The effect of partial or imperfect descriptions, however, has often come under consideration. In Hunt v. Hort (u), where the bequest was to Lady Lord Thurlow considered it

Partial blanks sup

plied.

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as equivalent to a total blank, and, therefore, that the name could not be supplied by parol evidence. But in Abbot v. Massie (x), where the bequest was to Mr. and Mrs. G., Lord Loughborough directed an inquiry as to who Mrs. G. was. Of course,

Evidence sometimes admissible, though immaterial.

if there had been more than one person answering to the imperfect description in the will, and the evidence had failed to point out which of them was the intended object of the testator's bounty, the bequest would, in both the preceding cases, have been void for uncertainty. [At the conclusion of his judgment in Blundell v. Gladstone, the V.-C. said he decided the case upon the words of the will, coupled with that evidence only which had been given as to the state of the Weld family at the date of the will, and which he thought was the only part of the evidence which ought to be received (y). But besides that evidence there was parol evidence (z) of the testator having, both before and after making his will, and even after correction of his mistake, repeatedly called the possessor of Lulworth by the name of Edward Weld. This evidence had been received in the Master's office, and in delivering the opinion of the judges in D. P. (where the suit was carried), Parke, B., said, they thought it was rightly received (a). Hence it is to be inferred that evidence (to which, upon the principles discussed in this chapter, there is per se no objection) of facts connected with the case, and which may by possibility influence the construction of the will, is admissible, although ultimately it is found to be immaterial and has to be excluded from consideration (b).]

(a) 1 H. L. Ca. 778, nom. Camoys v. Blundell.

(z) Ib. 470.

(b) See also Lowe v. Lord Huntingtower, 4 Russ. 532, n.; Sayer v. Sayer, 7 Hare, 381, Wigr. Wills, pl. 103.]

pp. 1153, 1154. It was remarked, in a general way, by Parker, C. J., in Brown v. Gilman, 13 Mass. 158, that, where a contract has been reduced to writing, and the name of the

462

contracting party has been omitted, the omission may be supplied by extrinsic evidence. See also, Penniman v. Barremore, 18 Mart. 497; Lynn v. Risberg, 2 Dall. 180.

THE doctrine of election1 may be thus stated: That he who accepts a benefit under a deed or will, must adopt the whole con- Doctrine of tents of the instrument, conforming to all its provisions, and election, renouncing every right inconsistent with it. If, therefore,

a testator has affected to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him must make good the testator's attempted disposition; but if, on the contrary, he choose to enforce his proprietary rights against the testator's disposition, equity will sequester the property given to him, for the purpose

of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights.

Thus where (a) A. seised of two acres, one in fee, and the other in tail, and having two sons, by his will devised the fee-simple acre to his eldest son, who was issue in tail, and the entailed acre to his youngest son, and died. The eldest son entered upon the entailed acre, whereupon the younger son brought his bill against his brother, that he might enjoy the entailed acre devised to him, or else have an equivalent out of the fee acre; because his father plainly designed something for him. Lord Cowper said, "The devise of the fee acre to the elder must be understood to be upon the 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 he decreed the same accordingly. [This case is the more remarkable, as showing the length to which the doctrine of election has been carried; because the elder son was actually entitled to both acres by his better title as general or special heir, and took nothing under the will. Yet the mere intention to give him property by the will was held sufficient to put him to his election (b).]

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But a devisee or legatee is not precluded from claiming derivatively, through another, property which such other person has taken tend to deriv- in opposition to the will. Thus, a man may be tenant by

Does ex

ative claims. the courtesy, in respect of an estate of inheritance taken by

his wife in opposition to a will under which he has accepted benefits, without affecting his title to those benefits (c). [For, compensation having once been made by the wife (d) cannot be exacted a second time. And a devisee or legatee who claims derivatively through another, to whom the will gave nothing, is equally free; for whether the true owner took subject to an obligation which he has discharged, or subject to no obligation whatever, can make no difference: thus one co-heiress electing to take under a will, may retain a share which since the testator's death has descended to her from a deceased co-heiress although bound to give up her own original share (e).1

(a) Anon., Gilb. Cas. Eq. 15; see also Pre. Ch. 351; Belt's Suppl. to Ves. 250; 1 Ves. 234; 1 B. P. C. Toml. 300; 3 B. P. C. Toml. 167; Amb. 388, 1 Ed. 532; 3 B. C. C. 316; 4 B. C. C. 21; S. C. 1 Ves. Jr. 514; 4 B. C. C. 38; 1 Ves. Jr. 534; 2 Ves. Jr. 367; ib. 693; ib. 544; 3 Ves. 191; ib. 384; 5, Ves. 515; 9 Ves. 369; 13 Ves. 224; 1 Dow, 249; 2 V. & B. 187; 2 Mer. 86; 1 Sw. 359; ib. 409; [3 Russ. 278; 4 Y. & C. 18; 2 Drew. 93.] Where several are disappointed the sequestered property is divided among them in proportion to the value of the interests of which they are disappointed. Howells v. Jenkins, 1 D. J. & S. 617. If the property which the testator affects to dispose of belongs to several, as tenant for life and remainder-man (Ward v. Baugh, 4 Ves. 623), or as tenants in common (Fytche v. Fytche, L. R. 7 Eq. 494), each has a separate right of election.

[(b) See Schroder v. Schroder, Kay, 584-586. But 9 Pri. 573, Richards, C. B., dub.] (c) Lady Cavan v. Pulteney, 2 Ves. Jr. 544, 3 Ves. 384.

[(d) 2 Ves. Jr. 555.

(e) Wilson v. Wilson, 1 De G. & S. 152. And see Howells v. Jenkins, 2 J. & H. 706; Grissell v. Swinhoe, L. R. 7 Eq. 291. But see per Lord Moncreiff, L. R. 7 H. L. 79.

1 See Carder v. Fayette Co., 16 Ohio St. 353; Bowen v. Bowen, 34 Ohio St. 164; Crostwaight v. Hutchinson, 2 Bibb, 408.

[contingent as to

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Does apply to eontingent

and reversionary in

It must however be understood that the obligation attaches on whoever at the testator's death is true owner of the property wrongfully disposed of, and to whom also a benefit is given by the will. This is the point of time to be regarded. And it matters not from whom, or by what previous acts or devolutions, such owner's title was derived (ƒ). Where the obligation to elect has once attached, the property which is taken under the will as bounty, however and whenever it may devolve, continues liable until compensation is duly made (g).] The doctrine of election clearly applies as well to vested rights (h); to the interest of next of kin in the *unascertained residue of an intestate's personal estate (i); and to] reversionary and remote as well as to immediate interests (k).1 Lord Hardwicke, indeed, at one time seems to have thought that it did not extend to a remainder expectant on an estate tail (7); but the notion stands upon no intelligible principle, and is inconsistent with his own decision in Graves v. Forman (m), in which he would not allow an heir at law to whom an estate for life in remainder after an estate tail was devised, to take it without giving up a copyhold disposed of to another, but upon which the will could not (in the then state of the law) operate, for want of a previous surrender. The heir it seems (strangely enough) elected to take the estate for life in remainder, and eventually got nothing; the tenant in tail having acquired the fee-simple by suffering a common recovery.

terests.

tator is ac-
quainted
with his want

It is immaterial in regard to the doctrine of election, whether the testator, in disposing of that which is not his own, is aware Immaterial of his want of title, or proceeds on the erroneous supposition whether testhat he is exercising a power of disposition which belongs to him; 2 in either case, whoever claims in opposition to the will, must relinquish what the will gives him (n). This seems to result from the impossibility of knowing with certainty that the testator would not have made the disposition, had he been accurately acquainted with the title; and (as a great judge has observed),

(f) Cooper v. Cooper, L. R. 6 Ch. 15, 7 H. L. 53.

of title.

(9) Fytche . Fytche, 19 L. T. N. S. 343; Pickersgill v. Rodger, 5 Ch. D. 163. Where the person to elect is dead without electing, and his own property and that taken under the will go different ways, the latter is (as between the two) primarily liable, ib. But the disappointed legatees may recover to the extent of the latter against his general estate. Rogers v. Jones, 3 Ch. D. 688.

(h) Per Lord Loughborough, 2 Ves. Jr. 696, 697.

(i) Cooper v. Cooper, L. R. 6 Ch. 15, 7 H. L. 53. How the value of such an interest is to be ascertained, see S. C. 7 H. L. 68.]

(k) Webb v. Earl of Shaftesbury, 7 Ves. 480; Wilson v. Lord John Townshend, 2 Ves. Jr. 697.

(1) Bor v. Bor, 3 B. P. C. Toml. 178, n.

(m) Cited 3 Ves. 67; [see Mahon v. Morgan, 6 Ir. Jur. 173.]

(n) Whistler v. Webster, 2 Ves. Jr. 370; Thellusson v. Woodford, 13 Ves. Jr. 221; Welby v. Welby, 2 V. & B. 199, overruling Cull v. Showell, Amb. 727, unless decided on the ground of the great lapse of time, which seems probable.

1 2 Story, Eq. Jur. § 1095.

2 2 Story, Eq. Jur. § 1093. See Swanston's note to Dillon v. Parker, 1 Swanst. 407.

"nothing can be more dangerous than to speculate upon what he would have done, if he had known one thing or another” (o).

doctrine is

compensa

feiture.

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*

1

A question which has been much discussed is, whether the principle Principle of governing cases of election under a will is forfeiture or compensation; or, to speak more explicitly, whether a person tion, not for- claiming against a will is bound to relinquish the benefit thereby given to him in toto, or only to the extent of indemnifying the persons disappointed by his election. The strong current of the authorities, particularly those of a recent date, is in favor of the principle of compensation (p); interrupted, certainly, by some dicta (q), [and by an express decision of Lord Langdale (r),] in favor of the doctrine of forfeiture. In Green v. Green (s), Lord Eldon is generally supposed to have used expressions indicating a similar opinion. But he expressly admits the cases to have decided that the party electing against a will was not bound to give up more than was enough to make satisfaction for that which was intended for another; and when he states the contrary doctrine, it is with reference to the case before him, which arose upon a deed, “in which," he observed, “as it is a contract, it is very difficult to say that compensation only is to be made "(t). The doctrine of compensation

(0) See Sir R. P. Arden's judgment in Whistler v. Webster, 2 Ves. Jr. 370.

(P) Webster v. Mitford, 2 Eq. Ca. Ab. 363, stated from Reg. Lib. 1 Sw. 449; Bor v. Bor, 3 B. P. C. Toml. 167; Ardesoife v. Bennett, 2 Dick. 463; Lewis v. King, 2 B. C. C. 600; Freke v. Lord Barrington, 3 B. C. C. 284; Blake v. Bunbury, 1 Ves. Jr. 523; Whistler v. Webster, 2 Ves. Jr. 372; Lady Cavan v. Pulteney, 2 Ves. Jr. 560; Ward v. Baugh, 4 Ves. 627; Dashwood e. Peyton, 18 Ves. 49; Welby v. Welby, 2 V. & B. 190; (see these cases stated Gretton v. Haward, 1 Sw. 433 n ;) [Tibbitts v. Tibbitts, Jac. 317.]

(q) Cowper v. Scott, 3 P. W. 119; Cookes v. Hellier, 1 Ves. 235; Morris v. Burroughs, 1 Atk. 404; Villareal v. Lord Galway, 1 B. C. C. 292, n.; Wilson v. Townshend, 2 Ves. Jr. 697; Wilson v. Mount, 3 Ves. 194; Broome v. Monck, 10 Ves. 609; Thellusson v. Woodford, 13 Ves. 220.

[(r) Greenwood v. Penny, 12 Beav. 406.] (s) 2 Mer. 86.

1 See this point discussed, 2 Story, Eq. Jur. 1085, and notes; Jennings v. Jennings, 21 Ohio St. 81; Sandoe's Appeal, 65 Penn. St. 314. It is said by Mr. Justice Story that the fair result of the modern leading decisions is, that in such a case there is not an absolute forfeiture, but there is a duty of compensation (at least where the case admits of compensation) or its equivalent; and that the surplus, after such compensation, does not devolve upon the heir as a residuum undisposed of by the will, but belongs to the donee; the purpose being satisfied, for which alone courts of equity will control his legal right. Ib. § 1085. The operation of this principle of compensation (apart from statute) is generally thus worked out: In the event of an election to take against the will, equity assumes jurisdiction to sequester the benefit intended for the refusing donee by way of taking the rents, profits, and issues, in order to insure proper compensation to him whom such election disappoints. The surplus, if any, above the value of the property owned by the electing donee, after compensation, does not devolve upon the representative of

(t) 19 Ves. 668.

the testator as undisposed of, but is restored to the donee, the purpose being satisfied for which alone the court controlled the legal right. Gretton v. Haward, 1 Swanst. 409; Sandoe's Appeal, 65 Penn. St. 314. And the disappointed donee can never get more than the value of the interest intended for him. But if the estate devised to the electing donee is obviously less valuable than that owned by him, equity will decree a conveyance of the estate devised to the first donee, or permit the second donee to recover it in ejectment. Lewis v. Lewis, 13 Penn St. 79. It should be added that this doctrine of election is never applied except where, if an election is made contrary to the will, the interest that would pass from the testator by the will can be laid hold of in equity to compensate the disappointed donee. Some free disposable property must be given to the electing donee which can become compensation for what the testator endeavored to take away. Bristow v. Warde, 2 Ves. Jr. 336; Box v. Barrett, L. R. 3 Eq. 244.