Woodford, 29. P. Thelusson devised several real estates to trus- Thelusson v. tees, upon trust to accumulate the rents to a certain 13 Vesey, 209. 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. c. 20. 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 judgment which I find myself bound to give, with some reluctance, considering this will as dictated by feelings not altogether consistent with Vide infra, convenience. But this appears to me to be a case of election. The jurisdiction exercised by this Court, compelling election, may be thus described. A 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 2 Ves. Jun. 367. not take both; and the consequence follows, 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 in the case of Whistler v. Webster-That no man 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 distinc tion 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 considerable 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, § 21. 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, § 25. 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, § 27. 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 32 Hen. 8. 1 Dow. 249. 9 Ves. 437. Forrester v. Cotton, 1 Eden, 532. 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 the evidence of three witnesses. If not so proved, it is nothing; it cannot receive notice. The intention cannot be represented; for it cannot be presumed, and there is no evidence:the will not being executed with the solemnity prescribed by the law, as to real estate, cannot be read: the Court cannot see any devise of real estate; and therefore, as the estate does not appear to be devised away from the heir, no act appearing to be done, as in this case the act does appear to be done by Mr. Thelusson, the heir cannot in that case be put to election. "The case of Hearle v. Greenbank stands upon the same ground; an infant under the statute not having a right to dispose of real estate, the Court cannot look at the will. It is, from the incapacity of the person who frames it, considered as no instrument. "These are the only instances in which the principle has been limited. It cannot be argued that it does not reach an heir at law. Lord Hardwicke would not put the case of an heir at law, by way of illustration, if the heir could not under any circumstances be put to election. The principle of election is plain and intelligible; that if a person being about to dispose of his own property, includes in his disposition, either from mistake or not, property of another, an implication arises, that the benefit under that will shall be taken, upon the terms of giving effect to the whole disposition. Mr, Thelusson's heir takes these estates, as if his father had not made a will; but my opinion is, that he cannot also take what is given to him by the will. He must therefore elect." Upon an appeal to the House of Lords, the order was confirmed. 30. Mr. Vesey, in a note to this case, observes, that the case of a devise to the heir of an estate which he would have by descent, if no will was made, and to another person of an estate of which the heir is seised in his own right, is put by Sir S. Romilly as said to be a case of election; and that Mr. Sugden had found a precise decision of the point accordingly against the heir. Anon. Gilb: Eq. Rep. 15. And in that instance it might be observed, the heir took, not under the devise, but by his better title, descent. The devisor however devising the estate to him, must be conceived to be aware of his power to devise it away; and the condition was accordingly implied. simple. THE proper subjects of a devise are real estates; and the Estates in fee words used in the statute of wills are, " manors, lands, tenements, rents, or other hereditaments, in possession, reversion, or remainder;" which extend to every species of real property, whether corporeal or incorporeal. 2. Not only estates in fee simple absolute, but also 3 Buls. 184. determinable fees, and base fees, are devisable under these statutes; the term fee simple being taken in its most extensive sense. 3. By the words of the statute 34 & 35 Hen. VIII. |