§ 833. Rights of widow who elects to take under will, as to intes tate property. Rights of widow as affected by debts of husband. § 834. § 835. Rights of widow where property reverts to her estate be cause of her remarriage. § 836. Election against the will: Rights of widow. § 837. Rights affected by widow electing against the will. § 838. The same subject: Where widow relinquishes life estate: § 839. Effect on balance of will of election to take under the stat The doctrine of election involves a choice between two inconsistent demands, the acceptance of one being a waiver of the other. Election is defined generally in equity as the choice which a person must make between acceptance of a benefit under an instrument and a retention of some property already his own which the same instrument purports to dispose of to another. The doctrine undoubtedly originated in the civil law,2 and was early recognized in England. In testamentary law, in order 1 Bispham's Equity, (4th ed.) § 295. See, also, 2 Story, Eq. Jur., § 1075; 1 Pomeroy, Eq. Jur., § 395; Ga. Code, (1882) § 3161; Woolley v. Schrader, 116 Ill. 29, 4 N. E. 658; Sigmon v. Hawn, 87 N. C. 450; Moore v. Harper, 27 W. Va. 362. As to a legacy by a debtor to his creditor in satisfaction of the debt, see §§ 728, 729, 758. 2 Inst., lib. 2, tit. 20, § 4, tit. 24, §1; Cad., lib. 6, tit. 37, lib. 10, tit. 42, lib. 9; Domat, pt. 2, bk. 4, tit. 2, § 3. In Devaynes v. Noble, 1 Mer. 605, the Master of the Rolls referred to the rules regarding election as having been borrowed from the civil law, citing Dig., lib. 46, tit. 8, qu. 1, 3; Dig., lib. 46, tit. 3, qu. 5. 3 Rose v. Reynolds, Choice Cas. in Ch. 147, 1 Swanst. 446, n. a; Lacy v. Anderson, Choice Cas, in Ch. 155, 156, 1 Swanst. 445, n. b; Dillon v. Parker, 1 Swanst. 398. n.; Noys v. Mordaunt, 2 Vern. 582; Boughton v. Boughton, 2 Ves. Sen. 14. 1 that the doctrine may be invoked, it is necessary that the testator shall dispose of property belonging to another or in which such other has a statutory right, and by the same instrument give to such other some benefit out of the testator's own property. Where a statutory right exists, such as a husband being entitled to a distributive share in the estate of his deceased wife, the fact that she ignored him in her will and made no provision for him does not divest him of his statutory interest nor force him to an election. Further, the donee must have some claim dehors the will and adverse to it, or the doctrine of election is not applicable. And if the testator makes no disposition of property in which the donee has an interest, the latter can not be called upon to make an election. Also, the disposition must be absolute; the mere 4 Smoot v. Heyser's Exr., 113 Ky. 81, 23 Ky. L. Rep. 2401, 67 S. W. 21. And see Harding's Admr. v. Harding's Exr., 140 Ky. 277, Ann. Cas. 1912B, 526, 130 S. W. 1098. See §§ 251, 252, 310, 622. As to antenuptial and other agreements after property rights of husband and wife, see §§ 625629. As to legal disabilities imposed on married women, see §§ 301-311. As to neither husband nor wife being deprived by the other of right in community property, or of dower, curtesy, or homestead, see §§ 251, 252, 310, 622. A husband or wife may consent to the making of the will of the other. See §§ 253, 254, 623, 624. 5 Wollaston v. King, L. R. 8 Eq. 165, 174; Wallinger v. Wallinger, L. R. 9 Eq. 301; In re Warren's 6 Crosbie v. Murray, 1 Ves. Jun. 555, 561; Smith v. Townshend, 27 Md. 369, 92 Am. Dec. 637; Hattersley v. Bissett, 50 N. J. Eq. 577, 25 Atl. 332; Long v. Wier, 2 Rich. Eq. (S. C.) 283, 46 Am. Dec. 51; Bible v. Marshall, 103 Tenn. 324, 52 S. W. 1077; Bennett v. Harper, 36 W. Va. 546, 15 S. E. 143. Although one who might naturally expect to partake of the testator's bounty be left nothing under the will because of a mistaken belief of the testator recited in the will that such person would receive property from another source, yet if the testator does not dispose of such person's property, no question of election arises. expression of an unenforceable wish or desire is not sufficient." § 814. Immaterial Whether or Not Testator Knew He Did Not Own the Property Disposed Of. 8 A mistaken belief on the part of the testator that he owned the property' of donee and disposed of it only for that reason, is immaterial; the effect is the same as if the testator attempted to exercise a disposing power over the property knowing he had no right so to do. However, if the language of the will denotes that the testator was in doubt as to his right to dispose of property in fact owned by another or in which such other had an interest, and such doubt is expressed in terms which show that the testator intended to make a disposition of such property only if he had the power so to do, no cause for election will arise. The intention of the testator to dispose of another's property must be indicated by the provisions of the will, either expressly or by necessary implication, parol evidence not being admissible to establish intention.10 But circumstances regarding the property and Langslow v. Langslow, 21 Beav. 552; Box v. Barrett, L. R. 3 Eq. 244. 7 Langslow v. Langslow, 21 Beav. 552; Miller v. Miller, 22 Misc. Rep. (N. Y.) 582, 49 N. Y. Supp. 407. 8 Wistler v. Webster, 2 Ves. Jun. 367, 370; Welby v. Welby, 2 Ves. & B. 199; Thellusson v. Woodford, 13 Ves. Jun. 211; Cooper V. Cooper, L. R. 6 Ch. App. 15, 20, L. R. 7 H. L. 78; Grissell v. Swinhoe, L. R. 7 Eq. 291; Coutts v. Acworth, L. R. 9 Eq. 519; In re Brooksbank, 34 Ch. Div. 160; Van Schaack v. Leonard, 164 Ill. 602, 45 N. E. 982; Weeks v. Patten, 18 Me. 42, 44, 36 Am. Dec. 696; Isler v. Isler, 88 N. C. 581; Brown v. Ward (Borden v. Ward), 103 N. C. 173, 9 S. E. 300; Moore v. Harper, 27 W. Va. 362. 9 Church v. Kemble, 5 Sim. 525. 10 Dillon v. Parker, 1 Cl. & F. 303; Dashwood v. Peyton, 18 Ves. Jun. 27, 41; Blake v. Bunbury, 4 Bro. C. C. 21; Wollaston v. King, L. R. 8 Eq. 165, 173; Fitzhugh v. Hubbard, 41 Ark. 64, 69; Morrison v. Bowman, 29 Cal. 337, 351; Mc surrounding the testator may be shown for the purpose of ascertaining the meaning of terms used by the testator and to make intelligible a provision of the will which otherwise can not be understood.11 §815. When Presumption Arises That Testator Intended to Dispose of His Own Property Only: Community Property. A testator is not presumed to attempt to dispose of property belonging to another or in which another has a statutory right unless the provisions of the will evince such intention. For instance, under the laws of some of the states, the wife is entitled, upon the death of her husband, to one-half the community property, the other half being subject to testamentary disposition by the husband.12 If the husband makes a devise of "all my property of which I may die possessed," it will not be construed as manifesting an intent to devise the whole of the community property so as to put the widow to her election,13 Laughlin v. Barnum, 31 Md. 425, 11 Clemenston v. Gandy, 1 Keen But it has been held that the testator must describe the property of another of which he attempts to dispose, so that the donee may recognize it as his own; and that parol evidence is not admissible to identify the property.-Gray v. Williams, 130 N. C. 53, 40 S. E. 843. 12 As to community property, see §§ 251, 252. 13 In re Gilmore's Estate, 81 Cal. 240, 243, 22 Pac. 655. See, also, Attorney-General v. Fletcher, 5 L. J. Ch. N. S. 75; Beard v. Knox, 5 Cal. 252, 63 Am. Dec. 125; Payne v. Payne, 18 Cal. 291, 301; In re Wickersham's Estate, 138 Cal. 355, 363, 70 Pac. 1076, 71 Pac. 437; Exchange and Deposit Bank v. Stone, 80 Ky. 109; Pratt v. Doug § 816. The Same Subject: Where Testator Had Only a Partial Interest in Property Devised. To raise a case of election, the language of the testator must clearly express an intention to dispose of property not his own.1 If a testator make a disposition in general terms of property in which he has only a partial interest, he will be presumed to have intended to bequeath only so much thereof as he was properly entitled to give; and if in the same will a benefit be conferred upon the person who shares with him the title or interest in the property subject to the bequest, such person will not be required to elect between relinquishing his right therein and accepting the benefit conferred by the will.15 No intention to put the widow to her election is to be presumed from a devise in general terms of the whole of the testator's real estate,1o even although his lands are referred to as "all and singular whatsoever."'17 Thus, a general devise in such language as "all my property," or "all my land," will be construed to refer only to the interest las, 38 N. J. Eq. 516. But see Shuttleworth v. Greaves, 4 Myl. & C. 35, 38. A devise by the husband of all property of which he "might die seised in B county," and he had no property in B county except community property, does not put the widow to her election.-In re Gwin's Estate, 77 Cal. 313, 19 Pac. 527. 14 Dummer v. Pitcher, 5 Sim. 35; Crabb v. Crabb, 1 Myl. & K. 511; Jones v. Jones, 8 Gill (Md.) 197; Church v. Bull, 2 Denio (N. Y.) 430, 43 Am. Dec. 754; Fuller v. Yates, 8 Paige (N. Y.) 325; Havens v. Sackett, 15 N. Y. 365; Lefevre v. Lefevre, 59 N. Y. 434; Konvalinka v. Schlegel, 104 N. Y. 125, 58 Am. Rep. 494, 9 N. E. 868. 15 Maddison v. Chapman, 1 Johns. & H. 470; Ga. Code, (1860) § 3093; Pratt v. Douglas, 38 N. J. Eq. 516; Havens v. Sackett, 15 N. Y. 365. See, also, Padbury v. Clark, 2 Macn. & G. 298. 16 Lawrence v. Lawrence, 2 Vern. 365. 17 Dowson v. Bell, 1 Keen 761; Harrison v. Harrison, 1 Keen 765; Thompson v. Nelson, 1 Cox 447. |