficient, each standing by itself, to put her to election, because, whatever impression they might leave as to the testator's intention, it was not im- possible that she should take her dower, and still the testator's directions should be carried out. A caution must, however, be added that several things which, taken separately, are not sufficient to 68 Ineffectual Dispositions put a widow to election, may eacli afford, at any rate- in certain cases, a presumption in favour of her being- so put, and consequently the combined effect of a number of such facts may not necessarily be nil because the effect of each alone is nil. Sail v. Hill, 1 Dr. & "War. 94 ; Thompson v. Burra, 16 Eq. 592. Dispoei- Jt js now Well settled that there is nothing incon- tions not , IP IV juoon- sistent with a widow taking her dower in the fact of sistent ■with a devise of the testator's freehold to another person. Devise to Laurence v. Lawrence, 3 Bro. P. C. (Toml.) 483; ^raJT StraJian v. Sutton, 3 Ves. 249 ; Eoldich v. Eoldicliy 2 Y. & 0. Ch. 18. In Strahan v. Sutton it was- remarked that to support an inference from such a devise that she was to be barred of her dower, "it must be contended that she will insist that her dower- should be set out by metes and bounds. ... It has been determined that the widow need not take it by metes and bounds ; she may take a rentcharge ; she may take one-third of the rents and profits."' In later times this view has been discountenanced, and the law has been laid down that any disposition, inconsistent with the widow's assertion of her right to dower by metes and bounds raises a case of elec- tion. Birmingham v. Kirwan, 2 Sch. & Lef. 444 ;. Bending v. Bending, 3 K. & J. 257. It is stiU, how- ever, held that a gift to another person is not incon- sistent with the widow's right, and does not put her to election. Holdich v. Holdich. Where, as some- times in cases of freebeneh, a widow has no right to have her dower set out by metes and bounds, this- test could not be applied, and in such a case the= of one^s own Proferiy. 69 "words in Strahan v. Sutton would appear to be still in point. In some cases the same conclusion that the gift was not inconsistent with the widow's dower was aided by the fact of the devise being not of a particular ■dose of land described by its name, but of " all my real estate": as to which, Thurlow, L. C, remarked, " The wife has a charge upon the estate paramount io the wUl, she has an absolute right to the third part, it is not his to deprive her of it," and declined to infer " from his having given her all he has, that he has given what he had not." Foster v. Cook, 3 Br. ■& Ch. 347; so Doicson v. Bell, 1 Keen, 761. But see now Padbury v. Clark, 2 Macn. & Gr. 298 ; and Fltz- simoiis V. Fitzsimons, 21 B. 417, ante, pp. 53, 54. It is also now settled that if the testator gives the Annuity or rent- widow an annuity or rentcharge out of the property charge to „ , widow. subject to the dower, she need not on account ot tnat alone elect between it and her dower. The early •cases to the contrary, Arnold v. Kempstead, Amb. 466, Villa Real v. Galway, Amb. 682, Jones v. Collier, Amb. 730, Wake v. Wake, 3 Br. Ch. 255, are overruled by Pitts v. Snowden, cited 1 Br. Ch. 292, n. : Foster v. Cook, 3 Br. Ch. 347 ; Middleton v. Cater, 4 Br. Ch. 409; Greatorex v. Cary, 6 Ves. 615; Bowson V. Bell, 1 Keen, 761 ; Sail v. Hill, 1 Dr. & War. 94. The fact that the annuity is coupled with a power of entry and distress makes no difference in respect of putting the vridow to election : see, e. g.,Pitts r.Snoioden; Dowson Y.Bell. In one of the above over- ruled cases, Jones v. Collier, Amb. 730, an additional ^0 Ineffectual Dispositions argument for holding that the widow was not to have dower as well as the annuity was considered to be supplied by the fact of there being a gift to another person, after the charge of the annuity on the estate, not merely of the estate itself, which it was said might admit of the claim of dower, but of the surplus rents and profits : but in Harrison v. Harrison 1 Keen, 765, Langdale, M. E., held that the devise, with which the will in that case began, of all the testator's real estate, would mean all, subject to the widow's claim to dower, and so the surplus of rents and profits afterwards given would be the surplus subject to that claim. TJevise in A devise of real estate in trust for sale, it is well aaie. established, does not deprive the widow of her dower, Ellis v. Lewis, 3 Hare, 310 ; Gibson v. Gibson, 1 Dr. 42 ; (it is also said that it afEords, in general, but a slight presumption against her ; Thompson v. Burra, 16 Eq. p. 601) ; nor does the direction to apply the rents and profits until sale in the same manner as the income of the proceeds of sale, Gibson v. Gibson. Directions It was thought in several cases that indications of ior equal • i . • diTOion an intention that the property should be divided in -widow equal shares between the widow and some other persons, as the children, excluded her right to dower, inasmuch as it was said that if she first took a life interest in a third, and then took also her share of the remainder, the equality contemplated would be destroyed. See Lord Eldon's opinion in GartJishore V. Clialie, 10 Ves. 1, p. 20, and the decisions in Chalmers v. Storil, 2 Y. & B. 222; Dickson v. and others. of onis own Property. 7] Hobiiison, Jac. 503 ; Roberts v. Smith, 1 S. & S. 513. Ball/ V. Lynch, 3 Br. P. C. 478, might perhaps be cited as a House of Lords authority to the same effect, but that it appears in that case to have been fissumed without argument that a devise to the wife of a moiety of her husband's estate put her to election. But here, agaia, the later decisions have taken a view adverse to any case of election being raised, unless there is something to make it clear that the share given to the widow is a share of the whole, and not of the property as subject to the dower. Thus, under a gift of lands in trust to seU, with a direction to invest the proceeds and pay the income of half to the wife during widowhood, Wigram, V.-C, held that she was not put to election between her interest under the will and her dower. " The direction to of election of the existence of the question of election" — as shown, is enough. „ , , ±or example, by a person filing a bill, and therein raising the claim that he is not bound to elect — is sufEcient acquaintance with his* liability to elect to render possible a binding election by acts. It is true that, in Sopwith v. Maiiglian, 30 Beav. 235, a widow to whom benefits had been given in lieu of her dower, after receiving such benefits for a few years, raised the question whether she was not entitled to her dower, but dropped it again, and yet was allowed, ten years later, to raise the question again, and was Knowledcfe necessary for Electing. 127 held not to liave elected. Here, however, the chief elerk certified that her attention had never teen dra^vn to her liability to elect, and that the benefits had been accepted in ignorance of her right to dower. The necessity for the third element — the,kaowledge 3rd reqni- of the values of the two interests or properties between knowledge which the choice has to be made — is also established vain^. by numerous cases. Thus in Sender v. Rose, 3 P. W. p. 124, n., the child of a fi-eeman having to choose between a legacy and his orphanage share under the custom, was held not bound to elect till after the account was taken and the share ascertained; and ia Fusey v. Besbouverie, 3 P. W. 315, p. 321, it was thought (though not finally decided) that even if the child were informed of his right to have an account taken of the personal estate, and to claim his orphanage share, and declined such account, accept- ing the legacy instead, still he ought not to be held concluded without fuller knowledge of the value of the orphanage share. In Butricke v. Brodhurst, 1 Ves. jun. 171, a wife who had to elect between a sum of consols and a life interest in her husband's estate, after she had received the income for sis years, brought her bill for the consols ; it was held that she was barred, not by mere lapse of time, but by the fact that the estate was " a free fund from the beginning" — there was " no suggestion that the real or personal estate is in such a situation as to render it doubtful what the result would be"— in other words, because she knew the values of the interests between which she had to elect. The need 128 Knowledge necessary for Electing. for such knowledge also appears by Dillon y. Parker^ 1 Swan. 359, where Plumer, M. E., expressed him- self anxious not to hold the person who was liahle to elect " concluded by equivocal acts, performed, per- haps, in ignorance of the value of the estates" (p. 381) ; by Wintour v. Clifton, 21 Beav. 447, p. 468; Edwards V. Morgan, 13 Pr. 782, p. 786 ; Sopwith v. Maughan, 30 Beav. 235, p. 240 ; and Siveetman v. Sweetman, 2 Election Ir. E. Bq. 141, p. 152, already cited. In Dal]/ v. b6for6 faiowiedge Lynch, 3 Bro. P. 0. 478, where a widow had to values elect between her dower and the half of the net rents retracted, and profits of her husband's estate for her life, it was held that, though she had received some of the rents and profits, she could retract and take her dower at any time while the account was being taken, or before the report of it was finally confirmed. So an election made by answer to a bill in Chancery was held not to be binding, as the account had not then been taken and the comparative values ascertained. Boynton v. Boynton, 1 Bro. Ch. 445. Might not It maybe observed that in Stratford v. Powell, Ba. ■without & B. 1, p. 23, Manners, L. C. of Ireland, maiatained vaiu^f that " other circumstances besides an accurate know- taSied? ledge of the comparative value between the two things, the subject of election, are sufficient to bind a person to an election, and to defeat any attempt afterwards to disturb it," and held that the widow, in the case before him, " did not act upon the prin- ciple of weighing the different interests she was entitled to, but actually made an election." And probably, notwithstanding Pusey v. Deshouverie [supra) , Knowledge necessary for Electing. 129' it miglit te the case that if a person, fully knowing of his right to choose between two interests, of which one or both was of a value not yet ascertained, and knowing also of his right to have the values ascer- tained before choosing, chose to waive the latter right, and to make his election while one or both of the values was still undetermined, such election would be blading. It would, however, generally involve — as did Stratford V. Powell — not merely acts, but an express declaration of election. The burden of proof, according to Sweetman v. Burden of Sweetman, 2 Ir. E. Eq. 141, p. 153, is on the person who affirms the existence of the requisite knowledge. Where one of the rights between which the person Doubtful would have to elect was doubtful — as depending on a te deter- will of which the construction did not appear clear — the Court of Chancery directed a case for a Court of law to determine the construction so far as related to real property in England. Chalmers v. Storil, 2 Y. & B. 222. At the present day, of course, the Chancery Division of the High Court would itself determine the question. It may be observed, that in Douglas v. Douglas, Of a suit -n-r TT r^ t or action to 12 Eq. 617, p. 637, Wickens, V.-C, expressed some ascertain doubt whether it was not too broadly stated in Butrieke v. Brodhurst [supra) that the Court of Chancery would in all cases entertain a suit by a person put to election to ascertaia the values of the objects between which election was to be made. He agreed that, before compelling election, the Court would secure to the person all necessary iaformation, g5 130 Knowledge necessary for Electing. and that it was no doubt generally trae that wliat- ever the conditions which the Court would impose for a person's benefit before making an order against him, he could get the benefit of those conditions by- filing a bin and offering to submit to an order. He doubted, however, whether a widow, entitled to elect between her rights as widow and a legacy given her in satisfaction of such rights, could, if an estate of her husband's had been given by him to a stranger, have sustained a bill against the executors and such stranger to have the value of the estate ascertained. In the event the question did not arise ; but it is diificult to see how the V.-C.'s doubt could be sup- ported without conflicting with the proposition, which seems thoroughly well established, that the person having to elect is entitled first to know the values of the properties between which he is to elect. ^™?, ^ It will be observed that, in the absence of the receipt of ' oneinterest knowledge requisite to enable a valid election to be not con- ° ^ elusive. made, the fact that even for several years the person liable to elect has taken one of the interests and given up or abandoned the other, is not conclusive against him. In Wake v. Walie, 3 Bro. Ch. 255, the time was three years; in Sopwith v. MaugJian, 30 Beav. 235, fifteen years ; in Siceetman v. Sweet- man, 2 It. E. Eq. 141, about forty years. And compare Butricke v. Broadhurst, 1 Yes. jun. 171, already mentioned, p. 127. Express What knowledge is requisite for an election by express declaration to be binding, it probably is not possible to say with precision; it is apprehended Knowledge necessary for Electing. 131 that sucli an election can be made witliout tke need for anything like the full knowledge laid down as necessary for an election by acts. A declaration, if sufficiently explicit, can set at rest all question as to intention, and there appears no reason why it should not suffice to enable a person (in the absence of all fraud or anything approaching it) to elect one interest and renounce all other interests incompatible with it, including — if it is clear that such was the intention — interests, the precise nature or value, or even the existence, of which were unknown to him at the time of election. ( 132 ) CHAPTEE VIII. WHAT ACTS ON THE PAET OF A PERSON WHO HAS THE KEQTJISITE KNOWLEDGE WILL AMOUNT TO ELECTION. Actual jq'o special form is required for the declaration of an election a /^ _^ _ question of election. The question is merely one of intention ■ intention. ,r. . i -i- t sufficiently manifested. "It must be shown that having that knowledge he intended to elect." Worthington v. Wiginton, 20 Beav. 67, p. 74. And a docimient not intended as an election cannot he treated as amounting to one. Douglas v. Douglas, 12 ■Eq. 617, p. 649. Express An express declaration of acceptance of the pro- tion. perty given, or of retention of the property owned already, will, of course, he a valid election. It may he by counsel at the bar at the hearing. Lamb v. ^wner^o? ^"-^^^ ^ ®®*°^ (^*^ ^'^•)' P" ^^3. And generaUy any *^P'^°- act will constitute election by which the person liable given. to elect treats himself as owner of the property de- vised or given to him, or otherwise exercises over it a dominion which, unless on the basis of its having been given to him and his having accepted it, he has no right to exercise. Even if the mode in which he deals with it is inconsistent with the terms on which it was given, stiU the dealing with it as his own at all may be held to be an election to take it, What Acts constitute Election, 133 as in Briscoe v. Briscoe, 1 J. & L. 334, where pro- perty was given to a daughter on certain trusts for herself and her husband and issue, and she settled it on different trusts. On the other hand, in Beere v. Frendergmt, Hayes & J. 384, it was determined that where a person to whom property is given by will in a mode of settlement re-settles it iu a way not at all consistent with the limitations of the will, he does not by such settlement elect to take under the will. A somewhat sinular case to Briscoe v. Briscoe was Cookes V. Sellier, 1 Ves. 234, where a person to whom copyhold land was devised for life with re- mainders over, was held to have taken it as devisee, and not (as he might have done) as heir, from an enfranchisement in which he recited himself to be devisee, notwithstanding that in a subsequent con- veyance (reciting the enfranchisement) he created a term which was ia excess of his power as devisee. But acts of ownership or dominion exercised over Acting as a person's own property, and which would be need- one's less or inappropriate if he had given it up and taken property, the other instead, are apparently not of so much force in showing an election to retain it, as acts of ownership over another person's property are in showing an election to accept it. (The case in which there are acts of dominion over both properties will be specially, considered afterwards.) Thus, a devise of a share in real estate to a daughter ia tail, in satisfaction of her interests under a marriage settlement, was accepted by the devisee suffering a recovery of the estate. Hardwicke, L. 0., in Watson v. Earl of Lincoln, 134 What Acts constitute Election. Am K 325, p. 327, n. (6); Giddings.y. biddings, Z Eus. 241. But where a testator, entitled to an estate tail in P., devised certain estates of his own to his son and heir, and devised P. to his son for life with remainders over, the son was not held to have elected to take against the will merely by his suf-- fering a recovery of P. Grant, M. E., in Welby v. Welby, 2 V. & B. 187, p. 200. Special Besides simple and plain acts of acceptance, as amounting receiving a legacy, or taking possession of devised election, estates, the following are among the facts which have heen held to point to the same conclusion : — Declaring an intention to abide by the instrument giving the right, as in Stratford v. Powell, 1 Ba. & Be. 1, p. 23. Defending the possession against an ejectment, while having no title except under the instrument. S. C. Obtainiug an Act of Parliament which recited that the property had passed under the instrument. Beaulieu v. Earl of Cardigan (a), Amb. 532, p. 638. Bringing a bill for an account against the trustees in whom the property had been vested, and thereby implying that the trust was at an end. S. C. But where a will puts a person to election, he does not elect to take under the will by proving it, and (a) The reversal of this case in the House of Lords (3 Br. P. C. 277), since it proceeds, as already shown, pp. 9, 10, on the basis of the case not being one of election, but of performance of a condi- tion, does not, it is conceived, aflfect the decision of the Court below as an authority on the acts which constitute election. What Acts constitute Election. 135 taking the property officially as executor. Buiricke Y. Brodhurst, 3 Bro. 88 ; Archer v. Pope, 2 Ves. 523, p. 527; Morgan \. Edimrds, 1 Bl. N. S. 401. Secus, if, in. addition to proving, lie takes benefits under it. Archer v. Pope, 2 Yes. 523 ; Whitleij v. Wlutley, 31 Beav. 173. Putting it out of one's power to comply -witli tlie instrument is an election to take against it ; as where one sold a certain property to A., though required hy the will to leave it to B. Lewis v. King, 2 Br. Oh. 600. Where the person liahle to elect does acts which "Electing by themselves would amount to an acceptance of the toth." property or interest given him, while showing by other acts an intention to retain the property or interest belonging to him, so that, as it is expressed in some eases, he " elects to take both," this is (at least, generally speaking) no election at all. This appears from Dillon v. Parker, and more expressly from Padbury v. Clarke. In Dillon v. Parker, 1 Swan. 359, under a mar- riage settlement, property in Worcestershire, and a house in Salisbury Court, were vested in Sir Henry Parker for life, remainder to his son, John Parker, in tail, remainder to Sir H. Parker in. fee. John Parker purported to devise these estates (after his father's life interest) to his sisters in fee, and he devised and bequeathed much property of his own to his father. John dying without issue, his father dealt with all the property as his own, both that in the settlement and that devised and bequeathed to 136 What Acts constitute Election. him, and lie disposed of the former by his will. On these facts, Plumer, M. E., was disposed to thiak, though it was not necessary to decide, that the father, who was clearly liable to elect, had not made an election. "That he proved the wOl of his son and entered on the estates devised to him is not sufficient. Did he not exercise dominion over his own estates as if the son had not devised them ? Taking both estates, enjoying that which was his own, and also that given to him by his son, how can it be said that he reHnquishes one estate, and elects to take the other? Has he not rather elected to take both?" (pp. 379, 380). So Rathhorne v. Lord Aid- borough, Hayes, 207, p. 216. In Padbunj v. Clarke, 2 Macn. & G. 298, M. was liable to elect between the moiety of a freehold estate which belonged to her (subject to an existing life estate), and the moiety of a leasehold house which, was bequeathed in trust for her. During her mi- nority, her father received the rents of the latter,, used part of them for her maintenance, invested the residue, and on her coming of age, the lease having then run out, paid her the accumulated sum. From the freehold house she was deriving no income, but in a mortgage and a marriage settlement she pur- ported to deal with her moiety of it, and she joined with others in granting a lease of the whole. Cotten- ham, L. C, held that she had not elected ; if both the houses had been producing income, to have received the income of both would have been no election ; and so, if one was not yielding income, but ■ What Acts constitute Election. 137 still she dealt "with it as her own (especially as it was with the knowledge and oonourrence of the person who could have called on her to elect), this was, as far as possible, an equal dealing with the two pro- perties, and left her still free to elect (pp. 306, 307). This last case received, in Spread v. Morgan, 11 H. L. C. 588, the approval of the House of Lords (pp. 603, 613, 616). The same principle appears to be implied, though it is not distinctly stated, in the earlier case of Rum- bold Y. Runibold, 3 Ves. 65, where an attempt was made to devise copyholds, which instead passed to the heir, to whom an annuity was bequeathed. He received a half-year's payment of the annuity, and he also procured admittance to the copyhold and m.ortgaged it. It was treated as being still open to him to elect to take under or against the wiU. These cases appear to be irreconcileable with, and must, it is conceived, be taken as overruling on this point, Criddings v. CHddings, 3 Russ. 241, and Briscoe V. Briscoe, 1 J. & L. 334 (which both preceded Pad- bury Y. Clark), and probably also Worthington y. Wiginton, 20 Beav. 67. In this last case the testator, having invested a certain sum in stock in the names of himself and his wife, by wiU gave this stock, as also freeholds, leaseholds, and any other stock he might have at his decease, in trust for her for life, with remainders over, and gave her his residue and. appointed her executrix. She proved the will. As proof that she elected (if at all) to take against the will, the following facts were adduced : — 1 . It was greatly for her interest to take against it. 138 Whai Acts constitute Ekction. 2. She swore to the value of the estate, not in- cluding the stock which survived to her. 3. She transferred it into her own name and added to it on her own account. 4. On a second marriage she settled the total so formed, and afterwards hequeathed it without any intimation of any one else being inte- rested in it. As proof that she elected to take under the will — 1. She received and retained all the rents of the property, dehts due to the deceased, and his furniture, and occupied one of the houses. ■ 2. When by a death a certain person had become absolutely entitled to the testator's property, if the widow was not taking under the will, she took no notice of his rights, but continued in receipt of the income. EomiUy, M. Ei, held that the latter conduct was referrible only to an election to take under the will, and treated Dillon v. Parker as laying down no principle of general application ; otherwise, he said, "no election short of actual declaration of election, could ever exist " (p. 81) ; a conclusion the necessity of which is not manifest, as Dillon v. Parker does not question the effect of acts showing an acceptance of the one property, except where they are counter- balanced by acts showing a retention of the other. He also considered that in Padhury v. Clark, the evidence in favour of a conclusive election having been made was by no means so strong as in this case. It may, however, be doubted, notwithstanding these attempts to distinguish it, whether Worthington What Acts constitute Election. 139 V. Wiginton can on this point stand along witli Dillon V. Parker and Fadbury v. Clark, and the approval of the latter by the House of Loi'ds. Where, however, the person who claimed not to have decisively elected was under a duty to elect, he was held bound by his acts, and, possibly, even without that duty he would have been bound by express statements that he " relied on " the vsdll, by reciting the will in a mortgage as part of his title, and by u^ing it for his defence ia an action, and would have been held to have elected to take under it. The case referred to is Morgan v. Morgan, which at the first hearing, 4 Ir. Ch. E. 606, was held to be governed by Padbunj v. Clark, but on a fuller ascertainment of the facts relied on in proof of elec- tion was held to be distinguishable, 2 Ir. Jm:. N. S. 166. Here a testator devised lands, of which he was seised in fee, to H., and lands iu tail, which in fact passed afterwards to H., he devised to M. H. took the rents of both, but showed, by various declarations and acts, above alluded to, that he was taking under the wlU, and relied upon it for his title. He had all necessary knowledge of the values of the properties to enable him to elect, and also he was trustee for M., and as such was bound to raise the question of election and have himself put to elect. It was held that he had conclusively elected to take the lands devised to him. From the case just considered, of an election to After take both properties, must be distinguished the case takVone," where, after a deliberate and decisive election to take eiect^otiier. 140' What Acts constitute Election. one property, acts are done -wliich ty themselTes would point to an election to take the other. Such acts are in that case too late to have any effect, and cannot get rid of an election already conclusively made. Thus, in the case already mentioned of Billon V. Parker, 1 Swan. 359, Sir Henry Parker, by a will which gave many other benefits to his two daughters, devised certain lands to them and their issue with remainders over, and the daughters — who might have claimed the lands in fee simple against the will — acted as tenants for life, and in several deeds, in which they had professional advice, described themselves as such, and in mortgages reserved the equity of redemption to them or the persons entitled under Sir Henry's will. It was held (pp. 386 et seq.) that by these acts they made a deliberate election to take under the will, and, both daughters dying with- out issue, a devise of the property by the survivor — •■ which was ineffectual if she had given up the fee simple — was of no avail to counteract the effect of that election (p. 393). So, per- Similarly, it is apprehended that where the earlier position of acts, though not such as to constitute an intentional others , . , injuriously election, have put it out of the power of the party to do justice to the other persons interested, in case he subsequently elects against his original acts, he wUl not be allowed so to elect. In Bumbold v. Rumhold, 3 Ves. 65, an heir who had taken land as such and mortgaged it, was held free to elect afterwards to let it pass by the will, and to take an annuity under the will. But the land could only pass subject to What Acts constitute Election. 141 the mortgage, this having been validly effected, and the persons interested under the wUl would accord- ingly be damnified, and were told to " apply to retain the money arising from the annuity that is in their hands." In the actual case that may have been sufiBeient, but it would obviously be possible that the heir's interest under the will might not be sufficient to pay off the mortgage, and it is hardly conceivable that he would in that case be allowed to take under the will except on the terms of himself clearing off the mortgage. The general proposition above stated appears to be also supported by Moore v. Butler, 2 Sch. & Lef. p. 268, in which it is re- marked, of the contention that a person had elected to take under a certain deed, " But the facts on which this is contended are so extremely various that it would have been impossible to hold him bound if he could have put the parties affected by that clause into the condition in which they would have been if he had not done those acts." A person is not bound by an election made under Election a mistaken impression that it would be binding on mistake. other persons who, not being in fact bound by it, are able to take from him by a superior title the property which he has elected to accept. Kidney v. Cotiss- maJcer, 12 Yes. 136, p. 152. Where a number of persons, as, e. g., next of kin. Each per- , , son elects have to elect, each is entitled to elect separately ; the separately. choice made by the majority does not bind the minority, nor does that made by the administrator bind the rest of the next of kin. Fytehe v. Fytche, 142 What Acts constitute Election. 7 Eq. 494. And where property is given to A. for life, with remainder to his children, if A., having to elect between this life interest and other rights, re- nounces the life interest, the children's interest in remainder is unaffected. Wardy. Baugh, 4 Ves. 623. This case, however, was decided on the words of an express clause of forfeiture. The question whether an implied election hy tenant in tail was binding on the issue in tail was raised, but not decided, in Long V. Long, 5 Ves. 445, p. 447. ( 143 ) CHAPTEE IX. OF DYIXG WITHOUT HAVING MADE ELECTION. Where the person who is entitled to elect fails to Eight to make election, and dies without having done so, the Tives to right to elect passes to his representatives. Fytche v. tatives. Fytche, 7 Eq. 494, where the poiat was assumed throughout without discussion ; In re Sewson, D'Almaine v. Moseley, 23 L. J. Ch. 256. Sarris v. Watkins, 2 K. & J. 473, was an excep- Land given tional case. There land was devised to a person in tion of satisfaction of debts due to him. from the testator, and the devisee died three days after the testator ; it was held that, inasmuch as the devise was not a conditional one, the land would vest in the devisee at once and until disclaimed, and the extinguish- ment of the dehts would follow as a consequence of his acquisition of the land. The question, therefore, was whether there was any ground for the Court to presume a disclaimer, and though, as "Wood, V.-C, said, the Court would probably " struggle hard to presume a disclaimer," if the land were worth much less than the debts, there was no ground for it to do £0, where it was not manifestly for the devisee's interest to disclaim ; and the debts not being in the made. 144 Death without Electing. actual case more than the value of the land no such presumption arose. This case, it is apprehended, could form no pre- cedent for a case of election proper. If a will gave land to A., and purported to give A.'s land to B., although the former land would vest in A. until disclaimed, yet A.'s own land would not he divested out of him by the operation of the wiU, as the debts were held to be extinguished in Harris v. Watkins. Whether It is laid down in several early cases as settled, tatives especially in respect of claims arising under the though no custom of London, that at the death of a person election entitled to elect against a will, but who has acquiesced under it for some time, though without taking any decisive step, the representatives of such person will not easily be admitted to maintain that the right of election is stUl open to them. Tomkyns v. Ladbroke, 2 Ves. 591, p. 593 ; Pawkt v. Belaval, 2 Ves. 668 ; Harvey v. Ashley, 3 Atk. 607, p^ 616. It was con- sidered that this was so even in cases where the person himself, if still living and before the Court, -might have had an election. Archer v. Pope, 2 Ves. 623, p. 525. It may be doubted, however, whether this principle would be applied at the present day. The modem cases above mentioned show no trace of any such principle. And in Billon v. Parker, 1 Swan. 359, it was said, by Plumer, M. E., that whether or not the acts of Sir Henry Parker, the person liable to elect, would have concluded him had it been insisted during his life that he had made election, yet it was " doubtful whether on his death Death tvithout Meeting. 145 the daughters had any further right than that of requiring his representatives to make their election. On that point, the Court has intimated a disposition to hold that, if the representatives of those who were bound to elect, and who have accepted benefits under the instrument imposing the obligation of electing, but without explicitly electing, can offer compensation and place the other party in the same situation as i£ those benefits had not been accepted, they may renounce them and elect for themselves" (p. 385). H ( 146 ) CHAPTER X. OF DELAY AND OF WAIVER. The effect of delay in questions of election is to be considered in a double aspect, i.e., as regards its effect (1) on the right to elect ; (2) on the right to put another person to election. Eight to In Brice v. Brice, 2 MoUoy, 21, it was held by elect — whether Hart, L. C. of I., that " there is no time limiting delay. the right to elect," and he followed a decision of Grant, M. E., in a case not named, that a person having the right to elect is not barred by allowing any length of time to pass before he make^ election, unless (Istly) great injury would arise to others by holding that he still had the right, and also (2ndly) he knew of his right to elect. To put this decision in other words : As a person cannot validly elect, so he cannot lose the right to elect, without knowledge of his right ; and even when he has such knowledge, he still does not lose the right to elect by inaction, unless it would do serious injury to others to hold that he still has the right (a). (a) In Sutricke v. Broadhurst, I Ves. jun. 171, Thurlow, L. C, says that the House of Lords in Lord Beaulieu v. Lord Cardigan, Amb. 632, 3 Br. P. C. 277, decided that the right of election lasted fifty years, that is, that, under certain circumstances, it might still Delay and Waiver. 147 "WTiere, however, there is knowledge of the right io elect, the question of the effect of delay alone upon that right can hardly arise, as the person delaying his election will almost always be in possession or enjoy- ment of one or other of the interests between which he has to choose, so that the question usually arises as one of implied election by acts. As to the effect of the delay on the part of the Effect of person entitled to call on another to elect, it was said i-igM to^ by Chelmsford, L. C, in Spread v. Morgan, 11 H. L. eStion. €. 588, p. 617, " No authority was produced for the position that a person, having an equity to compel an ■election, forfeited that equity by delay in enforcing it ; " cases which referred only to the effect of ae- •quieseence on the person having the right to elect being no such authority. Delay will at least be no Where in- bar as long as one or both of the interests between rever- whieh the election has to be made is merely rever- sionary. Thus, in Padhury v. Clark, 2 Macn. & Gr. 298, it was held that where the testator, whose will raised the case of election, died in 1812, and the person liable to elect came of age in 1831, but the bill to compel her to elect was not filed till 1847, it was not too late — as one of the interests between which she had to elect was still reversionary, a previous tenant for life being yet alive. Delay in raising the question of election may, Delay may bar last eTen after that lapse of time. Properly speaking, however, Lord Beaulieu v. Lord Cardigan was decided in the House of Lords as a question, not of election at all, but of failure to comply with an express condition. See pp. 9, 10. h2 148 Delay and Waiver. account of eveii if it does not bar the riglit altogether, be yet a profits. bar to a claim for an account of rents and profits of the property elected against. In Schroder v. Schroder, Kay, 578 (affirmed 18 Jur. 987), younger children were entitled to put the eldest son to election between an estate which devolved upon him as heir and his rights under the will. He had received the rents of the estate from the father's death in 1832; in 1835, on the widow's re-marriage, the rights of the younger children to put him to election arose, but they were then all minors. One came of age in* 1840, one in 1842, one not till 1851. The special case raising their claim was not filed till 1853. It was held that the two elder of these children were barred by their laches of 13 and 11 years respectively from any account of the rents and profits received by the heir before the filing of the special case, but that the youngest child was not barred, and in respect of his share it was decreed that the heir, if he elected to take under the will, must account for all the rents received since 1835. As the right to compensation does not arise until election is made, so the claim to it can only be barred by delay reckoned from that date. Spread V. Morgan, 11 H. L. C. 688, p. 617. No waiver There will be no waiver of the right to put other alio in- persons to election by any act which was not intended to be such waiver, but was done solely with another object. In Seton v. Smith, 11 Sim. 69, a lady, who had only a life interest in personalty with remainder to her children, supposed herself entitled tuitu. Delay and Waiver. 149 to it absolutely, and by ber marriage settlement settled part of it in trust for ber bu^band, at tbe same time releasing a cbarge wbiob sbe bad on tbe real estate in wbiob tbe cbildren "were interested. Tbe busband bere bad a rigbt to put tbe cbildren to election. After tbe marriage tbe mistake was dis- covered, and it was found tbat certain stocks wbiob were supposed to be in tbe lady's name were in tbe names of ber fatber's trustees. An indorsement was put on tbe settlement stating tbat fact, and tbat tbe busband and wife and otber parties to tbe settlement agreed tbat tbe trustees sbould continue to bold tbe stocks on tbe trusts of tbe fatber's will. It was beld tbat tbis indorsement was no waiver by tbe busband of his rigbt to put tbe cbildren to election, no suob intention being expressed, " tbe sole object " being " to remove tbe doubts wbiob otherwise wotild bave existed as to tbe trusts to wbiob tbose sums of stock were subjected." ■ " Waiver or acquiescence, Kke election, presupposes Full tbat tbe person to be bound is fully cognisant of bis needed, rights, and tbat being so be neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which be might claim." Vyvyan v. Vyvyan, 30 B. p. 74. And a release of a right of election is, of course, of no avail if given without full knowledge of the right released ; a fortiori, if procured by suppression of material information respecting the rigbt. Salkeld V. Vernon, 1 Eden, 64. ( 150 ) CHA.PTBE XI. QUESTIONS ARISING IN CASES OF ELECTION TO TAKE AGAINST THE DOCUMENT, AND CHIEFLY OF COM- PENSATION. Liability Jx is now Well estatlislied that if the person who has of person . , taking to elect stands on his rights and refuses to allow that against ,.-.,. instru- which IS his own to go according to the disposition made of it by the will or other document which raises the ease of election — if, as is commonly said^ he elects against the document — he does not thereby forfeit his rights under it entirely, but only to such an extent as is necessary for making full compensa- tion to the person disappointed by his choice. Mtae'^but Ti^s, though it was at one time regarded as doubt- compensa- f q]^ ig the doctrine of the very earliest cases. Thus^ in Tedot v. Spencer, Preced. in Ch. 5, (1689,) Sir- Thomas Spencer had settled a manor in trust to raise .after his own decease a certain sum, including 2,000/., for his eldest daughter. By his will, he devised the manor to his wife for life, and declared that his lands- of inheritance were to descend to his daughters, and the lands given to his wife were not to be charged with any sums of money to his daughters by virtue of the settlement. The eldest daughter claiming- nevertheless to have her 2,000/. raised, it was held. Compensation. 151 tliat she was entitled to it, and the widow " was to be re-imhursed out of the inheritance what her estate for life should be damnified in this matter." So in the A)wn. case in Gilbert's Ca. in Eq. 15, where one having lands in fee simple and lands in tail dsTised the fee simple lands to the eldest son, the heir in tail, and the entailed lands to the younger son, it was held that " the devise of the fee acre to the eldest son must be understood to be with a tacit condition that he shall suffer the younger son to enjoy quietly, or else that the younger son shall have an equivalent out of the fee acre," and the same was decreed accordingly : and so in Streatfield v. Streatfield, Gas. t. Talbot, 176. But in sundry cases about the middle of the eighteenth century, chiefly cases of election between the custom of London and wills, loose ex- pjessions were used, such as that a child " must abide by the will only, or by the custom only " [Coicper v. Scott, 3 P. Wms. 119, p. 124); "there can be no taking by the custom and under the will too " {Morris V. Burroughs, 1 Atk. 399, p. 404), and like phrases in Pitgh V. Smith, 2 Atk. 43, and Coolies v. Hellier, 1 Ves. sen. 234 ; in none of which, however, was the question between compensation and forfeiture ex- pressly raised. Later on, there were similar general expressions in Villa Real^. Galway, 1 Bro. Ch. 292, n. (where Camden, L. C, said: "It is admitted that every devisee must confirm the wiU in toto if he claims any interest under it, and wOl consequently forfeit such interest if he impeaches or intercepts any part of it ") ; Wilson v. Townshend, 2 Ves. jun. 693, 152 Compensation. p. 696 ; Wilson v. Mount, 3 Ves. 191, p. 194 ; Broome V. Monch, 10 Ves. 597, p. 609 ; TheUiisson v. Wood- ford, 13 Yes. 209, p. 220 : but in all these cases the language, though more appropriate to the doctrine of forfeiture, is of a general character which does not imply that the question as between compensation and forfeiture was present to the mind. The doctrine of ' compensation, on the other hand, which is in its nature a more definite one, was laid down in Ardesoife- \. Bennet, 2 Dick. 463, p. 464 ; Blake v. Bunbury, 1 Ves. jun. 514, p. 523 ; and Wliistler v. Webster, 2 Ves. jun. 367, p. 372 : and in Lady Cavan v. Pul- teney, 2 Ves. jun. 544, p. 560, Loughborough, L. C, quotes with approval the words of Grrej, L. 0. J., in Lord Darlington v. Pulteney, which expressly distin- guish it from forfeiture : " An express condition must be performed as framed, and if it is not, that will in- duce a forfeiture, but the equity of this Court is to sequester the devised estate quousqiie till satisfaction is made to the disappointed devisee ; " and Ward v. Baugh, 4 Ves. 623, p. 627, adopts this statement. Lord St. Leonards, however, maintained that forfei- ture was on principle the correct doctrine (see Note A. at end of this Chapter), and Eldon, L. C, in Tibbits- V. Tibbits, 19 Ves. 656, considered the question " very far from being settled," and in Green v. Green, 19 Ves. 665, inclined to the view that the doctrine of compensation was established only in the case of wills, and that a person taking under a settlement was a purchaser under it, and " if he will not give- the price intended by the parties to be paid at his^ Compensation. 153 cost he cannot take under it" (p. 669). This case, however, is said to have been finally compromised. 1 Sw. 371. The doctrine of compensation, which was enunciated also in Gretton v. Haward, 1 Sw. 409, Welby V. Welby, 2 V. & B. 187, p. 190, and Pad- bury y. Clark, 2 M. & G-. 298, is now fully established in cases of settlements as well as of wiUs; thus in Spread v. Morgan, 11 H. L. 0. 588, it was assumed throughout the case without argument, although the ease was one of election under or against a settle- ment. So also in Codrington v. Codrington, 7 L. E. H. L. 854, on a woman electing against a settle- ment, it was decreed by the House of Lords that the income she would have received had she elected to take under it should be applied to compensate the persons disappointed by her election untU. such com- pensation should be fully made, and when that was done she would then, "on the principle of having made compensation, be restored to the income pro- vided for her by the settlement" (p. 865). Although it is said in some of the above cases that Compen- the person disappointed by the election is to be com- pecuniary pensated out of the property which is given by the document to the person disappointing him, it is not to be supposed that he has a right to that particular property, but only to adequate compensation ; for the payment of which that property will in equity be made security. Pickersgill v. Rodger, 5 Oh. D. 163. As Jessel, M. E., observed in this case (see pp. 173, 174), the doctrine of election as it now stands is merely a doctrine of compensation : it is not that a, h5 154 Compensation. person cannot take the interest given Mm by the will or other document, and also retain his own interest which is given to some one else hy the same "docu- ment — "that is a mistake, because he can always take both provisions if he thinks fit. He is not bound to take one and give up the other. As I said before, he may take both, but the benefit that he takes under the will is subject to the obligation upon him to make good the consequent loss to the dis- appointed legatees " — to the extent, that is, and only to the extent, of the value of what he takes under the document. Thus, e. g.,vn. Kater v. Roget, 5 Jur. 5, where an invalid appointment was made by wiU of certain funds, which consequently went as if unappointed to Henry Herman Kater, and the will bequeathed to H. H. Kater certain books and a microscope, the funds were decreed to H. H. Kater, " he accounting for and paying .... the value of the books and microscope " : and compare the decree in Roberts v. Kingsley, 1 Yes. 238 ; see Belt's Supplt. p. 129. The person to be compensated will evidently not be entitled to more than the value of the property given to him by the testator or settlor. But also the person who has to make compensation will not be bound to give more than the value of the property- given to Mm. So that practically the compensation to be made will be the value of whichever of the two — the property of the testator's own, given to the one person, or the property of that person, given by the testator to a third — is of the less value. Say that Compensation. 155 the testator devises X. to A. and devises T. (whicli belongs to A.) to B. A. may take X. and give up T., or retain Y. and let X. go to B., or take X. and retain T., and pay B. the value of X. or Y., which- ever is the less. B. cannot claim more than the value of Y., that being all the testator designed for him, and A. cannot be bound to pay more than the value of X., this being all the benefit he has taken under the will. As the interest given up by a devisee who elects against the will has to go to compensate the devisees disappointed by that election, it follows that it will not be appKcable to benefit a devisee who is disap- pointed by reason of the testator not owning all the property he purported to give, part of it belonging to a person who is not put to election. Thus, in Howelk V. Jenkins, 1 De Gr. J. & S. 617, a testator who owned half of T. gave T. to William and Elizabeth; William, having to elect, and electing against the will, gave up the interest devised to him in T. ; but this did not enable Elizabeth to maintain with success that the whole of the testator's actual interest in T. was to go to her, that he meant to give her the half of T., and had the half of T. to give, and that, William taking none, she should take the fuUhaLE(«). In an early case, Kitson v. Kitson, Free, in Ch. (a) This case, Howells v. Jenkins, Tvell illustrates the way in which election is to he worked out, especially where there are some adverse claimants who are not put to election. Details will be found in Note B. at the end of this Chapter. 156 Compensation. 351, it was held that, by insisting on rights para- Inount to the will in respect of personalty, one lost' the personalty given by the wiU, but not the realty also. This view, however, was contravened, and the' opposite doctrine, that to take against the will in- volved the loss of the property given by the wUl, both realty and personalty, was established by Coivper V. Scott, 3 P. W. 119, p. 123, Vincent v. Vincent, cited 1 Ves. p. 260, and Jenkins v. Jenkins, West,. 665, n., and is now utterly beyond question. Compensa- The persons to be compensated, if more than one,, in propor- take the property which is to be applied in compen- losses. sation, among them, in proportion to the interests of which they are disappointed. Thus, where stock, was bequeathed to L. for life, remainder to charities,, and the residue of the testator's property was given to F., who was, in fact, entitled to the stock, and elected to take it, the residue was divided between L. and the charities in proportion to their interests in- the stock. Attorney-General v. Fletcher, 5 L. J. N. S.. Ch. 75 ; compare the decree in Soicells v. Jenkins, 1 De G. J. & S. 617, p. 621; 2 Seton (4th ed.) 934,. form 6, and see post, Note B. Past re- ■ Where election is made against the instrument ceipts to be . . accounted after money or other property, capital or income, has for. been received under it, the sums so received must bo' brought into account for the purpose of compensation being made out of them. To this extent the election relates back. The date to which it would relate would naturally be the date at which the person was first liable to be put to election ; if at that time he- Gompensation. 157' had elected against the instrument, he could have taken nothing under it until compensation had been fully made, and his position ought not to be the better because he has not made the election till some time afterwards. Thus, in CFretton v. Haward, 1 Swan. 409, it was held that an estate devised, but lost to the devisees by their electing to take against the will, must be accounted for from the death ; and the devisees, having been in possession, must account for the rents and profits of it, paying an occupation rent and being allowed all sums expended in the amelioration of the estate (pp. 435 — 444). So, in Padhiirij V. Chrli, 2 H. & T. 341, a devisee of leaseholds who elected against the will had to account from the testator's death. In Codrington v. Lindsay, 8 Ch. 578, a wife who took benefits under a post- nuptial settlement, which purported also to settle a reversionary interest of hers ia rupees, was divorced, and afterwards the rupees fell into possession. She elected to take against the settlement, and retain the rupees, and had therefore to account for what she had received under the settlement. She claimed to be only bound to account from the time the rupees fell into possession, but it was held (pp. 593, 594), that the account must go back to the time of the divorce, or, more strictly, the decree nisi. She was not re- quired to account for the income received prior to the decree, whether because the claim that she should do so was not pressed, or for some other reason which is not reported. In reason, it would appear that she should have been liable to account for it, as the lia- 138 Compensation, bility to te put to election existed from the original date of the settlement, the coverture' heing no im- pediment ; if it had been any, she would not have been capable of electing at the date of the decree nisi, as the coverture exists till the decree is made absolute. How the If a devisee is unwilling to give up property of his be com- own which is given from him, it has been seen that takes. he may either take the devise to him and make com- pensation to the disappointed devisee for what he refuses to give up, or may refuse the devise to him altogether. It is conceived that, in the latter event, the property devised, if freehold, will (in the absence at least of any decree of the Court) vest at law in the heir. Although in Hamilton v. Jackson, 8 Ir. Bq. E. 195, it was held that a devise or bequest so disclaimed does not pass to the heir at law or next of kin as undisposed of, but goes to the disappointed devisee or legatee, it is apprehended that it was not there intended to lay down anything about the legal estate or interest, but that the beneficial interest only was under consideration. In Gretton v. Haward, 1 Sw. p. 424, it was said that in case of election against the instrument, the disappointed devisee takes the renounced property, " not by descent, not by devise, but by decree, a creature of equity " ; and the decree in that case did not direct any conveyance to be made, either by the persons eleotiag (Jane Haward and her children), or by the heir at law (as having had the estate cast upon him by their election against the vrill), to the person entitled to compensation (Eliza- Compensation. 159 beth Haward), but simply declared that she was entitled to the estate devised to the first-named persons, and ordered that she should be forthwith let into possession of the said estate and into receipt of the rents and profits thereof accordingly (pp. 442, 443). Similarly the decree in Sowells v. Jenkins, 1 De Gr. J. & S. 617, p. 620, merely directed that the estate renounced by the devisee who elected against the will should " be apportioned " between the dis- ajDpointed devisees, without declaring in whom it was already vested, or directing any conveyance. In the absence of a decree, however, as if the person recog- nized without suit his liability to be put to election and proceeded to elect against the will, it is apprehended, as already stated, that in case of freehold the interest renounced must vest in the testator's heir — from whom, consequently, a conveyance must be obtained if the disappointed devisee, beneficially entitled to it, wished to get in the legal estate. Moreover, as the disappointed devisee is only entitled to the value of whichever of the two, the gift to him and the gift to the person who has to elect, is of the less value, and is not entitled to anything in specie, it would appear that if the heir vsdll satisfy the disappointed devisee the sum which the latter is entitled to receive, the heir can retain the property which has devolved upon him, and would only be compellable to convey it on his refusing to pay that sum. This is substantially the view expressed in Laurie v. Clutton, 15 B. 131, where the case supposed is that a testator devised real estate to A., and disposed of 1,000/. belonging to 160 Compensation. A. in favour of B. " If A. elected to take under tli& wiU, he would take the estate charged with the- 1,000/. in favour of B., and if A. elected to reject the will, the heir at law of the testator would in like manner take the estate, but would do so hurthened with the payment of 1,000/. in favour of B., and if both A. and the heir at law repudiated .the real estate, of the testator, B. would himself take it as if he had been the original devisee thereof." The passage, it is conceived, is not quite accurate in expression, as the heir would not take the estate " burthened with" the payment of anything more than its value, and. if he wished to have nothing to do with the pro". perty, he could not " repudiate "an estate which had descended to him, but his- course would be to convey it to B. in complete satisfaction of B.'s claim. Compensa- The same ease, Gretton v. Hmcard, further decided tion inde- ■ n pendent that a person would be entitled to compensation for teneflts. what he lost through another person electiag against the will, notwithstanding that such election did not deprive him of all interest in the property, but that he had a partial interest in it independently of the will. The property in question was land of the annual value of 870/., which was so settled that E. was entitled to a share of the annual value of 145/. — we will say that E. would take 145/., G-. 145/., and W.'s Madow and children 580/. A testatrix pur- ported to devise this property so as to give E. 600/., G.'s representative 135/., and W.'s widow and children 135/., and she also gave to these last land of her own Compensation. 161 represented by 115/. W.'s widow and children and G.'s representative electing ' to stand upon their origiaal rights, E. received, instead of the 600/. given her by the wiU, only the 145/. which she took independently of it : she was held entitled to take this, and also to take the 115/. given by the wiU to W.'s widow and children, and which they were required to give up in order to make compensation. It was objected that E. was taking the 145/. agarast the wlU, and so could not be allowed to take the 115/., which was given by the wUl. It is obvious, however, that she took the 145/., not through any preference on her part of her original rights over the interest given her by the will, but merely because it was that part of the interest given her by the wiU which no one could deprive her of, and that she would have much preferred to take the full rights given her by the wUl. When a person elects to take against a document, Compensa- ^ . . ° . . tion out of and the "free disposable interest" given him by that a. life document is only a life interest, of course the income only can be taken for the purpose of making com- pensation. In StreatfleldY. Streatfielcl, Gas. t. Talbot, 176, where the election disappointed certain, devisees of property given them in fee simple, the decree (1 Sw. p. 448) ordered " a sufficient part of the rents and profits" of the life interest which was elected against to be invested in the purchase of freeholds, out of which an amount equal in value to the lands of which the devisees had been disappointed should be conveyed to them in compensation. In Lord Bar- 162 Compensation. lington v. PuUeney (see 2 Ves. jun. 553), an offer, in- stead of glTing up a life interest, to have it valued and to secure the value for the disappointed devisees was considered to be an offer which in their behalf (they being infants) it was desirable to accept, as by that means they obtained an interest not dependent on the risks attending the life. Eight to The right to compensation does not f uUy accrue compeusa- .... tion, when untU election is made against the instrument, and so complete ... , , . . „ . and when it IS Only a delay subsequent to that time, m enforcing the right to compensation, that can bar the person disappointed by the election of his right to such compensation {Spread v. Morgan, 11 H. L. C 588, p. 617) ; but the right is inchoate from the time of the instrument under which the election arises first coming into effect, and steps can from that date be taken for securing the right. And they can be taken to secure even a contingent interest : if a will gives benefit to A. and settles property of A.'s so as in a certain contingency to give an interest in it to B., B. is entitled at once on the testator's death to commence proceedings for putting A. to election and for having his own right to compensation if A. takes against the will properly secured. Morrison v. Bell, 5 Ir. E. E. 354. As long as the persons disappointed obtain or are secured (in any way) full compensation, that is all that they can claim. Thus, if they obtain such compensation under a covenant from the testator or settlor, they cannot obtain it also from the person electing. In Bor v. Bor, 3 Br. P. 0. 167, a testator Full com- pensation by any means is enough. Compensation. 163 purported to devise lands ■wMcli were entailed on Jolm and the heirs of his hody, remainder to Gerard and the heirs of his body, and he gave to Gerard certain lands of his own. John, for valuable con- sideration, covenanted with the devisees of the entailed lands to confirm the "will, but died without doing so and without issue, so that Gerard took the lands. It was held (p. 179), that as such devisees were entitled out of John's estate to damages for his breach of covenant, they could not (even assuming that Gerard was bound to elect) require compensation from him, except so far as by reason of insufficiency of assets they could not get full compensation out of John's estate ; for if they did get full compensation, it was practically the same thing as getting the entailed lands. It was doubted in Cumming v. Forrester, 2 Jao. Of oom- pensatiou & W. 334, whether the doctrine of compensation in case of could be applied in case of a person electing against against a a grant from the Crown. " If the party," says grant. Plumer, M. E. (p. 345), "elects to renounce what the grant has given him, the consequence is, that as to that part the grant does not take effect ; and, then, does not that part revert to the Crown ? Can the Court take hold of it to make satisfaction to the other? That is my difficulty." In this case, a testator had devised certain property between F.'s son and daughter, but the devise being iueffectual for want of adequate attestation, and the testatrix leaving no heir, the property vested in the Crown, and by letters patent was directed to be sold and 164 Compensation. divided equally between F.'s son and daughter. In; fact, however, part of it was not the property of the- testatrix, hut belonged to F.'s son, who had become- bankrupt ; and it was decided that if his assignees- insisted on their right to the whole of this, they^ must renounce the moiety given him by the Crown grant ia the rest of the property. What the effect would be if it were renounced is the doubt men- tioned above, but as the assignees elected to take the- moiety of all, under the Crown grant, the question did not come up for decision. Compen- The right of the person disappointed to compen- lost by sation out of the interest given by the document to the person who elects against it, is, of course, not lost by the death of the latter. A testator devised aU his real estate to his wife for life, and devised certain cottages, to which, in fact, she was absolutely entitled, after her death to his nephew. The vsidow having sold the cottages, and so elected to take against the will, the nephew's assignee was entitled,, after the widow's death, to compensation out of what she took under the wiU, and an inquiry was directed as to the amoimt of benefit received by her during her life under the -wiU, and the compensation due to the nephew's assignee for his loss, so far as such loss- did not exceed such benefit {Rogers v. Jones, 3 Oh. What lien D. 688), and for such compensation an action lay as for com- for damages. S. C, 7 Ch. D. 345. So Ch'eemcood' v. Penny, 12 B. 403, which last case also decides that the persons entitled to compensation have no lien for it upon the property which is taken against pensation. ComiJensation. 165 ihe will. As already stated, they have a charge for it on the property which is taken under the will. Fickcrsgill v. Rodger, 5 Oh. D. 163. The fact that the person who has to elect may hy Of de- electing to renounce a certain interest, e. g., an estate of a gene- I .1 J . IT ji . 1 ral chance. tail, deprive another person, as the remainderman after the estate tail, of a " general chance," and that in the property which would be received instead there would be nothing to make compensation to that person for the loss of that chance, does not afEect his right so to renounce. StreatficM v. Sireat- Jeld, Gas. t. Talbot, 176. It is not the custom of the Court to order a deed against which election has been made to be delivered up to be cancelled. Weall v. Rice, 4 L. J. N. S. <3i. 39. Where the interest which is taken under the Compen- ... sation out document by the person who elects agamst it is one of an in- which he cannot alien, so that compensation out of it interest not is impossible, such compensation is not required, and he takes both the interests. The cases by which this has been established are cases where the interest to be given up, if it had been possible to give it up, was an interest settled on a married woman for her separate use without power of anticipation, and they will be found more fully referred to in the chapter on Election by Married Women. In an early case, Webster v. Mitford (1708), 2 Eq. Ca. Abr. 363, mentioned in 1 Swan. 435, 456, the interest which a person gave up by electing against a will was applied to compensate the persons 166 Compensation. disappointed by sucli election, notwithstanding that the will itself expressly provided, that in case of her so refusing to accept the benefits given by it, they should go over to certain other persons specified. It was thought the " highest equity ' ' that as these persons profited by the election made against the will, they should compensate those who suffered from such election. This, however, would obviously not carry out the testator's manifested intention, and the case, it is conceived, cannot be regarded as any authority. Note A. The following is Lord St. Leonards' statement of the case, in favour of forfeiture and not compensation, as most in accord with principle : — " There is a tacit condition, annexed to aU provisions of this nature, that the person taking do not disturb the disposition which his benefactor has made {Streatfield v. Streatfield, For. 176) ; therefore, the true rule, following up the principle, should be forfeiture to the disappointed devisee, and not merely compensation. In many cases compensation could not be made, as in the instance of a field belonging to the adverse claimant given to a devisee because it is in front of his house : could compensation in that case be made with reference to the power in the owner of the land to render the house not fit for habitation? If compensation be the rule, there are but few cases in which the testator's intention will be effected. li the value of the property g^ven to the party who is put to his election be less than the value of his property given to a third person, or only equal to it, the party would in ordinary cases elect to take against the will. If the property even be greater, the party having a right to elect woidd, of course, in every case where he was desirous to retain his own pro- perty, or to disappoint the intention of the testator or Compensation. 167 "the hopes of his devisee, elect to take against the will, and pay a compensation to the disappointed devisee out of the testator's own property, which he (the paity electing) takes under the will. This clearly is not •effectuating the testator's intention, for he did not intend that the disappointed devisee should have the value of the suhject of the gift paid to him: his mean- ing was to vest in the party the property devised to him ; and to secure the acquiescence of the person really entitled to such property, he makes another pro- vision for him. If forfeiture in favour of the dis- appointed devisee be the rule, the testator's intention mU. in most cases be fulfilled ; and if the intention be not effectuated, at least the testator wUl not have made a provision contrary to his intention for a party who •elects to disappoint his wiU; and the disappointed devisee will take that provision which the testator thought would be a sufficient inducement to the party ■electing to acquiesce in the dispositions made by the ^viU." (Sugden on Powers, 8th ed., p. 576.) Note B. Hoivells V. Jenkins, 2 J. & H. 706 ; 1 De G. J. & S. 617 ; 32 L. J. Ch. 788 ; 9 L. T., N. S. 184 ; 11 W. E. 1050. In this case, each of two properties, Tyr-y-Wain and Pedola, was held as foUows : — Lewis -J-, WiUiam ]-, Llewellyn I. Lewis gave (after a life interest to his wife and another to Llewellyn, who, however, died in the lifetime «f the wife) these properties as if he owned the whole, thus : Tyr-y-Wain equally between William and Eliza- tieth — with a proviso that on the death of either without leaving issue, the share of the one dying should go to the other — and Pedola to the plaintiffs. As Llewellyn, taking in effect nothing under the will, was not put to election, his J was of course unaffected. 168 Compensation. If William took under the will, Lewis's will would operate on f of each property, which would go thus : — {Subject to the contingent limitation thereof, and with contingent inte- rest in W.'s f . Tyr-y-Wain. ■^ ( Subject to the contingent limitation I William, f . | thereof, and ■with contingent inte- ( rest in E.'s f . Pedola. (_ Llewellyn, r Plaiatifes, \ Llewellyn, But if WiUiain elected against the will, the property would go thus : Tyr-y-Wain. < Elizabeth, J. Pedola. ? h William, \. Llewellyn, J. Plaintiffs, J. William, i. Llewellyn, J. Subject to the contingent limitation thereof, and with contingent inte- rest in the next J. t Subject to the contmgent limitation ! thereof, and withcontingentinte- ( rest in Elizabeth's J the "?" representing the interest given to William by the will, and which, if refused by him, would go to compensate the persons disappointed by his election. There were, indeed, other benefits given to him by the will, but no claim appears to have been made for com- pensation except out of Tyr-y-Wain. Llewellyn, after the testator's death, conveyed his interest to the plaintiffs, who thus took, besides their own direct interest under the wiU, Llewellyn's interest, which was against the will, but who were not, in conse- quence of this union of interests, put to election {ante, P- 111)- The properties would then be divisible, on the death of the testator's widow, as foUows : — If William elected to take under the wiU : — EHzabeth, f . Tyr-y-Wain.^ William, f . I, Plaintiffs, J. Pedola Plaintiffs, the whole. Subject to the contingent limitation thereof, and with contingent inte- rest in W.'s f . Subject to the contingent limitation thereof, and with contingent inte- rest in E.'s -2-. Coiivpensation. But if William elected to take against the will : 169 Tyr-y-Wain. < Elizabeth, Pedola. WilHam, \. Plaintiffs, \. I "William, \. \ Plaintiffs, J. {Subject to the contingent limitation thereof, and with contingent inte - rest («) in the next \. I Subject to the contingent limitation < thereof, and -withcontingentinte- ( rest in Elizabeth's \. The latter was the election made, and \ of Tyr-y-Wain (subject to and -with the above contingencies) was there- fore applicable to compensate the persons disappointed by William's election. These, it wUl be seen, were the plaintiffs — who lost by it \ of Pedola — and Elizabeth — who lost by it ^ of Tyr-y-Wain (subject to the contin- gent limitation of it), and a contingent interest in another \. An inqidry was directed to ascertain the respective values of these interests, and the interest given up by William in Tyr-y-Wain was directed to be apportioned between the plaintiffs and Elizabeth in pro- portion to the values so ascertained. (o) The decree as reported in 1 De Gr. J. & S., p. 620, does not declare Elizabeth entitled to this contingent interest, but she obviously was so, and had she not been, she would have lost by William's election not merely a contingent interest in |^ as the decree declares, but in f . E. ( 170 ) CHAPTBE XII. QUESTIONS ARISING IN CASE OF ELECTION TO TAKE UNDER THE DOCUMENT. Election to There are naturally fewer difficulties that can arise confoiin to the docu- where the person who takes a benefit under a wiU or earned Settlement which gives some property of his to another person, is content to conform to the document, give up what is his own, and take what the instrument gives him. On his electing to take under the document, the property belonging to him passes in equity under the disposition made of it by the document, the legal estate, if already vested in him, of course remaining in him until conveyance. 2 Set. (4th ed.) 934, Form 5. The Court will, if necessary, declare him or his heir a trustee of such interest (ibid.), or if the property relinquished by him be a share in a trust fund, may direct him to execute a release of it Question to the trustees. Ibid. 935, Form 8. One question of election . , . . - . .____, . _ ^ in case of that may arise, however, is : vvhat if he is for some able reason unable to give up that which is his own ? Is in eres . -^^ ^^ .^ ^^ ^^^ ^-^^^ precluded from taking what is given him by the document ? The most recent decision on the precise point is that he is not so precluded — ^that he can accept the Talcing under the Document. 171; new interest, while at the same time retaining the old. In the old case of Wilson v. Toicnshend, 2 Ves. jun. 693, the opposite opinion was expressed. " If," said Loughborough, L. C, "a specific thing belong- ing to one of the legatees is by the will given to another person, the legatee cannot hold both. He must make himself competent to take the legacy by giving up that specific thing. Therefore the Court says there shall be an election, and gives an oppor- tunity of electing ; and will not easily hold the election concluded. But if the party is under re- straint and cannot accomplish that " — meaning, pre- sumably, cannot give up the specific thing which belongs to him — " it is the misfortune of the party, but the consequence is that while he continues in that situation his claim must be barred, for it is directly contrary to the intention and distribution of the property." It does not appear, however, that these remarks were needed for this case, where a married woman was claiming to take an annuity under the will, while still holding an estate tail which the will purported to devise away from her. The bill for the annuity was dismissed because the estate tail was clearly the better interest : this, of course, implies that she could not receive the annuity without giving up the estate tail, but it does not appear that her doing the latter was an impossibility. In Croker v. Martin, 1 Bl. N. S. 573, a House of Lord's decision (of which the material facts are stated at p. 587, and in which it was held that a i2 1"2 Talcing under the Document. person could not elect to take under a deed of 1731, and against a deed of 1739, -where the latter was Ms marriage settlement, and his wife and others were interested in his retainiiig his interest under it), it was held that the fact of his having by various acts recognized the deed of 1739 as " an operative deed which he could not get rid of " was " no argument to show that he and his descendants are not entitled to come in and claim under the deed of 1731 " (p. 591) ; so that it would appear to have been the feeling of the House of Lords that as there was no election, there was no case for compensation. A like difficulty arose in Wall v. Wall, 15 Sim. 513, where, a married woman having already a reversionary interest in personalty, property was left her by will on the terms of her giving up the settled interest, which, as Shadwell, V.-C, pointed out, there was no legal method of her doing. The V.-C. at first thought that the money bequeathed must be set apart to abide the ultimate decision of the Court whenever the question should be so raised that the Court could decide it. Ultimately, however, without logically explaining away the difficulty, he made an order simply disregarding it, and treating the married woman as able to give up the settled interest. On what principle he so acted does not appear : possibly on the ground that the money having been invested in land had lost its character of personalty. In Williams v. Mayoie, Ir. Rep. 1 Eq. 519, this illo- gical course was condemned, and the new interest was impounded until the legatee (a married woman) Talcing under the Document. 1~'5 should be in a position to give up her old interest (a reversionary interest in personalty) — a course based on the same principle as is enunciated in Wilson v. Toicnshend, that a beneficiary who cannot give up the one interest cannot be allowed to take the other which is to be in lieu of it. It was admitted that there was a hardship on the legatee, and Chitty, J., in noticing the case in In re Lord Chesham, observes that " it is at least questionable whether any equit- able doctrine ought to be so applied or worked out as to create what in the opinion of the judge is a hardship." This case, In re Lord Chesham, Cavendish v. Dacre, in re Lord 31 Ch. D. 466, is the one alluded to above as laying down the contrary principle, viz., that election does not arise in such cases, and that the new interest can be accepted and the old retained. There a testator gave certain chattels on trust for sale for the benefit of his younger children, and gave the residue of the estate to his eldest son, Lord Chesham. In fact the chattels belonged to Lord Chesham under a settle- ment under which it was impossible for him to alienate them, as they were to go and be held with a mansion house of which he was tenant for life. If put to Ms election between the heirlooms and the gift of residue, he was ready to accept the latter. The younger brothers claimed that he was bound to make compensation out of the residue to the extent of his interest in the chattels. But Chitty, J., held, firstly, that the doctrine of compensation had never been held to apply where the election was to take 174 Talcing under the Document. under and not against tlie instrument ; and, secondly, as already stated (p. 114), that in reality no case of election arose at all. Whether But the statement that the doctrine of compensa- tiouhas tion has not heen held to apply to election to take plied to under a document is, it is submitted, scarcely accurate, take under There are two cases, neither of -which was cited in In ment."' '"^ Lord Chesham, of such compensation — cases which arose in connection with the important question of the rights of the parties where the property which a person is required, and is willing, to give up has been previously incumbered by him, or w^here some other person has acquired a derivative interest in it from him. This question was especially considered in' > Griggs v. Gibson, 1 Eq. 685. In that case a woman, under her father's marriage settlement, had an estate tail in certain lands, and was also entitled to a share in personal property, which was vested in trustees. Her father's will gave her — she being then married — ' an annuity for her separate use and certain landed interests, and directed that the provision made by the ' will should be accepted in full for her interest under the settlement, and that she should do all acts neces- sary for relinquishing that interest, his wish being ' that the settlement should be annulled — the effect of which would be that the settled property would go as 1 part of the residuary estate under the will. During the father's lifetime, the daughter's husband became insolvent, and all his estate and interest became vested in the oflBcial assignee in bankruptcy. The father died, and the benefits given by his will being Taking under the Document. 175 mucli greater than those under the settlement, the lady was ready to give up the latter, but the husband's assignee claimed an interest in the property settled. Wood, Y.-C, held that, as to the personalty which neither the husband nor his assignee had reduced into possession, the assignee's interest in it being merely equitable, was defeate'd by the lady's election, but that as to the realty he could not be deprived of his interest in that in right of the husband or affected by her election. She could, with her husband's con- currence, bar the estate tail and convey the real estate to the trustees of the will, but only subject to the interest of the assignee. As she was unable, therefore, to give up to the residuary estate all that the testator intended her to give up to it, her annuity imder the will was laid hold of, and an annual sum, equal to the rents and profits of such real estate taken by the assignee, was directed to be retained out of the annuity by the trustees of the will and applied as part of the residuary estate. Of these last two points (1) that a legal estate actually vested in an assignee cannot be divested out of him by a subsequent election by the assignor to give up the interest so assigned, and (2) that for what the person electing is thus unable to give up he must make compensation to those who would have taken it if he could have given it up — the first is clearly in harmony with principle, and both are in accord with, at any rate one, precedent, an earlier case to the same effect being Rumhold v. Rumbold, 3 Ves. 65, the facts of which wiU be found stated at 176 Taking under the Document. p. 140; and where it was, in effect, lield that a mort- gagee's rights could not be affected by the mortgagor subsequently electing to give up the mortgaged pro- perty, but as the mortgage rendered it impossible for the mortgagor (if unable to pay off the mortgage) to give up the property as he was intended to do, he must, though taking under the will, make compensa- tion out of what he so took. The second point is also in a measure supported by Middleton v. Windross, 16 Eq. 212, where a testator directed his daughter, J., who took an equal share with his other children under his will, to convey an estate belonging to her alone, so that it should become the property of all the testator's children. Between the date of the will and that of the testator's death, the estate had been settled on trusts for J. and her husband and children, and subsequently it had been sold and the proceeds were held on the trusts of the settlement. Wickens, Y.-C, held that J. must never- theless bring the proceeds of sale of the estate into account. This case, however, it is conceived, could stand good without the assertion, as a general pria- ciple, of the second point above mentioned ; no doubt for the testator's purpose the estate settled on J.'s marriage was stOl to be reckoned as hers in computing how the testator's property should be divided among his children. The decision, however, in Lord Darlington v. Pul- teney (see 2 Yes. jun. p. 660), that a wife can elect to give up an estate tail, including any interest which her husband has derived from her in the property, is Taking under the Document. 177 of an adverse tendency to Griggs v. Gibson. The expressions in that case seem to go very far indeed : " A married woman," says Grey, L. 0. J., " may for- feit a conditional gift ; the estate is in her ; he " (i.e., the hushand) " takes in her right. If they disagree, it must be considered by the Court what is most for her interest ; if he is considered as having an estate, that must rise and fall with hers; it is the most favourable supposition for him, because otherwise he takes against the will " ; and Eyre, B., in the same ease, said that the husband's interest is only an emanation from the wife's estate. The fact, however, that the husband's interest comes to him through the wife does not prevent its being the case that he has a vested interest of which she has no legal and, unless election be an exception, no equitable power to take from him ; and these obser- vations in Lord Darlington v. PuUeney are expressly, and very naturally — and, it is submitted, very reason- ably — dissented from in Griggs v. Gibson. The opposite doctrine, that the husband cannot be deprived by his wife's election of any interest already vested in him in her right, was laid down — and indeed was admitted— in Brodie v. Barry, 2 V. & B. 127, p. 134. As regards equitable interests, it is not to be in- Equitable ferred from Griggs v. Gibson that an assignee of an equitable interest takes it subject to the chance of the assignor afterwards depriving him of it by elect- ing to take something else instead. A cursory perusal of Wood, V. C.'s judgment in the Law Eeports might suggest such an inference, but it is I 5 ■178 Taking under the Document. ■ clear, especially on reference to the other reports in .14 W. E. 513 and 35 L. J. Oh. 457, that the domi- nant feature ia the case was that the wife's equitahle [interest had never been reduced into possession, either hy the husband or by his assignee in' bankruptcy. '" Inasmuch as this personal estate had not been re- duced into possession by either of them, but still remained vested in the trustees of the settlement, the interest of the husband and his assignee therein, being merely equitable and depending on the will of the wife, must fail altogether if, by the doctrines of the Court of Equity, the wife's interests called on her to relinquish her right to the property." (14 W. E. p. 514.) The assignee's rights were, of course, no greater than the husband's, and the husband did not, even under the old law, become by mar- riage the assignee of personalty of the wife's not ia her possession, but only acquired it if he reduced it into possession. The same remark appears appli- cable to the earlier case of Mutter v. Maclean, 4 Yes. 531, where a wife was allowed to elect to give up an outstanding chose in action, notwithstanding the' opposition of her husband's assignee ia bankruptcy. In the case of an express assignment of an equitable interest, at least if for valuable consideration, it is presumed that the assignor would certainly not be allowed afterwards to deprive the assignee of it by electing to take for himself some more valuable pro- perty. This would be making the doctrine of election — which is a doctrine of equity — an instrument of iniquity, which the Court siirely would not suffer. Taking under the Document. 179 On the whole it is conceived (1) that it is clearly Suggested in harmony with sound principle to hold that no sions!^' person can hy election deprive another of an interest already vested in that other — that Griggs v. Gibson is so far preferable to Lord Darlington v. Pulteney. (2) That where the interest which a beneficiary is called on to alienate is an interest which he has no power to alienate, no necessity for compensation ought, generally speaking, to be considered as lying upon him, and that the doctrine of In re Lord CJies- 1mm, so far as conflicting with Griggs v. Gibson, should be preferred to it. It is submitted, indeed, that where a gift to A. is accompanied with a clause requiring A. to make over certain property to B., it ought to be held, if that property does not belong wholly to A., but in part or entirely to C, that so far as C.'s interest is concerned (although it may have been originally derived from A.), the fundamental fact necessary to a case of election is wanting, and that a testator or settlor cannot raise a case of election against A. by disposing of property which is not A.'s, but C.'s. Where, indeed, as in Rumbold v. Rmnbold, C.'s interest is only a mortgage interest, then, as this is no indefeasible interest vested in C, but one which A. might at any time take from him on paying him off, there is not the same objection to holding that it is still substantially A.'s property which is given from A., and that he must make good the gift, or make compensation to the intended donee. Where, as in Williams v. Mayne and In re Lord Chesham, the property out of which, if it were 180 Talcing under the Document, possible, compensation would have to be made, is the property of the person benefited, but subject to an inability on his part to alien it, it seems much the most satisfactory doctrine to hold, in accordance with In re Lord Chesham, and against Williams v. Mayne, that he is not to be prevented from accepting the new benefit conferred on him, and that, when he does so, " there is nothrag for him to give up, for there is nothing which he can give up." Where, indeed, as in Wall V. Wall, it is not the doctrine of equity, but the express direction of the testator, that makes the acceptance of one benefit involve the surrender of another, there may be more reason for holding that if the latter cannot be surrendered, the former cannot be accepted. As to It may be suggested that the decision in In re Lord ^a ogy o Qiiggfif^.fi^ £g jjq^ q-^j ^q more reasonable in itself, Tnists. * ^^^ is supported by its harmony with the decisions on election in the ease of married women restrained from anticipation. The case, however, has not arisen, as far as the author is aware, of a married woman holding an interest for her separate use which she is restrained from alienating, and of an instrument pur- porting to dispose of that interest, and at the same time giving her other benefits. The case which has repeatedly occurred is that in which a married woman has had an interest under an instrument and an interest against it, and the interest under the instrument is one which she is restrained from alienating. In this case it is now well settled that she is not put to election, but can take both the interests. But the reason on which Talcing under the Document. 181 the conclusion rests is, that as the instrument which (if it were possihle) would put her to election is the same instrument which declares that the interest conferred hy it is to he inalienable, the author of the instrument has plainly shown that he does not intend the doctrine of election to apply. In re Wheatley, 27 Ch. D. 606 ; In re Vardon's Trusts, 31 Ch. D. 275. This reason, of course, would not apply if the inalienable interest were one that belonged to her independently of the instrument, and the doctrine of Iji re Lord Chesham must stand independent of the analogy of In re Vardon's Trusts. In Laurie v. Chitton, 15 Beav. 131, it was decided Legacy . duty. that, under 36 Geo. 3, c. 52, s. 7, no legacy duty is payable on a sum bequeathed to B., where such sum is not the property of the testator, but of A., and is given up by A. to B. under the doctrine of election, in consequence of a gift to A. in the same will. For such property of A. is not personal estate of the testator, or personal estate which he has power to dispose of. But it was also held that, under 45 Geo. 3, c. 28, which imposes legacy duty on a legacy charged on land, legacy duty attaches wherever a testator gives real estate to A., and gives money of A.'s to B. ; for such gift to B. is thereby charged on the real estate. " Now, if a testator should devise his real estate to A., and by the same will dispose of 1,000/. belonging to A. in favour of B., what- ever may be the course of conduct pursued by A., B. would, in any event, take an interest in the real estate of the testator to the extent of 1,000/. If 182 'faking under the Document. A. elected to take under the will, he -would take the estate charged with the 1,000/. in favour of B.; and if A. elected to reject the will, the heir-at-law of the testator would, in like manner, take the estate, but would do so burthened with the payment of 1,000/. in favour of B. ; and if both A. and the heir-at-law repudiated the real estate of the testator, B. would himself take it as if he had been the original devisee thereof" (p. 141). The M. E. appeared to think it doubtful whether the same principle would apply in the case of a devise of land to A., and a bequest to B. of a valuable picture belonging to A. — whether, if A. repudiated the devise and elected to retain his own property, the value of the picture would be charged on the land. " I have not," said the M. E,., "been referred to, nor do I know of, any case that decides that, in such a case as I have supposed, the estate would descend to the heir-at-law, charged with a pecuniary bequest in favour of a specific legatee to the extent of the supposed value of the specific legacy" (p. 143). It is conceived, however, that it would do so : and on the point that such a bequest would give to B., even if A. accepted the devise to him, no cei-tain right to the picture belonging to A., but only to its value — that A. could both take the devised land and retain the pictxire, provided he gave B. the value of the picture— there is now an express decision in Pickersgill v. Rodger, 5 Ch. D. 163 {ante, p. 153). Succession Hanson (on the Probate, Legacy, and Succession Duties, 3rd edition, p. 68) suggests that where Taking under the Document. 183 property is given up by a legatee to another person under an election by the legatee to take under the ■will, " succession duty would apparently be payable under such circumstances by the person to whom the property is given up, as upon a succession derived by biTTi from the testator within the terms of sect. 2 of the 16 & 17 Yict. c. 51." ( 184 ) CHAPTEE XIII. OF ELECTION BY INFANTS OR BY PERSONS OF UNSOUND MIND. Election Where the person who had to elect was an infant, in case of . infant, the election, as appears by some old eases, was postponed, formerly postponed till he came of age. Sancock v. Hancock, cited in Grilh. p. 95. And sometimes the election was directed to he made within six months after his coming of age. Streatfield y. StreatfieM, Oas. t. Talb. 176, p. 183. If the infant was a girl, and she married while stOl tinder age, it was held, in Harvey y. Ashley, 3 Atk. 607, p. 617, that she woiild he bound by an election made by her husband ; and it was perhaps on this principle — that the husband of a female infant could elect for her — that in Her- vey Y. Beshouverie, Cas. t. Talb. 130, p. 137, election was postponed, in the case of a female infant, till she came of age or married; the meaning probably being, not that the disability of infancy would be remoYed by superadding to it the disability of coverture, but that, in the event of her marriage, there would be someone to elect who would be free from disability. After- In later times the practice was to refer it to a wards, re- ference to Master m Chancery to mqmre and certify how it Infants, Lunatics, Sfc. 185 would be for tlie infant's benefit to elect ( Watson v. ascertain Lincoln, Amb. 328, n. ; Mglandy. Huddkston, 3 Bro. forinflnt's Ch. 286, n. ; Gretton v. Howard, 1 Sw. 409, p. 413 ; ^™''^*' Ebrington t. Ebrington, 5 Mad. 117 ; and Ashburnham T. Ashburnham, 13 Jur. 1111), a practice in barmony with the decision of the House of Lords in Chetu-ynd V. Fleetwood, 1 Br. P. C. 300, wbich was not a case of ordinary election. In one case, which, however, appears to be quite irregular in this respect, it was referred to the Master to make the inquiry on behalf not only of the infant but of a person sui juris. Nicholson t. Nicholson, Taml. 31 9. On the Master's report being made, counsel for the infant elected in accordance with bis recommendation. S. C. The inquiry is now made by the Chief Clerk. For form of declaration and reference as to election by infants, see 2 Seton, 4th ed., p. 933, form 2. If the gift was subject to such contiagencies that it would be impossible for the Master to judge for the infant, the election was postponed till the infant should come of age. Boughton v. Boughton, 2 Yes. 12. In the interval until the election was made, it How rents and profits would seem natural that the possession of the pro- to go till ■ !■ 1 1 o p -J election. perty, or the receipt of the rents and profits of it, should be left with the person who was legally entitled to them, and would continue to be so unless and until he elected to give them up. The Court, however, in the last case held otherwise, and directed the interim possession to go according to the will which raised the case of election. That will gave real estate to S., but it being invalid for that purpose, 186 Infants, Lunatics, Sfc. the realty descended to Gr. as heir-at-law, and the will bequeathed 1,200^. to Gr. on certain contin- gencies. The election being postponed till Gr. came of age, it was directed that S., the devisee of the real estate, should be allowed to receive the rents and profits, not committing waste, and if, finally, Gr. elected to take the land, and S. had to give it up, he should make compensation for the rents and profits out of the share which he took, under the custom of London, in the testator's personalty. As it was purely accidental that S. had an interest outside the will, it is clear that the course here adopted could not, in its totality, be universally applied ; ordinarily, the only thing which could be laid hold of to compel S. to account for the rents and profits would be the compensation coming to him from Gr. out of the legacy. But whether or not there was a possibility of securing that S. should account for the rents and profits, if necessary, it is difficult, as Mr. Belt has pointed out in his note (Supplt. 249), to see by what right the Court took the possession from the legal owner, or the rents and profits from his guardian, unless upon evidence, which does not appear in the report, of this course being for the infant's benefit. Mr. Swanston suggests (1 Sw. p. 414, note (a)) that possibly Lord Hardwicke's order "proceeded on the notion that the disposition of the will should not be disturbed except by actual election to take against it, and that any inconvenience consequent on the sus- pense of election ought to affect the individual by whose disability it was occasioned." But this, Infants, Lunatics, Sfc. 187 though an explajaation, does not seem to amount to a justification of the decision. In connection with this case, reference may he made to Thomas v. Gyles, 2 Vem. 232, which, however, was not a case of election. There, there had heen a devise of lands to a son in lieu of entailed lands, and a devise of the entailed lands to a daughter, and the son had given his bond to allow the entailed lands to go to the daughter. The son died, and left an infant child, who, while in possession of the devised lands, brought ejectment for the entailed lands. As he was an infant, the daughter could not sue him on his father's bond, and the Court of Chancery decreed that the daughter should be quieted in possession of the entailed lands tOl six months after the infant had come of age, when he might show cause against the decree. In Blunt V. LacJc, 26 L. J. (N. S.) Ch. 148, the Reference Court, with the consent of the infant's counsel, dispensed elected for him without any reference to a Master. The declaration made by the Court ran — " It appear- ing to be for the benefit of the said infant, B. C. T. B., to retain the advancement and provision made for him by the settlement dated, &c., and he, by his counsel at the bar, electing to retain the same accord- ingly, declare, &c." See also Lamb v. Lamb, 5 W. R. 772, and the declaration in that case, 2 Seton (4th ed.) 933, form. 3. These cases are analogous to Wilson v. Townshend, 2 Ves. jun. 693, a case relating to election ,by a married woman, where reference to the Master 188 Infants^ Lunatics^ Sfc. was dispensed with, because it was manifest wHcli of the two interests was the more adTantageous. In Cooke T. Briscoe, 1 Dr. & Wal. 596, however, Plunket, L. 0. of Ireland, considered that he had no power, even at the request of the infant's counsel, to elect for him — on the ground of the one interest being manifestly the more eligible — ^without a reference to the Master. Inasmuch as the Court can and will elect for an infant, the infancy is no obstacle to any person, who has a right to put the infant to election, taking proceedings at once for that purpose without waiting for the infant to attain his majority. Morrison v. Bell, 5 Ir. Eq. E. 354. Persons The same practice as on election in the case of infants is pursued where the persons to elect are persons unborn ; the Court elects for them after an inquiry, if necessary, whether it is most for their benefit to take the one or the other right. Such was the course taken in Lad^ E. Thynne v. Earl of Glengall, 2 H. L. 0. 131, p. 142, and mentioned as the correct course on the examination of that case in Lord Chichester v. Coventry, 2 L. E., H. L. 71, p. 93. In case of Where the person to elect is a person of unsound committee mind, his Committee, if he has one, elects in his ^' stead. In re Sewson, B'Almaine v. Moseley, 23 L. J. or Court. Ch. 256. In the case of a person of unsound mind, not so found by inquisition, the Court, according to the judgment of Kay, J., in Wilder v. Pigott, 22 Ch. D. 263, (which can scarcely be called a decision, Infants, Lunatics, Sfc. 189 as it was there held that the person had elected while still of sound mind,) has the power of making an election which will bind the equitable interest of that person, and will make such election according to the view which the judge takes of what will be for that person's benefit. ( 190 ) CHAPTER XIV. OF ELECTION BY MAEBIED WOMEN. Married Ijj the case of a ■woman married since 1882, and, women under new therefore, since the commencement of the Married Women's Property Act (45 & 46 Yict. c. 75), there is no special law as to election (she heing, in respect to property, in the position of &feme sole), except as regards property given to her for her separate use without power of anticipation, and except as to the douht whether she can, at a time when she has no separate property, elect so as to bind what she may afterwaxds acquire (see p. 207). In the case of a woman married in or before 1882, there is also no special law as to election, with the exceptions just mentioned ; proAdded that both the interests between which she has to elect have accrued entirely since 1882. In saying " entirely" it is intended to exclude the case of property in which she had a reversionary interest before the 1st January, 1883, which has become an interest in possession since {Reid v. Reicl, 31 Ch. D. 402), or a contingent interest before that date which has become a vested interest since. Old law— In all other cases of election by married women, it married . -n i • woman IS ueccssary stiU to be acquainted with the old law. could elect. Married Women. 191 Under this, notwithstanding the general disahility of a married woman, she could elect. The opposite may appear to be implied by the early case of Glover V. Bates, 1 Atk. 439, which laid down that if a woman married while an infant she could elect on becoming discovert — suggesting that as long as she was Tinder coverture, although she might have at- tained full age, she could not elect. But Lord Dar- lington v. Fultmiey (cited 2 Ves. jun. 560) is a clear authority that a married woman could elect; " her dis- ability," it was said, " is not like that of an infant ;" so Rutter v. Maclean, 4 Ves. 531 ; see also Nicholl- V. Jones, 3 Eq. 696, p. 709, and the observations of Lord Selbome, L. C, on the right of a married woman to elect, in his review of her legal position . generally, in Cahill v. Cahill, 8 Ap. Ca. 420, p. 426. ; " If property were given to her on an express ori implied condition, she might accept and sue for it;; but she could not, any more than a person under no disability, at once accept the gift and reject the condition. Unless she had been held, under such, circumstances, to be capable of election, the gift: must necessarily have failed; which Courts of Equity thought neither necessary nor reasonable. It was, therefore, a just corollary, from her right to sue and • her liability to be sued in such a case, that she might) elect and be bound by her election, unless the nature of her interest in any property to be relinquished created some obstacle." At one time, the regular Separate . 1.1 • 1 ) 1 i- examiua- course by which a married woman s election was tion, - • X- _i J! 1 1 whether made was on an examination apart trom her iius- required. 192 Married Women. band (fl), to ascertain whether the choice she proposed to make was a free one. If she and her hushand were abroad, it was not sufficient that they gave a power of attorney to a person here to elect, as this would ,afford no opportunity for such examination. Parsons v. Dunne, 2 Ves. 60. Not now. In Ardesoife v. Bennet, 2 Dick. 463, a married woman was held to have made election by her acts, being liable to elect between her rights as heiress to copyholds, and the interest of a sum of money ; she had received the interest for five years, and this amounted to an election. This case was cited, in Barrow v. Barrow, 4 K. & J. 409, in support of the general principle which "Wood, Y.-C, there laid down, that a married woman could elect, so as to affect even her interest in real property, without a deed acknowledged, " and that where she had once so elected, though without deed acknowledged, the Court can order a conveyance accordingly — the ground of such order beiug that no married woman should avail herself of fraud." The general doc- trine that a married woman can elect is confirmed also in Willoughhy v. Middleton, 2 J. & H. 344; Smith V. Lucas, 18 Ch. D. 531, p. 544, where Jessel, M. E., observes, " Can the wife during coverture elect? I think she can. I think that point is settled by Barrow v. Barrow, and one or two (a) Compare the course as to a maoried woman electing to take property as realty or personalty: Slandering v. Ball, 11 Ch. D. 652 ; Wallace v. Greenwood, 16 Ch. D. 362. Married Women. 1^3 other cases," and WiMev v. PigoH, 22 Ch. D. 263. The decision ia Frank v. Frank, 3 My. & Cr. 171, that a woman oould not, during marriage, elect between a Joiature made after marriage and her dower, is based expressly on the stat. 27 Hen. 8, c. 10, s. 9 (which" fixes election in that case to the time after the husband's death, and to the event of the wife surviving him), and throws no doubt on the general principle. In Bruitt V. Willens, 23 L. R. I. 456, the M. E. of Ireland seemed disposed to doubt the doctriae gene- rally held to have been decided "hj Barrow Y.Barrow; he observed of the married woman that, in that case, "being in litigation with her husband, and at arm's length, she was free to assert her independent right as if she was a feme f^ole against him, and did so against him to the extent of obtaining a decree of the Court, which she afterwards ineffectually sought to get rid of ; " and he considered the case to be " no authority for the proposition that in a case not against the husband, not in respect of real estate, and where there has been no decree, a wife can by election deprive herself of her equity to a settlement." As to the point, however, that Barroio v. Barrow related to real estate, the judge, in holding that the wife had power by acts, and without a deed acknowledged, to elect so as to bind her real estate, seems obviously to have meant that she had such power even in the case of real estate, as to which the law had imposed special formalities for her protec- tion, whence it would appear that, a fortiori, she would E. K 194 Married Wo7nen. have such power in a case of personal estate (exclud- ing, of course, the case of reversionary personalty). And as to the other elements which are referred to as present in Barrow v. Barroir, and as possihle bases for recognizing the wife in that case as enabled to elect, subsequent cases show that the wife's com- petency to elect is not dependent on these : e.g'., in Wilder v. Pigott the act relied on as a ratification by the 'wife of a covenant which she might have elected to avoid was an act done by her and the husband together, and without any decree of a Court. Eefereiice As a preliminary to the married woman making iisual to , , , , , _ ascei-tain her election, it was ordinarily referred to the Master ier ■benefit. -(iort? Darlington v. Pulteney, 2 Yes. jun. p. 552; Davis V. Page, 9 Yes. 350), and is now referred to the Chief Clerk {Prole v. Soadi/, 29 L. J. Oh. 721, p. 729), to ascertain what election would be most for her be- But semiiie, nefit ; but where this would be manifest without any this is not ■ t • • ^ n -tit i-i essential, special inquiry, the reference might be dispensed with, as in Wilson v. Townshend, 2 Yes. jun. 693. In Cooper V. Cooper, 7 L. E., H. L. 53, p. &7, Cairns, L. C, moving the judgment of the House of Lords, says : " My lords, I do not find in the decree any direction with regard to one of the appellants, who is a married woman, and who cannot make an election for herself. As to that, I think your lordships will be of opiuion that, following the ordinary course, there should be an inquiry made whether it would be for the benefit of Edith Theresa Dashwood and her children to take imder the provisions of the will and codicil, or Married Women. 195 against the same." The statement that the married woman cannot make an election for herself appears a somewhat unguarded one : the election, it is con- ceived, is her election, however much care the Court may take that, before making it, she has full informa- tion and advice as to her interests. " The party to whom the election is put has a full right to choose the worst." Rutter v. Maclean, 4 Yes. 531, p. 537, where a wife was held free to choose the smaller of two interests, which, as it was given her for her separate use, she preferred to a larger interest which her husband's assignees in bankruptcy desired she should elect. In Queade's Trusts, 54 L. J. Ch. 786, the question was raised, on the strength of Cooper V. Cooper, whether the wife could elect for herself and without submitting to the discretion of the Court ; but as the property respecting which the choice was to be made was property belonging to her as her separate property under the Act of 1882, it was naturally held that she could so elect, and the question of the correctness of Lord Cairns' statement in Cooper v. Cooper was not considered. It is one thing to say that a wife can elect irrespee- Whether a 1 n 1 T J.- maiTied tively of her husband's wishes, so far as her election woman's .,j ,j election would not deprive him of any interest already vested, can preju- in him, and a very different thing to say that she husband. can, by her election, deprive him of such an interest. It was held, indeed, in Lord Darlington v. Pulteney (see 2 Ves. jun. p. 560), that a wife could elect to renounce an interest {e.g.,a.-n. estate tail) in property, notwithstanding that her husband had a legal interest k2 19<> Married Women. in the property in her right, and her remmciation, it was said, would be efEectual to deprive him of that interest and, after her death, of the estate he would have had by the curtesy : " for his estate," says De Grey, L. C. J., "must rise or fall with her." In Griggs v. Gibson, 1 Eq. 685, p. 691, Wood, V.-O., quoting this remark, added, " But as to real estate, I confess I do not see how such a doctrine can apply." The distinction, perhaps, is in reason not exactly between real estate and personal, but between pro- perty in which the husband has acquired a vested interest before the wife elects to abandon the property, and property in which, whether because it is person- alty, and he has not at that date reduced it into possession, or from any other reason, he has not acquired any such indefeasible interest. See the observations on this case generally, ante, p. 174. In Brodie v. Barry, 2 V. & B. 127, p. 134, it was held, and indeed it was admitted, that the husband of a married woman who had to elect between her rights as heiress, and her rights under a will, could not be deprived by such election of Ms interest in the pro- perty which had descended to her. Where a woman, having a certain interest under a settlement, married, and property was afterwards left her by will in satisfaction of her rights xmder the settlement, it was considered highly doubtful (but it became needless to decide) whether she could elect (or the Court could elect for her) to give up the interest under the settle- ment in the face of the dissent of her husband. Wall V. Wall, 15 Sim. 513. Married Women. 197 A married woinan taking under a settlement, or Married woman agreement lor a settlement, a benefit •whicn is given taking a her in consideration of a settlement either (1) in- considera- effeetuaUy made hy her, or (2) agreed by her to be settlement made, but by an agreement which is not binding on ^ her, or (3) even merely contemplated by the person conferring the benefit as one to be thereafter made by her, must, when able to do so, make the settlement so expressed, agreed, or contemplated to be made by her, or else must renounce -the benefit for which she thus declines to pay the consideration. This is the case referred to above (p. 2), where the doctrine of election is extended to circumstances which do not, strictly speaking, involve a disposition by one person of the property of another. The governing principle here is sometimes expressed in the words of Lord Eedesdale in Birmingham v. Kirwan, 2 Sch. & Lef. 444, p. 449. " The general rule is, that a person cannot accept and reject the same instrument; and this is the foun- dation of the law of election, on which Courts of equity particularly have grounded a variety of deci- sions in cases both of deeds and of wills, though principally in cases of wills, because deeds being generally matter of contract, the contract is not to be interpreted otherwise than as the consideration that is expressed requires." These words are quoted with approval by Lord Selbome, m 8 Ch. 687, as expressing the general principle of the law on this subject, and they do, no doubt, suffice to cover this case, but they have the 198 Married Women. general defect of very sweeping propositions, that they cover a great deal too much: it is far from heing a universal truth that a person cannot accept and reject the same instrument. (See, e. g., the dis- cussion on the question hetween compensation and forfeiture ; also the concluding chapter of this hook.) Campbell fhe law is now clearly settled as ahove stated, but V. Inguliy. •' some difficulty had been created on the subject by the case of Campbell y. Ingilby, 21 Beav. 567. There a settlement of a woman's real and personal estate on her marriage was void against her on account of her infancy. The settlement gave her husband an inte- rest: in her real estate, but it also secured her an interest in her personal estate, whereas, but for the settlement, this would have vested wholly in her husband. Eomilly, M. E.., held that she and her heirs could retain her real estate as against the husband, and still could claim the benefits secured her. by the settlement in her personal estate, the settlement being stUl good in her favour, as the chief consideration for it was the marriage itself. The case was affirmed (1 De Gr. & J. 393), but the deci- sion of the Lords Justices turned on another point. Lord Eomilly himself, however, partly retracted the decision by his statement in Brown v. Broicn, 2 Eq, 481, p. 485, that some of his observations in the judgment seemed to carry it further than he was disposed to think, on reflection, was desirable ; and he there put the judgment on the principle that the plaintiff, who claimed the real property as heir of the wife, took nothing directly under the void settle- Married Women. 199 ment. So interpreted (or rather, so limited, for his original judgment treated the wife, equally with the heir, as free from the necessity of electing), the case may stand together with his later decision in Anderson V. Abhott, 23 Beav. 457, where a wife, after her hushand's death, claimed that an agreement for settlement made during her marriage was not bind- ing on her, and that she was entitled to payment to herself of a sum which she had thereby agreed should be settled on her and the children ; it was held that she was so entitled, but only on the terms of giving up the income of property already settled in pursu- ance of the agreement, which must go to recoup to the children the capital of the property she claimed to withhold from the settlement. Savill V. Savill, 2 Coll. 721, an earlier case than the above, holds the doctrine of election applicable not merely where an infant, as in Campbell v. Ingilby, or a person under coverture, as in Anderson v. Abbott, has executed a settlement or agreement which, on account of such disability, is void agaiust her, but even where the person thus incapable of validly acting has not gone through the form of acting at all. In Savill v. Savill, on the marriage of an infant ward of Court, a settlement was proposed of her real and personal estate on her and her husband for their lives, with remainder to their issue, and in default of issue, as to the personalty, for her next of kin. The proposals were approved by the Master, and the hus- band executed articles covenanting to get her to execute a settlement according to the proposals on 200 Married Women. her coming of age, and covenanting also that in the meantime all the interest he should take in his marital right should be held on the same trusts as if the settlement were execij.ted. The wife died soon after coming of age, without issue, and without having executed such settlement. In the absence of any settlement, or articles for settlement, the personal estate would have gone to the husband, and the real estate to her sister, who insisted on her right to it : it was held that she could take it, but that the hus- band was entitled to be compensated out of the personal estate for the real estate thus withheld from settlement. The doctrine of election was thus treated as no less applicable than if there had been a positive conveyance of the infant's interest to the trusts of the settlement. To a like effect with Anderson v. Abbott are Ash- burnham v. Ashbiirnham, 13 Jur. 1111 ; Willoughby V. Middleton, 2 J. & H. 344, where a wife, claimiag to withhold property from a settlement on the ground of her minority at the time of her executing the settlement, had to make compensation out of her interest under it ; and Brown v. Brown, 2 Eq. 481, where, as in Campbell v. Ingilby, the claim was by the wife's heir after her death, but Eomilly, M. E., distinguished it from his decision in that case, on the ground that here the heir did advance a claim — a claim to personal estate — which was directly under the settlement. Coi/riiiffton The great case in which the point was fully dis- affimed aa cussed was Codrington v. Lindsay, 8 Ch. 578. There Married Women. 201 a woman married while under age. After oomin? of GodHngton age, and durmg the coverture, she was party with ton. her father and her husband to a deed which recited that she was entitled in reversion to a certain sum of rupees, and that, on the treaty for the marriage, it had been agreed that property of the husband and the father should be settled as was therein done (giving her certain life interests), and that the inte- rest of her, or her husband in her right, in this sum should be settled. The marriage was dissolved by divorce, and afterwards the wife's reversionary inte- rest fell into possession, whereupon she claimed to retain it unaffected by the settlement, and also to take the benefits given her by the settlement in the property of her husband and her father. Romilly, M. R., held that she was not bound to elect between these interests, and that, her assignment being void, she could take under the settlement without affecting her interest in the rupees, as they " formed no part of the settlement." On appeal, however, it was held that she was bound to elect ; that the settlement of her interest in the rupees was part of the considera- tion for which her husband and her father conveyed property of their own, and that she could not take the benefit of that conveyance while refusing to give effect to that which was the consideration for it; and this decision was unanimously affirmed by the House of Lords (7 L. R. H. L. 854). Of Campbell V. Ingilby, James, L. J., said that he more than doubted the propriety; and it is apprehended that k5 202 Married Women. the decision may be regarded as practically over- ruled. On the same L. J.'s view, that in marriage contracts and marriage settlements every benefit given to any person shotdd be considered as part of the considera- tion for the settlement to be made by that person, see ante, p. 76. The doctrine that a married woman is competent to elect does not imply a capacity in her by election to dispose of property which she is otherwise pre- vented from alienating — as, e.g., in cases where neither Malins's Act, nor the M. W. P. A. applies, a reversionary interest in personalty. In Wall v. Wall, 15 Sim. 513, she was indeed treated by the decree as competent, though the V.-C. had before recognized that she was not, to elect to renounce such an inte- rest while still reversionary ; but in Williams v. Mayne, Ir. E. 1 Eq. 589, this was condemned, and, as it would seem, very rightly. If the reversionary inte- rest falls into possession during the marriage, the wife can then dispose of it, and so if, while it was reversionary, she has covenanted to settle it, she can, on its ceasing to be reversionary, elect to ratify this voidable covenant, and if she does so elect, and, e. g., has it invested in the names of the settlement trus- tees, this act of hers will be binding. In Bruitt v. Willens, 23 L. E. I. 436, acts done by a married woman after an interest of hers had ceased to be reversionary, in ratification of an assignment of it, made when reversionary, were treated as not binding on her ; but in that case the acts were done with no Married Women. 203 knowledge of tlie invalidity of the assignment, and so could not constitute a valid election. Where the interest out of which a married woman Separate would he liable to make compensation, if she elected without not to abide by the settlement, is an interest limited E^tidpa- to her for her separate use without power of antici- pation, by that same settlement, she is not required to make the compensation, and can insist on her rights independently of the settlement while taking the interest, without power of anticipation, under it. The decision to the contrary in Willonghhy v. Middle- ton, 2 J. & H. 344, was doubted in Smith v. Lucas, 18 Ch. D. 531; In re Wheatleij, 27 Ch. D. 606, and other cases ; and on Kay, J., following it in In re Vardon's Trusts, 28 Ch. D. 124, his decision was reversed, and Willoughhy v. Middleton was on this poiut overruled by the Court of Appeal {In re Far- In re don's Trusts, 31 Ch. D. 275). The judgment of Trusts. Kay, J. — that notwithstanding the married woman's inability to alien her separate estate, the Court would take it to compensate the disappointed legatee — was based upon the principle that the rule of equity was, not that the person who took against the settlement must convey what she took under it, so as to make compensation, but that the person who took against the settlement was subject to a disability to take anything under it imtil full compensation had been made — and, therefore, as it was not a question of her conveying her interest, but of its being laid hold by the Court and sequestered, the fact of her being restrained from alienating it did not affect the 204 Married Women. questloii. This view was based on an examination of numerous passages in whicli the doctrine had been expressed, and which presented such phrases as "he must make himself competent to take the legacy by giving up that specific thing" ( Wilson v. Towmhend, 2 Ves. jun. 693, p. 697) ; " he shall take no benefit from that will, unless," &e. {Rancliffe v. Parkyns, 6 Dow, 149, p. 179) ; " cannot accept a benefit under the instrument without, &c." (Codrington v. Codring- ton, 7 L. E. H. L. 854, p. 861). The authors of these phrases, however, do not appear to have had any such distinction present to their minds as Kay, J., was drawing; and to insist on this minute verbal criticism to the extent of inferring from it that a married woman could cause herself to be deprived of property which she was restrained from alienating was a rather strong proceeding. The Court of Ap- peal, however, held that the doctrine of election rested on a presumed intention of the author of the instru- ment that all its provisions should "take effect, and that such presimiption might be repelled by the de- claration of a particular intention opposed to that general intention ; " for example, if the settlement in question had contained an express declaration that in no case should the doctrine of election be applied to its provisions, there seems to be no reason why such a declaration should not have full effect given to it " (p. 279) ; and the Court held that the proviso against anticipation was the declaration of such a particular intention exclusive of the general in- tention. They also commented on the obvious Married Women. 205 tendency wMch the doctrine of election would have, if held applicable to such a case, to remove altogether the protection intended to be conferred by the restraint on anticipation. In this case [In re Vardon's Trusts), in a marriage settlement executed while the wife was an infant, she covenanted to settle after-acquired property on certain trusts, and under the same settlement she took, in part of the property settled, a life interest for her separate use without power of anticipation. Subsequently acquiring certain pro- perty for her separate use, she declined to settle it in conformity with her covenant. The Court of Appeal held that her life interest in the settled property could not be applied to compensate the persons damnified by her refusal to settle the after-acquired property. This decision is in harmony with the earlier decision in RoUnson v. Wheelwright, 6 De G. M. & Q-. 535, affirming 21 Beav. 214, that the Court had no power to enable a married woman to comply with an express condition requiring her to alienate an estate given to her without power of anticipation, even though it might appear to be for her interest to do so. Under the Conveyancing Act, 1881, s. 39, the Court now has power to do so "where it appears to the Court to be for her benefit," but this does not affect the principle applicable to these questions of election : indeed, it could not be for her benefit to remove the restraint on anticipation when, by reason of such restraint, she is saved from the necessity of giving up one property when she takes the other. 206 Married Women. Where the document which contains the restraint on anticipation contains also a direction that any beneficiary disputing any clause in the will shall forfeit all benefit under it, the latter proviso annuls the effect of the former as excluding the doctrine of election, and the beneficiary who refuses to allow her own property to go as disposed of by the document, miist renounce the gift made for her separate use, though without power of anticipation. In re Whit- well, Senior v. Wilson, "W. N. 1890, p. 171. Election to Formerly, a married woman could only elect to after-ac- give up property settled for her separate use if such property, property already belonged to her at the tinae of election. Thus if, being an infant, she covenanted in her marriage settlement to settle after-acquired property, then, on any property becoming hers for her separate use after she had come of age, she could either consent or refuse to allow that particular pro- perty to pass under the covenant, but she could not coiifirm the settlement once for all and deprive her- self of the power of retaining against thS settlement any property which she might afterwards acquire. Smith V. Lucas, 18 Ch. D. 531. This, however, was an inference from the doctrine of Pike v. Fitzgihbon, 17 Ch. D. 454, that the contract of a married woman, made with a view to bind her separate estate, only bound such separate estate as was hers at the time of the contract ; and this doctrine being abolished by the Married "Women's Property Act, 1882 (45 & 46 Vict. c. 76), s. 1, sub-s. 4, this limit on her power to elect is presumably removed also. Married Women. 207 It has, however, been held on this snh-section, that a Smhu, she • J » ■ -n 1 -I • must still married woman s contract is still unable to bind her own some after-acquired separate property unless she has some property, separate property at the time of the contract {In re Shakespear, Beakin v. Laldn, 30 Ch. D. 169 ; Palliser V. Ghwney, 19 Q. B. D. 519), and such separate pro- perty that she may reasonably be deemed to have contracted in respect to it [Leak v. Driffield, 24 Q. B. D. 98) ; and on the same priaciple it would not improbably be held that a married woman cannot elect so as to bind her after-acquired separate pro- perty until she has some separate property that will be immediately affected by the election. ( 208 ) CHAPTER XY. ELECTION AS AFFECTED BY FOUEIGN LAW. Prmoipies jj, jjjg^y. happen, in questions of election, that the applied rights of the person to whom some property is given where one ° '^ _ r r j o right falls while property of his is given to another, may be foreign rights whioh do not hoth fall under the direct dominion of English law, but one of which is subject to a foreign law, and that foreign law may or may not recognize the principle of election. How are the rights to be then determined ? Let us look at the question first as one of principle, and consider the case where the foreign law does not include any such doctrine as that of election. The general principles of private international law, as recognized in English Courts, are — ^that rights as to immoveable property are determined by the lex situs ; rights as to moveable property by the law of the owner's domicile, or, in the case of succession by will or on iatestacy, by the law of the domicile of the deceased; and rights under contracts relating to moveable property, by the law of the place where such contracts are made. Now the interest which is given to a person by a will or deed may fall under one of these laws, and the interest which he has, independently of the will or deed, may fall under Foreign Law. 209 another. If the former law recognizes the principle of election, then, as he has no right to the interest, except under that law, it would be reasonable to hold that he must take it with the necessity for election attached, and therefore must elect, whether the law imder which he holds his prior right requires him to do so or not. But if the law governing the acquired interest does not impose the need of electing, but the law governing his original interest does impose it, it does not necessarily follow that he would need to elect. For he has not, in this case, to ask anything from the latter law in consequence of the gift ; all that he needs from that law is to be protected in holding, or assisted ia obtaining, what he held, or was entitled to, entirely apart from the fact of the new gift. That, he claims xmder a law which, we are supposing, attaches no duty of election to the receipt of it. It might well be, therefore, that, in such a case as the latter, he would not have to elect. But it may be, that if he has occasion to appeal to the law for the purpose of obtaining possession of the property to which he is entitled apart from the new gift, that law may take cognizance of the new gift and the circumstances attending it, and may refuse to assist him to obtain his own except on the basis of his doing with it what (in view of that law) he ought to do, in compliance with the wishes of the donor of the other gift. Thus, suppose, for the sake of illustration, that the Scotch law had no equivalent to the doctrine of election, and that a devise or bequest which the 210 Foreign Law. testator had no power to make was in that law merely void. If in that case a testator, domiciled in England, should purport to devise Scotch land away from his heir (which devise would be inoperative hy Scotch law), and should give to that heir a sum in consols, it would be reasonable that the English law should refuse to assist that heir to recover the consols unless he gave effect to the wish of the testator by disposing of the Scotch land. But if a testator, domiciled in Scotland, shoiild devise English lands (of which he was only tenant for Kfe, with remainder to A.) to B., and should bequeath to A. sums of money, A. could sue in the Scotch Courts for his legacy without being called on to elect, and might simply ignore the will as inoperative in regard to his English lands. If, however, for any reason it became necessary for him to seek the aid of the English Courts for enforcing his rights as to the land, in any proceeding which brought the Scotch will under their notice, it would be possible that the Courts, acting on the principles of equity recognized by them, might hold him bound to elect, and liable, if he insisted on the legacy, to give effect to the devise of his land to B. As a matter of fact, however, the Scotch law recognizes the principle of election — ^^or, as it is called in Scotland, of approbate and reprobate — no less than English law. And therefore — as in most of the cases on election wherein any foreign law was con- cerned it was Scotch law — ^the question has been between two systems of law, each holding the same Foreign Law. 211 view of equity, and there lias consequently teen a general readiness to enforce the doctrine of election wherever the words have been sufficiently clear and precise. Thus — to take first some decisions of the Scotch Scotch Courts — where a person taking land situated out of Scotland, against a Scotch document, has claimed from the Scotch Courts to take other property under that document, he has heen held liable to elect. Thus, in Bennet v. JBennefs Trustees (cited in Robert- son on the Law of Personal Succession, p. 227), a Scotchman having, by a Scotch deed of settlement, conveyed to trustees all the property belonging, or which should belong, to him at the time of his death, afterwards bought land in the Isle of Man, which, by Manx law, did not pass by the deed, but went half to his widow and half to his children. The widow claimed to take her half of the Manx land, and also to take the interest given her under the deed of settlement. But the Court of Session con- sidered that it was " impossible to say that the deed did not intend to convey property which he might subsequently acquire in the Isle of Man," and there- fore the widow must elect. The same was held by the Scotch Courts and the House of Lords on appeal from them, where a Scotch trust deed, purporting to deal with English land, was void by English law for want of due execution under the Statute of Frauds ; the English heir claiming benefits under the Scotch deed was required to elect. Bundas v. Bundas, 2 Dow & CI. 349. The Scotch Courts in this case did 212 Foreign Law. not take up the position taken by the English Courts in Sheddon v. Goodrich, 8 Ves. 481, that a disposition of English land, void for want of compliance with the Statute of Frauds, could not he looked at, hut must be taken pro non scripto. In these two cases the Scotch Courts imposed the need to elect as the condition of a person's acquiring additional property under the Scotch law. In the old case, however, of Cunningham v. Gainer (men- tioned 1 Bligh, pp. 39, 40), they went even further, and imposed the necessity of electing on a person whose rights, so far as they depended on Scotch law, were rights irrespective of the will, and who, so far as he claimed under the will, claimed by a foreign law. There a testator, having land in Scotland and land in the Island of St. Christopher, devised to his son the lands in St. Christopher, and to Mary Gainer his lands in Scotland. On Mary Gainer suing the son in the Scotch Courts, and claiming the land devised to her, the son pleaded that the devise to her was void by Scotch law. It was held, however, that the son, having taken the lands in St. Christopher under the will, which to that extent had been found vahd by English law, could not be heard to dispute its validity as regards the Scotch land, and must elect. English The English cases, as far as the present writer is decisiouB. aware, do not appear to present anything analogous to this last case, but are all instances of a person who claimed to retain Scotch or other foreign property against the will, and irrespectively of English law, Foreign Law. 213 claiming also (wlietlier. as plaintiff or defendant) to take benefits given him by the will, and, therefore, in virtue of English law. In the earliest of these cases {Brodie v. Barry, 2 V. & B. 127), the testator expressly devised all his freehold and other estates in England, Scotland, and elsewhere, and his personalty, on trusts for his nephews and nieces. The attempt to dispose of the Scotch estates by the will being inoperative, they passed to the defendant as heir by Scotch law, and the other nephews and the nieces brought their bill against hiin for a declaration that he was bound to elect. On this a question arose whether the case was to be decided on the analogy of the English cases which had established that a will of freeholds, void for want of due execution, could not be read against an heir ; or of those which had decided that a will of copyholds, though they had not been surrendered to the use of the will, could be so read. Grant, M. E., held that, if the ease was to be decided by English law at all, the latter analogy was the one to prevail. " As to the law of England, a f "^j^'^^g^ will of land in Scotland must be held analogous to to copy- . hold. that of copyhold estate in England ; and the will is No election equally to be read against the heir. It was said, a express will of copyhold estate may have some effect here to Scotch ,_ 1 , • -0 ,^ • • lajoA or upon the copyhold ; that is, if there is a previous necessary surrender ; but then the estate does not pass by the i™„. ''^' will, which operates only as a declaration of the use. In that respect there is no difference between a copy- hold and land in Scotland ; for if in Scotland there be a conveyance previously executed according to the 214 Foreign Law. proper feudal forms, the party may by will declare the use and trusts to which it shall enure " (p. 133). If the case was to be decided by Scotch law, the con- clusion, on the basis of Cunningham v. Gainer, was the same — the Scotch heir must elect. This case having established that, for the purpose of election, Scotch real estate stood in the same position as English copyhold, it was a reasonable consequence to apply to it the same rule as was applied to copyholds, viz., that the testator was not to be understood as attempting to dispose of it unless he either referred to it specifically, or unless, if he used general words, he had no other property to which they could apply. Indeed, in the case of Johnson v. Telford, 1 Euss. & My. 244, this rule was applied without reference to the comparison between Scotch real estate and EngHsh copyhold. Under a devise by a testator of all his real estate, it was held that there was no such intention shown to dispose of Scotch land that the heiresses who took the land needed to elect between it and interests devised to them in other land. The case rested in part upon the fact that some of the uses to which the real estates were devised were inapplicable to Scotch property. " Where a testator," said Leach, M. R., " uses oply general words, it is to be intended that he means those general words to be applied to such property as will in its nature pass by his will, and to the uses therein expressed" (p. 248). And where a testator, though he used sweeping words, such as " all my estate and effects," " the whole of my property in Foreign Law. 215 Europe," nevertheless appeared to be in fact only dealing -with personal property, it was held that the will did not dispose of Scotch heritable bonds so as to put the Scotch heir to election. Trotter v. Trotter, 4 Bl. N. S. 502. The analogy to English copyhold was the express basis of the decision in Allen v. Anderson, 5 Hare, 163, where a testator gave all his real, personal, and mixed estate and effects whatso- ever, and wheresoever, which he might be seised or possessed of or entitled to at the time of his decease, ia trust for all his children equally. He subsequently became the holder of a Scotch heritable bond which, on his death, passed to his son as heir. Wigram, V.-C, held — the testator having other property to which the general words would apply — that the heir was not bound to elect between the Scotch bond and his share under the will in the other property. This decision was followed in Maxwell v. Maxicell, 16 Beav. 106, afBrmed 2 De Gr. M. & Gr. 705 ; under a devise of " all my real and personal estate whatsoever and wheresoever," the testator (who had other real estate) was held not to show any intention to pass a Scotch heritable bond, and the heir taking it was not liable to elect— in fact he was held not to be taking it against the will. So, ia Baring v. Ashburton, 54 L. T. N. S. 463, a gift of "le surplus de ma fortune," in the will of a person owning land in France which did not pass by the will, was held not to be an attempt to devise it, and therefore the Erench heir was not put to election ; and m Maxwell v. Eyslop, 4 Eq. 407, the testator, after a devise of the residue 216 Foreign Law. of Ms real and personal estate, bought Scotch land which descended to his Scotch heir ; the heir, who took benefit under the devise, was not liable to elect. "Where, however, there is express mention of the Scotch or other foreign property in the words of disposition, the case is different. As Knight-Bruce, L. J., observed in Maxirell v. Maxwell, " if the testa- tor had mentioned Scotland in terms, or had not had any other real estate than the real estate in Scotland, there might have been ground for putting the heir to his election." Thus, where an Irish wiU ex- pressly purported to devise Scotch land, and gave benefit to the heir who took the land notwithstanding the will, SugdeUj L. C. of Ireland, considered that the heir was bound to elect ; the point, however, was not decided, as the case was compromised. McCall V. McCall, Dru. 283. In Lamb v. Lamb, 5 "W. E. 720, a testator purported to devise a Scotch herit- able bond, which, notwithstanding such devise, went to the heir, and he gave the heir other benefits ; the heir was required to elect. And in Orrell v. Orrell, 6 Ch. 302, a will devising " the residue of my real estate situate in any part of the United Kingdom or elsewhere," was held a sufficient expression of an intention to pass real estate in Scotland, to put the heir of such estate to election between it and interests given him by the will. ( 217 ) CHAPTER XVI. ON THE ADMISSION OF EXTRINSIC EVIDENCE TO KAISE ELECTION. As election arises upon an attempt by one person to Evidence dispose of property belonging to another, the ques- rounding tion has to be considered, "What evidence of such missiWe ; attempted disposition is admissible ? It is in cases of ■wills that this question has chiefly arisen, and there the general principles relative to the admission of extrinsic evidence in connection with -wills afford the natural answer to it. These principles are — (1) that extrinsic evidence is admissible to identify the objects / disposed of, and afford all needful inforaiation as to their description, ownership, and other matters of fact necessary to be known for understanding or carrying out the wiU (compare p. 46) ; but (2) that it is not tut not of . .1 J. J.1 expressions admissible for the purpose of showmg that the of inten- testator intended to express anything which he has not in fact expressed. Thus, if the will of A. dis- poses of Whiteacre, extrinsic evidence is, of course, admissible to show what particular close of land is Whiteacre, and also to show that Whiteacre belongs to B. ; but if his wiU disposes of " aU my real estate," extrinsic evidence is not admissible to show that he supposed something to be his which in fact was not E. ^ 218 Admission of extrinsic Evidence. his, and that he intended to dispose of that (a). Any conclusion which the law can recognize, that under words of this nature he was intending to deal with something which was not really his own, must be a conclusion hased on the words of the wiU itself, or the words viewed in the light of surrounding facts, as in the eases considered in the preceding chapters. Thus, in Stratton v. Best, 1 Yes. jun. 285, a testator had sufiered a recovery of the manor of B., though only entitled to part of it. Some time after, he made a will disposing in general terms of all his real and personal estate. Thurlow, L. C, held that his will could not be regarded as meaning to dispose of the share which was not his own. " To do this, I must say that evidence dehors the will of the testator's opinion at any time " [meaning his opinion that he was owner of the whole] " may be produced, and I do not think that is the law of the Court. All the arguments in Nays v. Mordaunt, and the whole suite of cases upon this subject, have turned upon the expressions of the will. If I was to receive evidence of the testator's fancy, it would introduce a very desperate rule of property in this Court." And in the more recent case of Clementson v. Gandy, 1 Keen, 309, the rule is laid down thus by Lord Xiangdale, M. E.. : 1 1 " The intention to dispose must, in all cases, (a) The above, it is apprehended, la a short statement of the law, tQ the same effect as the more full expression of it in Taylor on Evidence, 8th ed., pp. 1015, 1021, §§ 1194, 1196, 1201, and 1202, corresponding to former §§ 1082, 1083, 1087, 1088. Admission of extrinsic Evidence. 219 appear by the will alone. In cases wHch require ~ it, the Court may look at external circumstances, and consequently receive evidence of sueL. circum^ stances, for the purpose of ascertaraing the meaning of the terms used by the testator. But parol evi- dence is not to be resorted to except for the purpose of proving facts which make intelligible something in the will which, without the aid of extrinsic evi- dence, cannot be understood." This doctrine, it is conceived, is now well estab- lished, but it was for some time doubtful, as in certain decisions cases of election were treated as exceptions from the general rule relating to extrinsio evidence in connection with wills. The case which led the way in this deviation from principle (after Baugh v. Read, 1 Ves. Jun. 257, in which Thurlow, L. C, inclined to think that the insufficiency of the testator's estate to meet all his bequests was a latent ambiguity, rendering evidence admissible of his regarding certain other property as his own, but did not actually decide to this effect) was Pulteney v. ^^f^^J^ Lord Darlington, or Lord Darlington v. Pulteney, which lingion. is not separately reported: the proceedings and decision in the ease are largely stated in the state- ment of Lady Gavan v. Pulteney, 2 Yes. jun. pp. 552, 553 ; but on the question of the admission of parol evidence, the chief note of it is in the judgment ia 3 Ves. p. 529. " The question was," says Alvanley, M. E., "whether General Pulteney did or did not intend to comprise in the wOl an estate of which he supposed himself to be the owner." The will (see T.2 220 Admission of extrinsic Evidence. 2 Ves. jun. p. 549) devised in general terms all his lands and real estate in the county of Middlesex; there were certain houses in Sackville Street of which he was in truth only tenant in tail, but supposed himself to be owner in fee simple. To prove that he did intend to comprise these houses under the general words, though having large estates of his own to answer them, " the steward's account, and a settle- ment as drawn up by hiTn of the state of his pro- perty, were ofPered in evidence and admitted and commented upon." In the admission of this evi- dence, Thurlow, L. C, De Grey, C. J., and Eyre, B., concurred : " Baron Eyre says he does not agree to the position laid down, in the general sense of it, that where a man gives all his estate, he does not mean to give what is not his : what he thinks his is, in the sense he uses the word, his." On the same principle, in Mnch v. Finch, 4 Br. Ch. 38, Lords Commissioners Eyre and Wilson agreed that a testator under a devise of " aU. and every his real estate," and being in possession of certain lands of which, though only tenant for life, he supposed himself to have the fee simple, must be taken as devising those lands. Following Pulteney v. Loi-d Darlington, Alvanley, M. E., in Sinchcliffe v. Ilmchcliffe, 3 Ves. 516, on the question whether benefits given to younger children by a will were meant to be in addition to those given them by a settlement, or whether they must elect between them, admitted in evidence accounts drawn up by the testator of his property, in which accounts he Admission of extrinsic Evidence. 221 treated the settled property as his own : and he con- vinced himself that in so admitting them he was not admitting them to explain the will, but to show the circumstances under which it was made. "With regard to this decision, however, it is to he observed, as was pointed out by Eldon, L. C, iu Pole v. Lord Somers, that the testator, having received the settled property, was a debtor to his children for the amount of it, therefore there was a presumption that the wiU was meant in satisfaction of that debt, and parol evidence would be admissible to meet or to fortify that pre- sumption. The decision in Pitlteney v. Lord Darlington was fol- Disap- lowed but unfavourably commented on by Lough- ruitmey v. borough, L. C, in Rutter v. Maclean, 4 Ves. 531, ungtm. p. 537 (on appeal from Wright v. Rutter, 2 Yes. jun. 673); and his comments were echoed by Eldon, L. C, in Pole V. Lord Somers, 6 Yes. 309, p. 322, in which case his doubt whether such evidence was admissible was so great that he declined to act on the evidence, and decided the case irrespectively of it. The question there was whether a testator by the gift of " all the residue of his estate and effects," intended to dispose of a sum of consols vested in trustees for his family, on which question there was tendered in evidence a schedule in his writing giving an account of his property for the information of his executors, and including the consols. The point, however, which Lord Eldon evaded dealing with here, he had to face in Brme v. Denison, 6 Yes. 385, and in deference / to the authority of Pulteney v. Lord Darlington and 222 Admission of extrinsic Evidence. Hinchcliffe v. Hinchcliffe — wMle not professing to understand them — ^he did admit the evidence, which was similar in nature to that in Pole v. Lord Somers. The effect of the decision was weakened by the fact that he considered the paper in question was one which " must either be looked at as evidence, or the party ought to have the opportunity of propound- ing it as a testamentary paper to the Ecclesiastical Court." In his subsequent observations in the House of Lords {Doe dem. Oxeitden v. Chichester, 4 Dow, 65, p. 89), LordEldon repeated his condemnation of the doctrine enunciated ia Pulteney v. Lord Darlington, and practically removed whatever aid had been given to it by Druee v. Denison. He also cited a case before Lord Kenyon, the name of which he gave as Andrews v. Lemon, but which is no doubt the case of Andrews v. Emmot, 2 Bro. Ch. 297. Here a testator having "bequeathed aU his personal property (he having personal property of his own and also per- sonal property not so strictly his own, but which he had power to dispose of by deed or will), for purposes for which his own was insufficient. Lord Kenyon sent it to the Master to inquire whether by personal property he meant his own strictly, or intended to include both. But when the evidence was taken he was so much struck with his own decision that he said, 'though the evidence has been taken, I shall not now admit one word of it,' it being necessary for the general interests of mankind that persons should in their wills state clearly what they mean." Admission of extrinsic Evidence. 223 Pulteney t. Lo7-d Darlington and Hinchcliffe v. Hinch- cliffe were, however, again cited as authorities, and the latter was expressly followed in Quillehaud v. Meares, 7 L. J. Ch. 136. Here a lady having originally 30,000/. of stock, parted with 25,000/. by voluntary deeds, and then made her will disposing of 30,000/., and instructed her solicitor that she had 30,000/. The evidence of the solicitor, and a paper writiag, which he took down at the time, containing her statement as to her property, and which he referred to as an exhibit, were admitted to show that she meant to dispose of the 25,000^. as her own, though it was in fact already appointed, and so to raise a case of election. The admissibiHty of the evidence does not, however, appear to have been disputed, and the judgment of Leach, M.E., as reported, is very brief. In Astley v. Milks, 1 Sim. 298, Bruce v. Denison was ineffectually cited as an authority that a plaiatiff is entitled to adduce extrinsic evidence in order to put a defendant to election — that the case for election need not arise on the face of the will. The doctrine of Fulteney v. Lord Darlington and similar cases was further condemned in Dummer v. Pitcher, 2 My. & K. 262, where the point did not call for a decision; and in Clementson v. Gandy, 1 Keen, 309, there was a direct decision to the con- trary. There a testatrix, having by wUl confirmed a settlement giving A. 6,000/. (which settlement had been delivered up to her to be cancelled on her settling a sum of over 9,000/.), bequeathed the residue of her personalty. Evidence was tendered to show 224 Admission of extrinsic Evidence. that she was under a mistake, and supposed the sum of over 9,000^. to he still her own, hut such evidence was refused. "It is tendered for the purpose of showing that the testatrix hequeathed property as her own which did not helong to her . . . The intention to dispose must in all cases appear by the will alone." (And see ante, p. 219.) A doctrine so anomalous ia itself, and which has received such repeated censure — including censure by one of the judges who had contributed a decision in support of it — may now, it is conceived, be taken as altogether overruled. It seems that it can hardly be necessary to modify this statement, even in view of the following words of Jessel, M. E., in Pickersgill V. Rodger, 5 Ch. D. 170, 171. "The law upon the point I take to be well settled, and it is this — that before you attribute an intention to a testator or testatrix to dispose of that which does not belong to him or her, you must be satisfied, from the form of the instrument, that it does dispose of the property which does not belong to him or her, and that is aU. The presumption, in the absence of evi- dence to the contrary, is that the testator, by his will, intends merely to devise or bequeath that which belongs to him, and that presumption is in favour of ^ i those who contend against the legatees. On the I other hand, it is only a presumption, which may be . [ ( rebutted even by parol evidence ; and it may be re- butted by evidence showing that, under a misappre- hension of law, the testator believed that the property ^ which did not belong to him, did really belong to him." r Admission of extrinsic Evidence. 225 On these words it is to be observed, firstly, that is the ii in • question they were wholly unnecessary for the case in which oaeof pre- they occur; "she gives," said the M. R., speaking of °'™^ °^' the testatrix with whose will he was dealing, " what it turns out she had no power to give, but she has clearly given all the property in question by a proper description, a description which, it is admitted, applies only to that property." No question of the admissi- bility of parol CYidence arose in the case. It may also be remarked, that the qualifications introduced in the last sentence appear to render unmeaning the statement in the first sentence, that you must be satisfied, "from the form of the instrument," that there is a disposition of what is not the testator's. As he had said just above, the question whether the testatrix purports by a testamentary instrument to dispose of what is not her own " is a question of the construction of the instrument." If so, then it is not a question of presumption. And, still further, in treating the admission of evidence on a question of the testator's intention to give what is not his own, as a case of admitting eiridence for the rebutter of a presumption, his lordship silently passes over and obliterates a distinction which is repeatedly and care- fully dwelt upon in the cases in which the admissi- bility of such evidence is discussed. For, that evidence is admissible to rebut or to support a presumption is well established and un- disputed. On a question of satisfaction, therefore, when resting, as satisfaction often does, on a pre- sumption, extrinsic evidence is clearly admissible. l5 226 Admission of extrinsic Evidence. And, as the result of satisfaction, if it is established, may he that there arises a case of election, the ques- tion of election may depend remotely on the extrinsic evidence. The admissihility of such evidence in these cases is part of the law of satisfaction, and not of election, an3 does not require to he here fully gone into : hut what is to be noticed, is, that in all Lord Eldon's repeated examinations of the doctrine that evidence is admissible to prove that a testator intended to dispose of another's property, though he has not expressly said so, a sharp line is drawn between the admissibility in these cases and in those into which a j I presumption of satisfaction enters. From the latter class of cases, it is maintained, no precedent can be taken that is applicable to the former. Thus, as already mentioned. Lord Eldon, while gravely doubt- ing PuUeney v. Lord Darlington, approves of HinchcKffe V. HinchcUffe — ^which professed to follow it — on the ground that in the latter there was a presumption of satisfaction of a debt, which rendered the evidence admissible. In Pole v. Lord Somers, besides the ques- tion of pure election, which, as stated above. Lord Eldon decided without relying in any way on the parol evidence, there was also a question of satisfaction, on which he had no doubt that the evidence was admis- sible. The testator had received certain money to which his children were entitled, so that he was a debtor to them for the amount, and he left them certain benefits. " With regard," said Lord Eldon, " to that sum" p. e., the money received by the tes- tator], "his will in this Court affording a presumption Admission of extrinsic Evidence. 227 of satisfaction, it "woiild. be competent to meet that presumption ty evidence, and to admit evidence to confirm it, and as to that, this schedule undoubtedly would be evidence." (6 Ves. p. 322). And in Bruce v. Benison, after stating the admitted law, that in cases of satisfaction " evidence is let in to meet the presumption," he goes on to discuss the real question in the case, " Then are the cases of election to be governed by the same principles as cases of satisfaction?" (6 Yes. p. 399), and defers only to authority in concluding that, contrary to principle, they are to be so treated — a conclusion which he and other judges have subsequently condemned and prac- tically set aside. These clearly drawn distinctions are all slurred over in the dictum — fortunately, a dictum only — quoted above from the judgment of Jessel, M.. E.. It seemed necessary to notice it in detail, but it is conceived that it cannot really afBect I the doctrine of JDoe d. Oxenden v. Chichester, Andrews ; V. Emmot, Bummer v. Pitcher, and Clementson v. I Gandt/. ( 228 ) CHAPTER XVn. OF AN ONEROUS AND A BENEFICIAL GIFT IN ONE INSTRUMENT. Two sepa- The troad languas-e in wliicli the doetrme of election rate gifts . , . in one has Occasionally been laid down — as, that " you mnst instmiiient , , •• / —one may adopt or reject the whole instrument {Wilson v. betaken Towfishend, 2 Ves. jun. 693), has led to a question the other, being raised which may he noticed here, though not falling strictly within the scope of the doctrine, — viz., the question whether where the same instrument confers on the same person two gifts, of which one is beneficial, but the other is onerous, it is open to him to accept the former and reject the latter. The bulk of the English cases appears to have settled that, in the case of two separate gifts, he may do so, unless there is something — beyond the mere fact of the gifts both being by the same instrument — ^to show that the donor intended that the one should not be taken without the other. In the ease, indeed, of Talbot v. The Earl of Radnor, 3 M. & K. 254, it was held that where a leasehold house subject to a rent greater than it could be let for after the testator's death was bequeathed to a legatee, who took an annuity imder the same instrument, he could not accept the latter without the former. Onerous and Beneficial Gifts. 229 Tte facts of this case -were subjected to special sorutiny in Fairtlough v. Johmtone, 16 Ir. Oh. E. 442, with a view to ascertaiaing whether the decision rested on exceptional circumstances; but none such appearing, it was concluded to amount in fact to a decision that when a testator bequeathed a leasehold house, he indicated his intention that his estate should no longer be burdened with the rent of it; and it was followed by holding that, under a bequest of all the testator's personal estate, the legatee could not refuse a leasehold house actually let by the testa- tor at a lower rent than he was liable to pay for it, and of which therefore he could not fail to know the onerous character. Nevertheless the doctrine above stated is estab- lished by a chain of oases. In Andrew t. Trinity Sail, 9 Ves. 525, a college was held entitled to take a gift of plate while refusing other property, given on the condition of establishing certain fellowships. In Moffett V. Bates, 3 Sm. & Gr. 468, the legatee took an estate while renouncing a bequest of shares in an insolvent company. In Warren v. Rudall, 1 J. & H. 1, the bequest renounced was the fag end of a lease, subject to a heavy liability for repairs; the legatee accepted the devise of a freehold and a pecuniary gift. In Long v. Kent, 13 W. E. 961, a testator bequeathed to a daughter 1,000/., and gave shares liable to calls equally among his sons and daughters — ^the daughter could take the 1,000/. and decline the shares, as no intention was shown to connect the two gifts. 230 Onerous and Beneficial Gifts. How, as to But wliere tlie gift is of one entire thing, or what takmgpEirt only of one the testator treats as such, the decisions are varying; in some it is held that the legatee cannot, and in some that he can, take part and reject part. In Ch'een v. Britten, 42 L. J. Ch. 187, there was in one codicil a hequest of 6 villas " together with the orna- mental park I am forming opposite the cottage and villas" — and Bacon, V.-C, held (notwithstandiag that the testator had originally dealt with the villas apart from the park) that the legatee could not take the villas without the park, saying " I cannot enter- tain the least doubt that it is a gift of one entire thing." But subsequently, in Aston v. Wood, 31 Xi. T. 293, where a bequest of certain shares was pre- ceded and followed by other objects, all given in the same sentence, ["I give and bequeath .... also all the shares in the Flintshire Oil Company, also .... unto" a nephew and niece "in equal shares and proportions"] it was held to fall within the prin- ciple of Warren v. Rudall, so that the legatee could refuse the oil shares and take the other gifts ; and on counsel attempting to distinguish it from Warren v. Riidall, because the gifts were separate — that is, pre- sumably, the gifts in Warren v. Rudall — ^the V.-C. said, "I cannot conceive that that can make any possible diSerence." In Guthrie v. Walrond, 22 Ch. D. 573, under a gift of " all my estate and effects in the Island of Mauritius," it was held that the devisee could not refuse an onerous lease and take the rest of the property — the gift here being a single and undi- vided one ; and " it appears to me " said Fry, J., Onerous and Beneficial Gifts. 231 " that sucli a gift is prim& facie evidence that it was the testator's intention that the gift shoiild he one, and that the legatee shall either take it all or take none of it," and he referred to G-reen v. Britten as fortifying his conclusion. This principle, it may he ohserved, would have supported Fairthugh v. John- stone, apart from all question of the value, as an authority, of Talbot v. Earl of Radnor. It would appear, therefore, comparing Guthrie v. inference. Walrond with Aston v. Wood, that under a bequest of "my leasehold at A., also my leasehold at B., also my leasehold at 0.," the legatee can refuse B. and take A. and C, but under a bequest of " all my lease- holds," he cannot, In Syer v. Gladstone, 30 Ch. D. 614, it was held that a bequest in one sentence, of a house and the furniture in it to a legatee for his life — ^the house being subject to a mortgage — does not impose upon the legatee, if he accepts the use of the furniture, the necessity of keeping down the interest on the mort- gage debt: but this was on the principle that a devisee of mortgaged property is under no personal liability to pay the mortgage debt. INDEX. Accept, can one, and reject, the same instrument? 197, 198, 228—231. Account, of values of both properties, right of person choosiag, to have, 127. declined, 127. election not blading tiU a. taken and report confirmed, 128. of rents and profits, right to, may be lost by delay, 148. of property received under a document elected agaiust, 156, 157. to what time it should go back, 156. ACQTnESCENCE, not necessarily confirmation, 122. Action, to ascertain values before election, 129. to recover compensation from person electing against docu- ment, 4, 164. to compel election, may be brought iu Chancery Division or Queen's Bench Division, 4. if brought in Queen's Bench Division, . may be transferred, 4. Acts, election by, what knowledge needed for [see Knowledge], 119—130. whether less biuding on representatives than express election, 145. injuriously affecting the position of others, election by, 140. not meant as waiver, no waiver by, 148. 234 Index. Acts — continued. of ownersMp over the property given, election to take it, 132. effect of, if inconsistent with terms of gift, 132, 133. over one's original property, not so decisive, 133. over both properties, no election, 135 — 139. over one, after election to take other, ineffec- tual, 139. married woman can elect by, 192. various, amounting or not to election, 134, 137, 138. what, constitute election [see Contents, Ch. Vill., pp. 132 — 142]. ADEMPTIOlf, distinguished from satisfaction, 77. raises no election, 78. ADMINISTEA.TOE, election by, not binding on other next of kin, 141. [And see Deeivatiye.] AlTEE-ACQTJIEED PeOPEETT, disposition of, if mere general bequest, raises no election, 48. special description of property not likely to refer only to, 50. devise of, in land, before Wills Act, whether election raised, 65. since Wills Act, 65. not passing by Scotch deed, 211. whether married woman could elect to give up, 206. under Married Women's Property Act, 1882 . . 207. ALLOWANCES, to person accounting for receipts under property elected against, 157. Amotjnt, gift of greater a. than testator owns, eflect on election, 45. whether the bequest is general, 48. of testator's property, whether evidence of, is admissible on question of election, 46. [And see Valtie.] Index. 235 Anntutt, charge of, may show intention to give more than a rever- sion, 45. to ■widow, no bar to dower out of sam.e property, 69. Appointment. [See Contents, Ch. V., pp. 81 — 93.] infringing rule against perpetuities, result, 83 — 85. invalid, with gift to persons taking in default, raises elec- tion, 81. because made to non-ohjects, 82. but how, if it might have been to objects, 86. or because out of time, 82. at wrong time, 82. inconsistent with prior a., 82. made by deputy, 83. without power to appoint, 86. valid, followed by void limitation, 84, 99 — 105. conditional on having power to make it, 87. conveyance by appointee, 106. election not raised by, unless there is free property of appointor, 89. or property subject to general power, 90. more than exhausting fund, 91. of land charged with sum, how construed, 105. successive inconsistent appointments, 92. to A. if he conveys to B., else to B., 105. under general power, makes property part of appointor's estate, 60, 88, 90. void limitations followed by valid a., 88. "Appeobate and Eepeobate," doctrine of, Scotch name of election, 210. Aeticles, application of rule of election to, 4. Assignee, how affected by subsequent election by assignor, 175, 176, 179. in case of equitable interests, 175, 177 — 180. Attoeney, power of, to elect, 192. 236 Index. BENEnciAi,, gift, and onerous, given together, 228 — 231. [And Bee OlTEEOtrs.] Benefits, acceptance of, given by document, election to take under it, 132—135. Bond, Scotci heritable, 215, 216. CANCELLATioif, of deed elected against, not ordered, 165. Chance, loss of mere, does not entitle to compensation, 165. Chancery, how Court of, treated a disposition of another's property, 3. ascertained the construction of mil of land, 129. Division, election not specially reserved for, 4. action for election may be transferred to, 4. Charge, gift of property is gift subject to existing c, 57, 58. even where devisor has no devisable interest, 68. but not if he claims against the instrument creating the c, 59. Chiep Cleee, reference to, before election for infant, 185. by married woman, 194. sometimes dispensed with, 187, 194. Claim, without means of proof, not enough knowledge for elec- tion by acts, 123. Common, tenant in, gift of property by, generally held to be gift of whole, 53, 54. though described as "my " house or land, 53, 54. [And see Paet.] Compensation. [See Contents, Ch. XI., pp. 150—169.] action lies for, as for damages, 4, 164. amount of, how determined, 154. by any means is enough, 162. delay, from what date, bars claim, to, 148. election to take against document involves need of making, 150. Index. 237 Compensation — continued. election to take under document, can this involYe c. ? 173 180. established both in settlements and in wills, 153. ho-w person to be compensated takes, 158. in election against a Crown grant, 163. out of an inalienable interest, 165, 180, 203 — 206. a life interest, 161. question between c. and forfeiture, 10, 150 — 153. required, because just, 14. right to, merely a pecuniary right, 153. when inchoate, 162. complete, 162. security for, what, 153, 164, 165. shared in proportion to losses, 156. total disappointment, not needed, to entitle to, 160. when right to, arises, 148. steps can be taken to secure, 162. working out, of right to, 167 — 169. CoMPEOMlSE, of suit raising question of election, right to put to election is lost after, 107. CoNDirioif, doctrine of implied, 6. discussed, 8 — 13. election distinguished from, 8 — 13. instances of strict, 9, 20. c. not strictly so called, 20. what is properly speaking, 8, 9. in appointment under limited power, 90. Conditional, appointment c. on haying power to make it, 87. gift, two classes of, 8, 9, 20. gift c. on re-settlement of estate, is not disposition of the estate, 31. CONFIEMATION, acquiescence is not necessarily, 122. knowledge needed for, 122. of invalid document, effect, 122. report on account, election not binding until, 128. 238 Index. CoNSrOEEATIOlf, in marriage settlements and contracts, 76, 202. taking benefit -wMle refusing to give the, 75, 76, 197 — 202. CoNSTETJcnoif, natural, not to be departed from, because it raises election, 29. Contingent, interest enougb to raise election, 16. owner of , can have his right to compensation secured, 162. gift to infant, election sometimes postponed, 185. CONTKACT, application of rule of election to c. resting in articles, 4. executed by conveyance, 5. Conveyancing Act, 1881 (44 & 45 Vict. c. 41), s. 39...205. Copyhold, not surrendered, election formerly raised by devise of, 63, 64, 97. not so now, 64. whether general devise included, 64. will of Scotch land assimilated to will of, 213. Dower Act does not include, 66. freebench in, 66. [And see Peeebknch.] Counsel may declare election, 132, 185. Ckebitoe, not put to election, 106. unless, qu., by devise for paym.ent of debts, 106, 107. though disputing statement in will as to amoimt of his debt, 36. by benefit to debtor against whose estate he claims, 113. Ceown grant, results of election against, 163. Death, without electing, 143 — 145. right to elect survives on death to representatives, 143. Index. 239 Death — continued. wtether representatives bound where predecessor not, or vice versa, 144. of person electing against document does not aSeot rigM to compensation, 164. Debt, extinguished by devise in satisfaction of, 143. DECrLAEATION, express is valid election, 132. of election needs no form, 132. may be by counsel at bar, 132. that property not testator's is to be treated as his for the •will, effect of, 49, 56. Deed, elected against, not ordered to be delivered up for cancella- tion, 165. in substitution for will, raises no election, 77. ■will in substitution for, raises election, 78. two deeds treated as one for election, when, 5. why fewer oases of election on d. than on will, 197. Dehoes, election not raised on matter d. the will, 5, 218." instrument, one claim must be, to raise election, 87 — -89. Delay. [See Contents, Oh. X., pp. 146—148.] right to elect, whether lost by, 146. call for election, whether lost by, 147. not while right reversionary, 147. compensation, whether lost by, 148, 162. Deputy, appointment void because made by, 83. DEEIVATrVE, interest, whether aSected by election by person from whom derived, 174—179. from person taking against a document, is person taking under it put to election by ? 111. yes, if the d. i. is the first, 112. two d. interests in different persons from one who was liable to elect, 113. 240 Index. Disappointed, devisee or beneficiary entitled to compensation, 150. need not be totally, 160. {And see Compensation.] Disposition, any, inconsistent 'with rights of beneficiaries, raises elec- tion, 30. by owner of only reversionary interest, 43 — 45. gift conditional on re-settlement of estate is not d. of the estate, 31. limited preferentially to disposer's own property, 41. mistake which is expressly the reason for a, whether it raises election, 32, 35. recital, whether equivalent to, 33 — 39. which never takes eflect, raises no election, 107. of another's property, what words imply [see Contents, Ch. m., pp. 27—62]. of one's own property, inefiectual attempt at [see Con- tents, Ch. IV., pp. 63—80]. of property subject to another person's general power of appointment, 60. Distress and Entby, annuity with power of, was not incon- sistent with dower, 69. DiSTErBUTiONS, STATUTE OF (22 & 23 Ghas. 2, c. 10), persons entitled under, take specific interest in deceased's property, 112. may be put to election by gift to him, 112. can only be excluded by valid gift to another, 109. one of, can be excluded in favour of the rest, where intestacy con- templated, 110. Division, direction for equal, between widow and others, effect, 70, 71. Index. 241 Doctrine, of election stated, 1,2. is an equitable one, 3. and now a legal one also, 3. varioTis statements of the, referred to, 6. Dower, amount of estate as affecting question of election between annuity and, 46, 47. effect of gift in satisfaction of, where husband intestate, 1 10. election between post-nuptial jointure and, 193. same principles apply as in other cases of election, 15. formerly gift by husband to wife, and disposition incon- sistent with d., raised election, 65. not so since Dower Act, 65. old law of, still applies sometimes to freebench, 66. modem tendency against putting widow to election, 67. metes and bounds, devise inconsistent with d. by, raised election, 68. ■dispositions not inconsistent with — devise to another person, 68. anniiity or rent-charge to widow out of the property, 69. though with power of distress and entry, 69. or followed by gift of surplus rents and profits, 70. devise in trust for sale, 70. to widow of part of whole out of which dow- able, 71. of interest in remainder, 71. dispositions inconsistent with dower — gift of use and occupation to another, 72. power in trustees of leasing, 72. though widow have no right to actual land, 73. to let, 72. from year to year, 72. of management, &c., 74. disposition which would put co-owner to election, 74. exclusion of dower as to part of subject of one whole devise, 75. E. M 242 Index. DoATOE Act (3 & 4 Will. 4, c. 106), effect of disposition by husband, 66. declaration against dower, 110. copyholds not within, 66. DrTT, to elect, effect of, on claim not to have elected, 139. " Electing to take both," no election, 135 — 139. Election. [See, Contents. J Enjoyment, of benefit under document, held sometimes to be election, 120, 121, 127. not so if without necessary knowledge, 121, 130. Equality, where testator contemplates persons sharing property in e., 51, 71. in cases of dower, 70, 71. Equitable Inteeests, whether assignee of, affected by subse- quent election by assignor, 175, 177—180. Equity, election formerly enforced only in Courts of, 3. rests on highest principles of, 12, 14. Evidence, admission of extrinsic, to raise election [see Contents, Ch. XVI., pp. 217—227]. admitted to identify objects, 217. convey information of facts, 217. rebut or fortify presumption, 221, 225 — 227. not, to show intention to express what is not expressed, 46, 217. testator supposed others' property his own, 46, 218—227. of amount of testator's property, 46 — 48. Exclusion of election by expressed intention to the contrary, 22—26. Index. 243 EXECrOTOK, proying will does not thereby elect, 120, 134. gift to, of power to sell land, is a disposition of it, 30. Foreign, law [see Contents, Oh. XV., pp. 208—216]. property not disposed of by general words, 214. unless applicable to nothing else, 214. FOEFEITHRE, whether election to take against dociament involves, 10, 150—153. opinion of Lord St. Leonards, 166. limited clause of, may exclude election generally, 23, 24. Pratjds, Statute op (29 Chas. 2, c. 3), formalities required by, Court cannot regard a document in absence of, 96, 97. how treated in Scotch Courts, 211, 212. " Feee Disposable Peoperty," need of, for election ia case of appoiatment, 89. Fbeebench, generally liable to be defeated by husband's alienation, 66. or now by his wiU, 66. when not so, old law applies to, 66 — 75. not always Kable to be set out by metes and bounds, 68. stni, trustees' power of leasing may be inconsistent with, 73. covered by gift in lieu of dower or thirds, 75. Gbni;bai., bequest does not raise election, 48. may be, though the amount is that of an existing fund, 48, 49. what is and what is not a, 48 — 51. devise does not carry foreign lands, 214. unless applicable to nothing else, 214 — 216. whether it included copyholds not surrendered, 64. m2 244 Index. General — continued. power of appointment, disposition of property subject to- another's, 60. exercise of, makes the property assets of appointor, 60, 88. semble, property included in, practi- cally the appointor's for election,. 90. words sometimes carry settled property, 52. but not generally, 52. GUAEDIANSHIP, disposal of, of beneficiary's child, 19. how submitted to, 19. Heir, claiming only by lapse cannot put devisee to election, 117. devise to, of land which would have descended, can raise- election, 18, 19, 65. heirlooms given from, whether election raised, 114, 173. no election by gift to, which if given up reverts to him, 109.. not deprived without valid gift to another, 109, 110. takes freehold refused by devisee, 158. semble, can keep it on satisfying claim of disappointedi devisee, 159. taking after-acquired estates against will, before WUls Act, 65. personalty under a will void as to land, 94. Scotch or other foreign property against the will,. 212—216. Heirloom, clause, inappropriate to gift of reversion, 45. given away from heir, 114, 173. Hotchpot, proviso for, added to appointment, 106. HUSBAITD, whether h.'s vested interest in right of wife can be affected by her election, 176, 177, 195, 196. put to election by wife's ynU, not of separate property, 97. Index. 245 H■D'SBA^^) — continued. not put to election by gift to wife's separate use, 107. bequest to, by wife, of wiat he would have taken on intes- tacy, 19. of infant, election by, for her, 184. [And see Makeied WoMAlf.] Idesttift, evidence admissible to i. objects, 217. Inauenable, property, compensation out of, 165, 203 — 205. person required to give up, 170 — 180. attempt to dispose of another person's, 180, 181. can there be election between two interests, one being i.? 114. Inctjmbkance, gift of property, not a gift of it free fi'om i., 57. [And see Charge ; Mobtgagb.] Inpamt, covenant of, to settle after-acquired property, 20G. election by, formerly postponed tUl majority, 184. or (in case of girl) marriage, 184. reference to ascertain what is best for, 185. sometimes dispensed with, 187. how rents and profits go tUl election by, 185, may be put to election at once, 188. settlement by, whether raising election, 198 — 201. will by, formerly, question of election under, 94. IiTHEEiTAKCE Act (3 & 4 WiU. 4, c. 106), 18, 19. Insupeiciexct, of estate to meet bequests, effect as to evidence, 48, 219. [And see Amoust ; Values.] IrrTENTIOH', election rests on an implied, 11, 13, 204. what the i. implied is, 13. expressed to the contrary excludes election, 22. as gift without power of anticipation, 23. or Umited clause of forfeiture, 24. m3 246 Index. Intention — continued. excluding election, who may express, 25. making election is question of, 132. not needed, that there shall be election, 11 — 14. to dispose must appear by the mU alone, 218. of others' property must be clearly expressed, 27.- exclude election, how shown, 22 — 26, 204, 205. how counteracted, 206. where no i. to elect, a document is not election, 132. International Law, principles of, in conflict of laws, 208. Intestacy, gift in satisfaction of rights on, 109 — 111. [And see Heie ; DISTRIBUTIONS.] Joint, interest, testator haying, and bequeathing the property to co- owner, 45. as stock transferred into j. names of testator and wife, 48—51. JOINTTJEE, election between post-nuptial, and dower, 193. excluding all right to dower, raises no election, 75. Jointuring, power of, inappropriate to gift of reversion, 44, 45. in trustees, inconsistent with dower, 74. Judicature Acts (especially 36 & 37 Vict. c. 66), 3, 4. Knowledge, by donor that he is disposing of what is not his own, not needed to raise election, 11, 14 — -16. full, necessary for waiver or release, 149. necessary for a biading election by acts [see Contents, Ch.VII.,pp. 119—130]. apparent absence in some cases of the, 120. if really absent no election possible, 121, 203. suspicion of right not enough, 122. nor claim without means of proof, 122. for election by declaration, what is, 130. of existence of question of election, effect of, 126. rule of election, not presumed, 4, 124, 125. Index. 247 Land, given in satisfaction of debt, 143. Lapse, no election for benefit of person claiming by, 117. Law, document disposing of another's pi-operty formerly void at, 3. rule of election said to be rule of, 4. Leasehold, bequest of, intention shown by, 229. onerous, effect of refusing, 228 — 231. Leasing, power of, inappropriate to gift of reversion, 44. in trustees, inconsistent with dower, 72 — 74. Legacy Duty, not payable on sum given up by owner in obedience to will, 181. unless land is devised to him, 181. Legal, estate in property refused by devisee, 158. given up by owner, 170. interest in assignee, whether affected by election of assignor, 175. Legatee, residuary, cannot put claimant against estate to election, 108. can be put to election by benefit to his testator, 113. Life, tenant for, his election does not bind remainderman, 142. Limited, power, appointment under, 90, 91. London, election in cases imder custom of, 144, 151. Lunatic, election in case of, 188. Majoeity, election made by, not binding on minority, 141. Malins' Act (20 & 21 Vict. c. 57), 202. Management, power of, in trustees, inconsistent with dower, 74. 248 Index. MaeeiAge oontracts and settlements, what is tte consideration in, 76, 202. MAEEIED WOMAlf, ability to elect, 191 — 195. can elect by acts, 192. as to real estate, -witliout deed acknowledged, 192, 193. bow as to personal estate, 193, 194. cannot always elect to part witb reversionary personalty, 202. election by [see Contents, Ch. XIV., pp. 190 — 207]. wbetber it can affect interest vested in bnsband, 176, 177, 195, 196. good as to personalty, not reduced into possession, 178. in case of separate estate witbout power of antici- pation, 180, 181, 203—206. after-acquired separate estate, 206, 207. gift to, for separate use, does not put busband to election, 107. husband's dissent from her election, 193, 195, 196. infant, wbetber husband could elect for, 184. position of, under new law, 190. probate of will of, formerly, 97. now, 98. reference to master (or chief clerk) prior to election by, 194. sometimes dispensed with, 194. whether she was bound by, 195. reversionary personalty, sometimes cannot elect to part with, 202. taking benefit in consideration of void settlement, 197 — 202. will of, without husband's consent and not of separate pro- perty, raised no election, 97, 98. Maeeied Women's Peopeett Act, 1882 (45 & 46 Vict. c. 75), 99. election by woman to whom Act applies, 190. effect, on power to elect, of s. 1 sub-s. 4.. 206, 207. Mastee in Ohanceey, reference to, formerly before election for infant, 184. by married woman, 194. Index. 249- Metes and Bottnds, whether -widow entitled to have dower set out by, 68. freebench set out by, 68. MrNOBiTT not bound by election made by majority, 141. [And see Inpant.] Mistake, disposition of others' property by mistake may raise election,. 15. election made under, efiect of, 141. recital expressing, whether it raises election, 33 — 39. testator's, binding on beneficiaries where no case of election,. 35, 36. unless perhaps in clear m. of figures, 35. will made under, whether a bar to claim inconsistent with win, 40, 108, 109. MOSTGAGE, bequest of house subject to, and furnittu-e, 231. by person having to elect, eflect of, 140. gift of property is not gift of it free from m., 57. MOBTGAGEE, how affected by mortgagor's election against the property,. 176, 179. not readily held to be disposing of mortgagor's interest, 42.. " My," whether it makes gift specific, 48—51. "my funded property" — not specific, 48. " my shares in the N. 0. N." — specific, 50. "my present funded stock" — specific, 51. " my leaseholds," "my real estates" &o. — settled property does not pass, 52. qy., did gift of, imply gift free from dower, 69. "my house," gift of, by owner of part, is gift of whole, 53,54. " my property at L," gift of, by owner of part, is not gift of whole, 55. 250 Index. Need, to elect, no Talid election by acts witlioTit knowledge of, 119,. 123. ■what it includes, 119, 123. Next of kin trNDEE Statute, rights only got rid of by valid disposition to another, 109. Objects, appointment invalid because made to persons not, 82. how, if it might have been to, 86. OCCTJPATION, gift of right of, is disposition ■which may raise election, 31, 43. inconsistent ■with dower, 72. Onerous, gift, and beneficial, given together [see CONTENTS, Ch. XVn., pp. 228—231]. if separate, one may be taken and one refused, 228, 229.. ho^w if connected or parts of one gift, 230, 231. Pajrt, o^wner of, gift of property by, is gift of ■whole, 33 — 57. • even though described as "my" house or land, 53- a fortiori if not, 54. or if direction to keep buildings in repair, 55. but not if described as my " property," 55, 56. gift to one of an equal p. or share •with others, effect as to- election, 51, 70, 71. devise to ■widow of p. of property out of which dowable, 71. person taking only p. of what was meant for him must yet elect, 16. of an entire gift, dower excluded as to, is excluded as to whole, 75. Pahtial, interest, if testator has, ■will is rather to be read as disposing of that only, 41. question is one of intention on whole ■wiU, 42. Index. 251 Partitioning, power of, in trustees, inconsistent witli dower, 74. Perpetxtities, appointment void for infriaging rule against, 83—85. Portioning, power of, inappropriate to gift of reversion, 45. in trustees, inconsistent with dower, 74. JowEB, donee of general, by exercising it, makes property assets, 60. gift of property over wHcli another person has general, 60. to executors to sell freehold is disposition of it, 30. whether gift of testator's property includes what he had p. to appoint, 47. of leasing, inappropriate to gift of reversionary interest, 44. or jointuriug, 44, 45. or portioning, 45. of leasing, in trustees, inconsistent with dower, 72 — 74. management, 74. cutting timber, 74. jointuring, 74. portioning, 74. partitioning, 74. [^ni see.AlfPOlNTMENT.] Pbecaeiotjs gzft, enough to raise election, 16. Presttmption, against testator intending to dispose of what is not his own, 29. is this a question strictly of p. ? 224—227. cases of election distinguished from cases of, 226. evidence admissible to rebut or fortify a, 22 1 , 225. no p. of knowledge of equitable rule as to election, 4, 124. Peg non Sceipto, devise of land by infant was taken p. n. s., 94. win not duly attested, 95. married woman's will made without husband's consent, 97. invalid trust or direction added to valid appointment, 99—105. devise of unsurrendered copyholds, not taken ^. n. a., 97. ^52 Index. Pboof of will, not a binding election to take under it, 120, 134. rigHt, claim -witliout, insufficient knowledge for election, by acts, 123. Property refused by person electing, how it devolves, 158, 159. Proviso, express, raising election, 95, 101. added to appointment, 106. ■QiTEEif's Bench Division, action to compel election may be brought in, 4. EsnoN, * knowledge of existence of q. as to election, 126. preliminary to election. Court will determine, 11 Eeoitai,, whether erroneous, raises election, 31 — 39. cases for raising election, 33. against, 36. testator's, binding on beneficiaries where no case of election, 35, 36. unless, perhaps, clear mistake of figures, 35. Eecommendation may amount to disposition of another's property, 31. Eelease of right of election needs full knowledge, 149. Eemautder, after estate tail, election applies to, 17, 18. persons interested in, unaffected by election of tenant for life, 142. \_And, see Eeveesionary.] Eemote interest, gift of, enough to raise election, 16. Index. 253. Eent-chasge, gift of, to mdow, no bar to dower out of same property,, 69. gift of property is not gift of it free from rent-cliarge,. 57—59. even ■wtere devisor has no devisable interest, 58. Eents and Profits, beneficiary under -will may claim, of his own property received by testator, 108. effect of delay on right to account of, 148. surplus, gift of, after annuity to widow, 70. who takes, pending election by infant, 185. Eepresentattves, of person dying without electing can elect, 143. whether bound though person dying was not bound, 144. if person dying has elected by implication^ 145. \_And see Deritativt!.] Eesidttaet Legatee, cannot put claimant against estate to election, 108. can be put to election by benefit to his testator, 113. Eeveesionaey, while interest remains, right to put person to election not lost, 147. interest after death of A., owner of, devising to A., 44, 45. in personalty, married woman required to give up, 172. cannot always give up, 202. in combination with other property, 51. powers inappropriate to gift of, 44, 45. charge of annuity, inappropriate to gift of, 45. in D. lands passes under devise of aU the real estate testator has or should have at death, including the D. lands, 50. Eight, claim of, without means of proof, not enough for election by acts, 123. E. N 254 Index'. Eight — continued. doubtful, affecting question of election, Court •win deter- miae, 129. knowledge of, needed for election by acts, 119, 122. suspicion of, not enougb for election by acts, 122. to elect, survives to representatives, 143. EoMAif Law, election in, 6, n. Sate, devise of land in trust for, does not deprive of dower, 70. Satisfaction, distinguished from ademption, as to involving election, 78. election, as to admissibility of evidence,- 226, 227. election raised by gift in. s., 24, 77, 80. evidence admissible to rebut or support presumption of, 226. gift in s. of rigbt wHcb comes back to donee, no election, 109. as, of rights of beir, and there is partial intestacy, 109. or rights of widow and next of kin, 109. as to widow and heir in real property, 110. difference whether the intestacy is contemplated or accidental, 110. Scotch, law recognises election, 210. decisions on election, 211. land, will of, assimilated to wiU of unsurrendered copyhold,. 213. not affected unless specific reference, 214, 216. or nothing else to answer general words, 214. sufficiently referred to by "land in any part of the United Kingdom," 216. heritable bond, 215, 216. Separate Peopeett, under Married Women's Property Act, 1882 . . 190, 195. without power of anticipation, election where one interest is, 165, 180, 181, 203—205. after-acquired, can married woman elect as to ? 206, ,207. Index. 255 SETTLEMElfT, gilt of property subject to, may raise election, 60. including all settlor's property, no room for election, 61, 62. invalid, confirmed by mU, is as new bequest, 107. interest secured to husband by, can lie elect to give up ? 114. direction for, added to appointment, efieot of, 99 — 105. what, the appointee might probably make, 102 — 104. in substitution for will, is ademption and raises no election, 77. will in substitution for, is satisfaction and raises election, 78. compensation, not forfeiture, in election against s. as well as against will, 152, 153. taking benefit iu consideration of s. to be made, 75 — 77, 197—202. what is the consideration in marriage s., 76. incorporated into will by reference, 5. property in, sometimes passes under general words, 52. but not generally, 52. Shake of property. [See Paet.] Shahes, bequest of, whether general or specific, 48—51. in insolvent company, 229. liable to calls, 229. refusing legacy of, 229, 230. SntULTAHEOTJS, two s. documents treated as one, 5. Specipic Peopebty, election only raised by disposition of, 1, 14, 48—51. Statutes, 27 Hen. 8, c. 10 (Jointure), 193. 22 & 23 Chas. 2, c. 10 (Statute of Distributions), 109. 29 Chas. 2, c. 3 (Statute of Prauds), 96, 211. 36 Geo. 3, c. 52 (Legacy Duty), 181. 45 Geo. 3, c. 28 (Legacy Duty), 181. 55 Geo. 3, c. 192 (Copyhold), 64. 3 & 4 WiU. 4, c. 105 (Dower Act), 66, 110. 0. 106 (Inheritance Act), 18, 19. n2 256 Index. SxATTJTES — continued. 1 Vict. c. 26 (WiUs Act), 65, 66, 113. 16 & 17 Vict. c. 51 (Succession Duty Act), 183. 20 & 21 Vict, c. 57 (Malins' Act), 202. 36 & 37 Vict. 0. 66 (Judicature Act), 4. 44 & 45 Vict. c. 41 (Oonyeyanciug Act), 205. 45 & 46 Vict. c. 75 (Married Women's Property Act, 1882),. 99, 190, 206. Stattjtoet, formalities not supplied, to raise election, 97. Stock, bequest of, whether general or specific, 48 — 51. Stjbstittjtion', where gift in s. for another raises election, and ■where not, 77. Succession Dxttt, whether payable on property surrendered in compHanoe with will, 183. SuRPLxrs rents and profits, gift of, after annuity to widow, 70. Stjerendbb. [SeeCoPTHOU); Peeebench.] Suspicion of right, not knowledge enough for a binding elec- tion, 122. Tail, devise by tenant in, election raised by, 42. implied, 43. election by tenant in, whether binding on issue, 142. election applies to remainder after estate, 17, 18. Tenant. [See Life ; Tah, ; Common ; Joint.] TiMBEB, power in trustees to cut, inconsistent with dower, 74. Time, appointment void because out of, 82. or at wrong, 82. between will and death, whether it affects admission of evidence as to testator's property, 46, 47. from which receipts under document elected against must: be accounted for, 156. Index. 25T Time — cont inned. no limit of t. to right to elect, 146. unless injury to others and knowledge of right, 146. when too late to elect, 139, 140. lAnd see Delay.] long enjoyment under a document, not conclusive election if without necessary knowledge, 121. six years not conclusive, 127. ten years not conclusive, 122. fifteen, forty, years not conclusive, 130. Teust, superadded to appointment, 99 — 105. for sale, no bar to dower, 70. Tettstee, gift received by t. for A. and never reaching A. raises no election, 107. powers in, sundry, inconsistent with dower, 72 — 74. Two documents treated as one, 5. TJnboen Peesons, election in case of, 188. TJnsoxtnd Mtnd, election in case of person of, 188. VALtTE, interest of no, may raise election, 16. of teststtor's property, whether evidence of, admissible, 46 — 48.. property to be taken under document, if less than that against it, some evidence against raising election, 47. knowledge of the values of interests to be chosen between, 120—127. whether indispensable, 128. action to ascertain, 129. of compensation to be made, how determined, 154. VoLTJNTAEY DEEDS, application of rule of election to, 4. Waivee, none by act done with other design, 148. needs full knowledge, 149. of right to know values, 129. E. O 258 Index. Will, claims under a disputed and a later, 19. confirming invaKd settlement only operates as bequest, 107. incorporating a settlement by reference, 5. cbarge, by recital, 35. in substitution for deed is satisfaction and raises election, 78. deed in substitution for, is ademption and raises no election, 77. made inoperative by subsequent act of testator, no election,. 108. event, no election, 115. of infant, formerly good as to personalty, 95. unattested, formerly good as to personalty, 96. testator's recitals in, binding on the beneficiaries, 35, 36. unless perbaps clear mistake of fignires, 35. Wills Act (1 Vict. c. 26), 65, 66, 113. LONDON ; PEINTBD BY 0. F. EOVOETH, QEEAT NEW STEISET, E.O TELEGRAPHIC ADDRESS^ TELEPHONE— " RHODRONS, LONDON." No. 1386 (HOLBORN). OF LAW WORKS FTmLISHEB BT ST©Y®NS MB SONS, Ltd. 779 & 120, Chancery Lane, London. 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Chitty's Collection of Statutes relating to Criminal Law. — (Ke- printed from ' ' Chitty' s Statutes. ' ' ) With an Introduction and Index. By W. E. Ceaies, Esq., Barrister-at-Law. Eoyal 8vo. 1894. 10s. Disney and GundrVs Criminal Law. — A Sketch of its Principles and Practice. By Hbney W. Disney and HaeoM) Gundby, Esqrs., Barristers-at-Law. Demy 8vo. 1896. 7s. &d. ''We think we have here just what students want. The work is based upon a perfect knowledge of the statute law, and is compiled from the best and most recent authorities." — Law Times. Kershaw's Brief Aids to Criminal Law. — With Notes on the Pro- cedure and Evidence. By Hilton Kebshaw, Esq., Barrister-at- Law. Eoyal 12mo. 1897. 3«. Mews. — Vide "Digest." Roscoe's Digest of the Law of Evidence in Criminal Cases. — Twelfth Edition. By A. P. Peeoevai. Keep, Esq., Barrister-at- Law. DemySvo. 1898. II. lis. &d. "To the criminal lawyer it is his guide, philosopher and friend. "What Hoscoe says most judges vnil accept without question." — Laiw Times. Russell's Treatise on Crimes and Misdemeanors. — Sixth Edit. By Hobace Smith, Esq., Metropolitan Police Magistrate, and A. P. Pbecetal Keep, Esq. 3 vols. Eoy. 8vo. 1896. 61. 16s. 6rf. " No library can be said to be complete without the new edition of Eussell on Crimes." — Law Times. " Indispensable in every Court of criminal justice here and in our Colonies." —The Times. Shirley'sSketchofthe Criminal Law. — Second Edition. ByCHABXiB Stephen Huhtee, Esq., Barrister-at-Law. Demy 8vo. 1889. 7s. 6d. Warburton. — Vide " Leading Cases." Thring, — Vide "Navy." DEATH DUTIES.— Freeth's Acts relating to the New Death Duty, vrith an Introduction, A Digest, Copious Notes, and an Appendix containing the Estate Duty Forms, and the Rules. Second Edition. By Evelyn Eeeeth, Esq., Deputy-ControUer of Legacy and Succes- sion Duties. Demy 8vo. 1897, 12s. 6d. " The official position of the Author renders his opinion on questions of proce- dure of great value, and we think that this book will be found very us^ul to solicitors who have to prepare accounts for duty." — Solicitors' Journal. Harman's Finance Act, 1894, so far as it relates to the Death Duties. With an Introduction and Notes, and an Appendix of Forms. By J. E. Haeman, Esq., Barrister-at-Law. Eoyal 12mo. 1894. 6s. *,* All standard Law Wer/es are Icept in Stock, in law calf and other bindings. 119 & 120, OHANOERT LANE, LONDON, W.O. DEBENTURES AND DEBENTURE STOCK,— Palmer.— Fiffe " Conveyancing." DECISIONS OF SIR GEORGE J ESSEL— Peter's Analysis and Digest of the Decisions of Sir George Jessel ; -with. Notes, &o. By Apslet Peteb Petek, Solicitor. Demy 8vo. 1883. 16». DIARY.— Lawyers' Companion (The) and Diary, and London and Provincial Law Directory for 1900.— For the use of the Legal Profession, Public Companies, .Tustioes, Merchants, Estate Agents, Auctioneers, &o., &o. Edited by Edwin Latmajt, Esq., Barrister-at- Law ; and contains Tables of Costs in the High Court of Judicature and County Court, &c. ; Monthly Diary of County, Local G-ovemment, and Parish Business ; Oaths in Supreme Court ; Summary of Sta- tutes of 1899 ; Alphabetical Index to the Practical Statutes since 1820 ; Schedule of Stajnp Duties ; Legal Time, Interest, Discount, Income, Wages and other Tables ; the New Death Duties ; and a variety of matters of practical utility : together with a complete List of the English Bar, and London and Country Solicitors, with date of admission and appointments. Published aVwt tatt. t. Fifty-fourth Issue. 1900. Issued in the following forms, octavo size, strongly bound in cloth : — 1. Two days on a page, plain . . . ■ . ,. . 6s.Qd. 2. The above, inteei.eaved with plain paper or blotting paper . 7 3. Two days on a page, ruled, wifii or without money columns . 5 6 4. The above, with money columns, utteeleavbd with plain paper or blotting paper 8 6. Whole page for each day, plain . . . . . .76 6. The above, imtkrt.waved with plain paper or blotting paper . 9 6 7. Whole page for each day, ruled, vrith or without money columns 8 6 8. The above, isteeleaved with plain paper or blotting paper 10 6 9. Three days on a page, ruled blue lines, without money columns . 3 6 10. The above, intekleaved with blotting paper . . . .46 The Diary contains memoranda of Legal Btisiness, throughout the Tear, with an Index for ready reference. 1^" The Diary can be obtained interleaved with, blotting paper. " The amount of information packed within the covers of this well-known book of reference is almost incredible. Ija addition to the Diary, it contains nearly 800 pages of closely printed matter, none of which could he omitted without, perhaps, detracting from the nsefnlness of the book. The publishers seem to have made it their aim to include in the Companion every item of information which the most exacting lawyer conld reasonably expect to find in its pages, and it may safely be said that no practising solicitor, who has experienced the luxury of having it at his elbow, will ever be likely to try to do without it."— Law JovTTud. DICTIONARY. — The Pocket Law Lexicon. — Explaining Technical Words, Phrases and Maxims of the English, Scotch and Eoman Law, to which is added a complete List of Law Reports, with their Abbre- viationa. Third Edit. By Henby G. Eawson and James F. Eemnant, Esqrs., Barristers-at-Law. Fcap. 8vo. 1893. 6«. 6*-*-/- --- »- "• 9 '■ STEVENS AOT) SONS, Ld., 119 & 120, CHANCERY LANE, London. RULING CASES: AJREANGED, ANNOTATED, AND EDITED BY ROBERT CAMPBELL, M.A„ Of Lincoln's Inn, Barrister -at- Law, Advocate of the Scotch Bar, ASSISTED BY OTHEB MEMBBES OF THE BAR. WITH AMERICAN NOTES By Irves'g Baowira and The Hon. Leonard A. Jones. To be completed in Twenty-five Volumes. The following Volumes [sold separately) have been puhllhhed : — Vol. I. — Abandomneut— Action. U. — Action — Amendment. I ' I — Ancient Light — Banker. IV. — Bankruptcy — Bill of Lading, v.— Bill of Sale— Conflict of Laws. VI. —Contract. VH. — Conversion — Counsel. V I H — Criminal Law — Deed. IX. — Defamation — Dramatic and Musical Copyright. Vol. X. — Easement— Estate. XI. — Estoppel — Execution. XTT. — ^Executor — Indemnity. Xm. — Infant — Insurance. XIV. — Insurance — Interpretation. XV. — Judge — Landlord and Tenant. XVI. — Larceny — Mandate. XVH. — Manorial Right — Mistake. XVm. — Mortgage — Negligence. XIX. — Negligence — Partnership. Vol. XX.— Patent. Vol. XXL— Payment— Purchase for Value without Notice. l^Nearly ready.) (in the Press.) Vol. XXH. — ftuo Warranto — River. {In preparation.) Royal 8vo, half vellum, gilt top, price each, net, 25s. INDEX to Vols. L to X. With ADDENDA from 1894 to 1896 inclusive. 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