T. 2, CH. 3. of a partner. ship. failure of the trusts goes to the next of kin as real PART IV. estate (a). 3436. Whenever a trade partnership purchase real estate for Real estate the partnership purposes, and with the partnership funds, it is, as between the real and personal representatives of the partners, personal estate. But where the land, and not the trade, is the principal object, and the trade is merely ancillary to the beneficial enjoyment of the land, or a part of it, the doctrine will not apply; so that, if one of the co-owners dies intestate, his share in the land will pass to his heir, and not to his legal personal representative (b). 3437. (a) Curteis v. Wormald, L. R. 10 Ch. D. 172. (b) Darby v. Darby, 3 Drewry 495, 506; Steward v. Blakeway, L. 1380 T. 2, CH. 4. CHAPTER IV. OF ELECTION. PART IV. ELECTION is the choosing between two rights, by a person who derives one of them under an instrument in which a clear intention appears that he should not enjoy both. 3438. Definition. Principle of election. Where elec tion arises in equity. The principle of election is, that no one shall claim under and in opposition to the same instrument. There is a tacit condition annexed to all provisions of this nature, that the person taking do not disturb the disposition which his benefactor has made (a). 3439. Election arises in equity in cases where a grantor, or more commonly, a testator, gives away, either knowingly or by mistake, that in which he has no interest, or the whole of that in which another person besides himself has an interest, and in the same instrument makes a gift to the owner of the property so given away, or to the person entitled to such interest. In such cases the owner of such property, or the person entitled to such interest, cannot both take the gift and retain his own property or interest; but if he takes the gift, he must resign his own property or interest. On the other hand, if he elects to hold his own property or interest, or, as the phrase is, if he elects against the instrument, he cannot have the gift; or at least he cannot have the entire gift without compensating the person whom he has disappointed by electing to take his own property. In such cases, equity, in not suffering the disposition by which the gift is made (a) 2 Sugd. Pow. 144-5. PART IV. to enure to the benefit of the person so electing against the instrument, will not render that disposition inoperative, but will make it the means of effectuating that intention of the author of the instrument which such person has frustrated by so electing to retain his own property or interest: for, equity will treat the gift, or at least a part of it, as a trust in the donee or devisee, the person so electing, for the benefit of the party disappointed by such person's refusing to give up his own property or interest(a). Indeed, the doctrine of election can never be applied where an election is made contrary to the instrument, unless the interest that would pass by it is of that freely disposable nature, that it can be laid hold of to compensate the party who suffers by the exercise of such election against the instrument. Thus, where there is a fund Election by subject to the appointment of a father amongst his children, pointee. and the father appoints a part to some of his children and the other part to persons not objects of the power, any child who is an appointee may both take his appointed share, and also claim his share of the improperly appointed portion, as in default of appointment. But if there is a power to appoint to two, and the donee of the power appoints to one only, and gives a legacy to the other, he cannot claim the legacy and also dispute the validity of the appointment (6). So where a man, having a power to (a) See Story's Eq. Jur. § 1077, note, 1081-1084, 1086, 1088, 1089, 1093; 2 Spence's Eq. Jur. 586, 587, 588, 601-604; 2 Sugd. Pow. 155; 1 Jarm. Wills, 2nd ed. 371-3; Swan v. Holmes, 19 Beav. 471; Wintour v. Clifton, 21 Beav. 447; 8 D. M. & G. 641; Stephens v. Stephens, 3 Drewry 697; Asticke v. Peters, 4 K. & J.437; Grosvenor v. Durston, 25 Beav. 97; Fitzsimons v. Fitzsimons, 28 Beav. 417; Honywood v. Forster (No. 2), 30 Beav. 14; Howellsv.Jenkins, 2 Johns. & Hem. 706; Whitley v. Whitley, 31 Beav. (b) 2 Spence's Eq. Jur. 590; 2 an ap PART IV. Words not creating a case of election. T. 2, CH. 4. appoint to A. a fund which in default of appointment is to be given to B., exercises the power in favour of C., and gives other benefits to B., although the execution is merely void, yet if B. will accept the gifts to him, he must convey the estate to C. according to the appointment. Again, where a father authorized his wife to execute a power vested in himself, and gave the objects of the power other benefits, although the father could not delegate the power, yet it was held, that any person who should defeat what the mother had done by what was in truth no power, should have no benefit under the father's will (a). But words of mere desire, expectation, or wish, do not create a case of election (6). And hence, where a testator bequeaths his own property to persons who are objects of a power, and also appoints to them the fund over which he has the power of appointment, in terms which per se would give the absolute interest, but then adds a request that they would leave the appointed fund to their children, who are not objects of the power, the precatory words do not create a case of election either to accept a limited appointment, leaving the remainder for their children, or else to relinquish the legacies, but the words relating to the appointed fund amount to an absolute appointment to the objects of the power, with a condition inconsistent with the power, which is simply void; and therefore they are entitled to both funds (c). 3440. Primâ facie, it is not to be supposed, nor must it be proved by extrinsic evidence, that a testator disposes of that which is not his own, so as to raise a case of election. It must appear on the will itself, by plain demonstration or by necessary implication (d). 3441. (a) 2 Sugd. Pow. 148-9. (b) Langslow v. Langslow, 21 Beav. 552. (c) Blacket v. Lamb, 14 Beav. 482. (d) 2 Sp. Eq. Jur. 592, 593, 595; Wintour v. Clifton, 21 Beav. 447; 8 D. M. & G. 641; Miller v. Thurgood, 33 Beav. 496. T. 2, CH. 4. No election between same will. Where persons are named as residuary appointees, and PART IV, also as legatees, in the same will, they are not obliged to elect between the residuary appointment and their lega- gifts under cies, so as to give up their residuary appointment or their legacies, in order to give effect to, or compensate the persons claiming under, a particular appointment void for remoteness; for they claim each gift under the will itself, and neither of them is dehors the will or adverse to it (a). The doctrine of election applies even where, in a will Application not within the Wills Act (1 Vict. c. 26), a devise of an estate is made to the testator's heir, and the heir, according to the old rule, takes such estate by descent, and not by purchase, and, by the same will, the testator devises to another person an estate belonging to the heir, over which the testator has no disposing power (b). 3443. 3442. The same doctrine of election also applies in cases where it was apparently a testator's intention to dispose of all' the property he might have at the time of his death, and the heir, who is a devisee under the will, claims property which was purchased subsequently to the will, and which, consequently, under the old law, did not pass by the will, but was intended to pass to another person under the general words of the will (c). But where a will, made. before the year 1838, is void as a devise of land, either from the incapacity of the devisor or from its not being duly 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 (d). of the doctrine to an heir at law. |