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Following trust property.

to be paid under the covenant at some fixed period within a year while the share which is taken under the intestacy is not in strictnoss payable until a year has elapsed after the death of the person liable, does not rebut the presumption of satisfaction (1).

A class of cases which is sometimes confounded with the doctrine of performance, but which differs essentially from it is that which arises when a cestui que trust follows trust property which has been converted into property of some other description (2).

(1) Lee v. D'Aranda, 1 Ves. Sen. 1, and other cases referred to; Williams on Executors, 8th ed. p. 1498, et seq.

(2) See Trench v. Harrison, 17

Simons, 111, and as to following trust property: Re Hallett. Knatchbull v. Hallett, 13 Ch. D. 696, ante, p. 531.




election arises.

Election arises, to borrow Lord Eldon's language, where a When donor gives what does not belong to him, but does belong to some other person, and gives that person some estate of his own. The donee whose property has been taken is then "put to his election " either to part with his own property, or if he prefers to take the gift to make compensation out of it to the disappointed party (1).

There is an implied condition that he who accepts a benefit under an instrument must adopt the whole of it, conforming with all its provisions, and renouncing every right inconsistent with them (2).

The donee, when the intention of the donor is plain that he should not enjoy both benefits, cannot in fact blow hot and cold. He cannot, as was stated in a recent judgment of the Court of Appeal, be allowed to "approbate and reprobate," but if he approbates he must do all in his power to confirm the instrument which he approbates (3). He cannot take both under and against the instrument-he must "elect."

The following illustration, which is substantially the same as that given by Lord Chancellor Cowper (4), adapted to the language of modern times, may serve to make plain to the reader the general notion of what election is.

A testator, who is owner in fee of an estate in Surrey, and entitled to an estate tail in a farm in Middlesex, devises the Surrey farm to his eldest son and the Middlesex farm to the younger, and dies. The eldest son claims both gifts, the Surrey farm as devisee, and the Middlesex farm (which his father had no legal power to devise away from him) as heir in tail. Thereupon the Court says: No, you shall make your 'election' to claim either under or against your father's will. You shall not at the same time that you accept the Surrey farm as devisee


(1) Broome v. Monck, 10 Ves. 609. (2) Streatfield v. Streatfield, 1 W. & T. leading cases.

(3) In re Lord Chesham. Cavendish

v. Dacre, 31 Ch. D. 466.

() Quoted in Haynes' Outlines of Equity, p. 260, 5th edition.

Summary of doctrine of election.

deprive your younger brother of the Middlesex farm by setting up your paramount title as issue in tail."

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The general doctrine of election was well summed up by the late Master of the Rolls, Sir George Jessel, as follows: "Any disappointed legatee, or devisee, is entitled to say, 'You shall not take the benefit given to your estate by the will unless I have made up to me an equivalent benefit to that which the testator intended me to take.' Sometimes this is called the doctrine of compensation, which is the meaning of the doctrine of election as it now stands. The disappointed legatée or devisee may say to the other party, You are not allowed by a Court of Equity to take away out of the testatrix's estate that which you would otherwise be entitled to, until you have made good to me the benefit she intended for me.' That means that no one can take the property which is claimed under the will without making good the amount; or, in other words, as between devisees and legatees claiming under the will, the disappointed legatees are entitled to sequester or to keep back from the other devisees or legatees the property so devised and bequeathed until compensation is made. Thence arises the doctrine of an equitable charge or right to realize out of that property the sum required to make the compensation" (1). To this may be added from the same judgment:"The. presumption, in the absence of evidence 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 those who contend against the legatees. On the other hand, it is only a presumption which may be rebutted even by parol evidence; and it may be rebutted by evidence shewing that, under a misapprehension of law, the testator believed that the property which did not belong to him did really belong to him."

The doctrine of election applies to property of every kind, and to interests of every description (2).

The general case in which it arises is with regard to wills, but it has also been held to apply to voluntary deeds, &c. (3). It applies to the exercise of powers of appointment (ante, p. 175 (*)).

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The law on this subject was summed up in 1886 as follows:

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of doctrine of election.

"When a person purports under a power of appointment to give Summary who are property which is the subject of the power to persons not objects of the power, that is to say, in fact, to exercise a power which he has not got; if to the person who would be defeated by that gift free disposable property belonging to the testator is given by the same instrument that raises a case of election." "When a person, coming to claim under an instrument, says, if it be a will pay me the legacy,' or 'hand over to me the particular property given to me by that instrument,' the executors have the right to say You must conform to all the provisions of the instrument.' And if the instrument also disposes, or purports to dispose, of property which belongs by paramount title to the person claiming under it, a case of election arises, and he cannot take under it the benefit which it gives him, unless he is prepared to fulfil the gift which it purports to make of his own property. In short, the rule may be stated in this form, that no one can take under and against the same instrument, but taking under it is bound to fulfil all its provisions" (1).


This principle may be illustrated by a case decided a few Illustrayears ago. A testator, who had power under a settlement to appoint certain settled hereditaments in favour of children of his first marriage only, appointed the settled hereditaments (which he described as his own property) in favour of a son of the first marriage, but subject to a charge in favour of his other children, including the children of his second marriage. He also devised property of his own to the same son, subject to the same charges in favour of his other children, his object being, as he said, "to equalize the shares of all his children in all his property." The Court decided that a case of election arose in favour of the children of the second marriage (2).

A principle which is to be borne in mind in considering the doctrine of election is that, as was pointed out in an old case of Bristowe v. Ward (3), there must always be some free disposable

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(1) See judgment of Kay, J., In re Brooksbank. Beauclerk v. James, 34 Ch. D. 163.

(2) White v. White, 22 Ch. Div. 555. See also Wollaston v. King, L. R. 8 Eq. 165; Coutts v. Acworth, L. R. 9 Eq. 519; In re Swinburne. Swinburne v. Pitt, 27 Ch. D. 696.

(3) Bristow v. Warde, 2 Ves. Jun. 336.

property given to the person, out of which a compensation can be made for what the testator takes away.

Election may be implied from acquiescence or conduct. In order, however, that election should be binding, it must be "by a person who has positive information as to his right to the property, and with that knowledge really means to give that property up" (1).

In a case decided in 1889, it was laid down that election is obligatory when the additional benefit comes by operation of law, e.g., by an adverse appointment failing for remoteness; but not where the additional benefit comes direct and in accordance with the intention of the appointor (2).

(1) Dillon v. Parker, 1 Swanston, 359; Wilson v. Thornbury, L. R. 10 Ch. 248. See further on the subject of election: Re Vardon's Trusts, 31 Ch. D. 275, where it was decided that no case of election arose: Cooper

v. Cooper, L. R. 7 H. L. 71; Brett's Leading Cases in Equity, 270, where the cases are reviewed.

(2) Re Wells' Trust. Wells, 42 Ch. D. 646.

Hardisty v.

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