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27. A. having two daughters, B. and C., devised Noys v. lands whereof he was tenant in fee simple to B., and Mordaunt, ,

2 Vern. 581. lands of which he was only tenant in tail to C. It was held, that if B. claimed a share of the entailed lands, she must relinquish her claim to the fee simple Bor v. Bor, lands devised to her : for the testator having disposed 3. Bro. Parl.

Ca. 167. of his whole estate amongst his children, what he gave Doe v.Caventhem was upon an implied condition, that they should dish, 4 Term

Rep. 741. release to each other.

28. A person, by articles previous to his marriage, Streatfield v. agreed to settle lands to the use of himself and his Streatfield,

Forrest, 176. wife for their lives, with remainder to the use of the heirs of their bodies. He afterwards made a settle. ment, which was not pursuant to the articles ; and on the marriage of his son, settled other lands on him in the usual manner, and levied a fine of the lands comprised in the articles, to the use of himself in fee. By his will he devised part of those lands to his daughters, and the rest of his estates to his grandson. Lord Talbot held, that the grandson, being entitled to the lands comprised in the articles, should be put to his election, whether he would take under the will, or the articles.

29. Where a will is void, as a devise of land, either from the incapacity of the devisor, or from its not being properly executed, and is good as to personal estate ; the heir may take a legacy under it without relinquishing his right by descent; because, as to the land, there is in fact no disposition of it, and consequently no election.

30. In the case of Hearle v. Greenbank, the Tit. 32. c. 13. daughter, by a will made when she was only nineteen , 32. years old, gave a legacy to her heir at law, and disposed of the real estate to another person; the question was, whether, as the will was void as to the land, and good

as to the legacy, the heir should have the land, and also the legacy, or be obliged to make his election.

Lord Hardwicke declared his opinion, that the heir was not obliged to make his election, for the will was void ; and when the obligation arose from the insufficiency of the execution, or invalidity of the will, there was no case where the legatee was obliged to make an election, for there was no will of the land. A man devises a legacy to his heir at law, and his land to another; the will is not well executed according to the statute of frauds for the real estate; the court would not oblige the heir at law, upon accepting the legacy, to give up the land.

31. But where the heir becomes entitled to a real

estate by descent, in consequence of its having been infra, c. 3.

purchased after the execution of his father's will, by which interests are bequeathed to him, he cannot

take both, but must make his election. Thelusson v. 32. P. Thelusson devised several real estates to Woodford, 13Vesey,209. trustees, upon trust to accumulate the rents to a

certain period ; and directed, that in case he should enter into any contracts for the purchase of lands, and die before the conveyance thereof, such contracts should be carried into execution, and the conveyance be to his trustees, upon the trusts of his will. He also devised certain interests to his son. After the execution of this will, the testator contracted for the purchase of some real estates, and died without republishing his will. The heir claimed the lands contracted for, and also the interests given him by the will.

Lord Erskine.—“The prayer of the bill filed by the heir at law, with reference to this point, is, in effect, that the personal estate of the testator shall be applied to the completion of these contracts, directed by the will to be carried into execution for the benefit of the heir ; and that he, in opposition to the will, may take as heir those estates so contracted for; and the trustees may stand seised to his use, instead of the uses of the will. I give the judgement which I find myself bound to give with some reluctance, considering this will as dictated by feelings not altogether Vide infra,

c. 20. consistent with convenience. But this appears to me to be a case of election. The jurisdiction exercised by this Court, compelling election, may be thus described А person shall not claim an interest under an instrument, without giving full effect to that instrument, as far as he can. If therefore a testator, intending to dispose of his property, and making all his arrangements under the impression that he has the power to dispose of all that is the subject of his will, mixes in his disposition property that belongs to another person, or property as to which another person has a right to defeat his disposition, giving to that person an interest by his will; that person shall not be

permitted to defeat the disposition where it is in his power, and yet take under the will : the reason is the implied condition that he shall not take both; and the consequence fóllows, that there must be an election : for though the mistake of the testator cannot affect the property of another person, yet that person

shall not take the testator's property, unless in the manner intended by the testator.

“ This is the proposition. But it has been said, that when a testator by his will attempts to give that which is not his property, but which he supposes to be his, forming his different dispositions upon that mistake, non constat what he would have done, had he been aware of the true state of the circumstances. The best answer to that was given by Lord Alvanley

2 Ves. Jun. in the case of Whistler v. Webster-That no man 367.

shall claim any benefit under a will, without conforming, as far as he is able, and giving effect to every thing contained in it, whereby any disposition is made, showing an intention that such a thing shall take place ; without reference to the circumstances, whether the testator had any knowledge of the extent of his power, or not. Nothing can be more dangerous than to speculate upon what he would have done, if he had known one thing or another. It is enough to say he had such intention; and the Court will not speculate upon what he would have done in the different cases put. If the instrument is such as to indicate what the intention was, the only question is, did he intend the property to go in such a manner; not whether he had power to do so, and would have done it, had he known he could not, without a condition imposed upon another person. Whether he thought he had the right; or, knowing the extent of his authority, intended by an arbitrary execution of power to exceed it; no person taking under the will shall disappoint it.

“ In every case of election there must be an intention to dispose of that, over which that person has no power of disposition ; that is the circumstance that creates election. The testator, with this peculiar object, the application of his personal estate to the acquisition of great landed property, was not aware of the distinction between real and personal estate; and therefore conceived, that, under this direction of his will as to his future contracts for purchases, his trustees would be legally seised according to the uses of his will. As he had not the power to make that disposition, the heir takes those estates that cannot pass by the will

but the testator, not being aware of that, gives con. siderable interests to his heir ; but gives those interests under the conception that the whole property and arrangement were subject to his control; and upon that ground the principle of election must prevail.

" In Noys v. Mordaunt the testator imagined he had ante, ș 27. power over the estate which was in settlement, and the Lord Keeper put the decision upon the implied condition. That case was followed by Streatfield v. ante, $ 28. Streatfield, and several cases down to Sheddon v. 8 Ves. 481. Goodrich. The difficulty upon a plain simple principle occurred in the case of Hearle v. Greenbank. ante, $ 30. But I do not apprehend that this case will be embarrassed by that decision. Lord Hardwicke held that the act of the infant had no effect; that there was no disposition as to the real estate; and therefore a case of election did not arise.

“ This is the case of a man having a clear right to dispose by will, both of his real and personal estate, but his disposition fails as to these real estates, by his ignorance of the distinction, that a will of a subsequent date was necessary. There is therefore, as in the case of Hearle v. Greenbank, no will that can touch these real estates. As to the case of a devise with two witnesses only, the intention is as plain as in Noys v. Mordaunt: why then should not the Court

say

in the former case, the intention is clear, but cannot as to the real estate have legal effect, from the omission of a third witness by mistake: as in the other case, the devisor attempts, through mistake, to devise an estate which is in settlement, or belongs to another

person. The opinion of Lord Hardwicke I take to be this; a devise of real estate is considered as a matter of so much solemnity and importance, that the law will not accept proof of the act, without

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