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therein of the testator;18 likewise where the testator devises only his "interest" in the property.19

But a specific devise of land in which the testator has an undivided interest will put the other owners to their election.20 The intention of the testator to dispose of a larger interest in property than properly belongs to him can not be shown by parol;21 but, of course, the context of the will may be examined to determine his intent.22 And if the provisions of the will show that the testator intended to dispose not only of his own interest in the property, but of the interest of the donee as well, a case arises calling for an election.23

§817. Doctrine of Election Founded on Equitable Principles.

One cardinal principle regarding election is that the donee named in the will, whose property has been disposed of by that instrument, can not take both his property and the benefit conferred by the will unless the

18 Ellis v. Lewis, 3 Hare 310, 215; Bending v. Bending, 3 Kay & J. 257, 261; Seaman v. Woods, 24 Beav. 372; Miller v. Thurgood, 33 Beav. 496; Blake v. Bunbury, 4 Bro. C. C. 21; Sherman v. Lewis, 44 Minn. 107, 46 N. W. 318; Pratt v. Douglas, 38 N. J. Eq. 516, 537; Sanford v. Jackson, 10 Paige (N. Y.) 266; Charch v. Charch, 57 Ohio St. 561, 49 N. E. 408; Gibony v. Hutcheson, 20 Tex. Civ. App. 581, 50 S. W. 648; Penn v. Guggenheimer, 76 W. Va. 839.

See § 821.

.9 In re Durfee's Petition, 14 R. I. 47. See, also, Welby v. Welby, 2 Ves. & B. 187; Wintour v. Clifton, 21 Beav. 447.

20 Isler v. Isler, 88 N. C. 576, 581. 21 Stratton v. Best, 1 Ves. Jun. 285; Blake v. Bunbury, 1 Ves. Jun. 514, 523; Pole v. Somers, 6 Ves. Jun. 309, 322; Druce v. Dennison, 6 Ves. Jun. 385, 402; Doe v. Chichester, 4 Dow. 76; Clementson v. Gandy, 1 Keen 309.

Contra: Pulteney v. Darlington, 2 Ves. Jun. 544. See, also, Fitzhugh v. Hubbard, 41 Ark. 64; Baily v. Duncan, 4 Mon. 265, 266. 22 Swan v. Holmes, 19 Beav. 471. 23 Honywood v. Forster, 30 Beav. 14; McGregor v. McGregor, 20 Grant Ch. (U. C.) 450; Matter of Gotzian, 34 Minn. 159, 57 Am. Rep. 43, 24 N. W. 920; Skaggs v. Deskin, (Tex. Civ.) 66 S. W. 793.

construction of that document shows the testator so intended. The earlier cases held that the doctrine was founded upon the intent of the testator that his entire will should stand or that, if the donee whose property had been disposed of should claim his statutory rights, the donee would forfeit the testamentary benefits.24 But the intention of the testator can not be the controlling factor in a case where he has made a gift of the property of another under the belief that it belonged to him.25 It is often said by the courts that the testator is presumed to know, and therefore his intention is assumed although it did not in fact exist;26 however, evidence dehors the will is never admitted either to prove or refute intention.27 The doctrine of election in fact has become a rule of law. The testator's intention, when expressed, is controlling, 28 and in most cases it will perhaps be carried out. But the real foundation of the doctrine is in equity, "that he who seeks equity must do equity"; that if one seeks rights adverse to a will, he must recognize the rights of others under the same instrument. The electing donee by claiming his statutory rights can not deprive other beneficiaries of benefits given them, and at the same time demand the property left him by the will.29 The principle,

24 Greenwood v. Penny, 12 Beav. 406; Broome v. Monck, 10 Ves. Jun. 597, 609; Thellusson v. Woodford, 13 Ves. Jun. 209; Cowper v. Scott, 3 P. Wms. 119; Sugden on Powers, (8th ed.) 575.

25 Cooper v. Cooper, L. R. 7 H. L. 74; McGinnis v. McGinnis, 1 Ga. 496, 503.

26 Havens v. Sackett, 15 N. Y. 365, 373; Tripp v. Nobles, 136 N. C. 99, 67 L. R. A. 449, 48 S. E.

675; Gilroy v. Richards, 26 Tex.
Civ. App. 355, 63 S. W. 664.
27 See § 814.

28 In re Vardon's Trusts, 31 Ch. Div. 275, 279.

29 Cooper v. Cooper, L. R. 7 H. L. 67; Barrier v. Kelly, 82 Miss. 233, 62 L. R. A. 421, 33 So. 974; Sparks v. Dorrell, 151 Mo. App. 173, 131 S. W. 761; Penn v. Guggenheimer, 76 Va. 839.

"The doctrine of election rests upon the principle that he who

however, is one of compensation to the beneficiaries who are disappointed because of the action of the party electing against the will, rather than one of forfeiture by the one claiming his statutory rights.30 Accordingly, after the losses of the beneficiaries whose gifts have been taken away because of the election against the will have been satisfied out of the property given by the will to the donee so electing, any surplus that may remain does not devolve as an undisposed of residue, but belongs to the electing donee.31

§ 818. Nature of Cases Calling for Election.

A case which will serve to illustrate the doctrine of election was one where a debt owing the testator had been assigned by him to his sister. By his will he left to his sister all the remainder of his property, and to his debtor he bequeathed the full amount of the debtor's indebtedness to him. Here the testator had undertaken to dispose of a chose in action belonging to his sister; yet as at the same time he had given her his whole estate, her conscience was held to be affected by the implied condition

seeks equity must do it, and means, as the term is ordinarily used, that when two inconsistent or alternative rights or claims are presented to the choice of a party, by a person who manifests a clear intention that he should not enjoy both, then he must accept or reject one or the other; and so, in other words, that one can not take a benefit under an instrument and then repudiate it."-Peters v. Bain, 133 U. S. 670, 695, 33 L. Ed. 696, 10 Sup. Ct. 354.

30 Latta v. Brown, 96 Tenn. 343, II Com. on Wills-21

31 L. R. A. 842, 34 S. W. 417.

31 2 Story, Eq. Juris., § 1085; Cooper v. Cooper, L. R. 6 Ch. App. 15; Rancliffe v. Parkyns, 6 Dow. 149; Ker v. Wauchope, 1 Bligh 1; Green v. Green, 2 Mer. 86; Gretton v. Haward, 1 Swanst. 409; Ga. Code, (1882) § 3162; Jennings v. Jennings, 21 Ohio St. 56, 81; In re Sandoe's Appeal, 65 Pa. St. 314.

Compare: Bristow v. Warde, 2 Ves. Jun. 336; Box v. Barrett, L. R. 3 Eq. 244; Lewis v. Lewis, 13 Pa. St. 79, 53 Am. Dec. 443. See § 837.

annexed to the testator's bounty so that, while availing herself of the will in one direction, she should not defeat its operation in another.32 Election, however, is most frequently illustrated by those cases in which the testator disposes of real estate in such terms as to indicate an intention to include the dower right of his wife in the devise, and in the same will confers some benefit upon his wife. In such cases the wife is required to choose between the relinquishment of her dower and the acceptance of the bequest given in lieu thereof.

§ 819. Manner in Which Intent to Put Widow to Her Election Must Be Expressed.

A common instance of election is where a testator makes a devise or legacy in favor of his wife, expressing the fact that the gift is made in lieu of dower. In such a case the widow is put to her election, the expressed intention of the testator being controlling. Difficulty arises, however, in those cases where the intention of the testator is not set forth in direct terms. The mere fact that he may make a bequest or devise in favor of his wife will not preclude her from taking under the will and demanding her dower as well unless her claim for dower be inconsistent with and operates to defeat the general provisions of or the scheme of disposition set forth in the will.33 In the absence of express words that a benefit

32 Fitzhugh v. Hubbard, 41 Ark. 64, 69.

33 Metteer v. Wiley, 34 Iowa 214; Howard v. Watson, 76 Iowa 230, 41 N. W. 45; Sutherland v. Sutherland, 102 Iowa 535, 63 Am, St. Rep. 477, 71 N. W. 424; Matter of Gorden, 178 N. Y. 25, 92 Am. St. Rep. 689, 64 N. E. 753.

In Kennedy v. Nedrow, 1 Dall. (U. S.) 415, 418, 1 L. Ed. 202, Chief Justice McKean says that to bar the widow of dower, "it must appear to be so intended by the words of the will, and not inferred from its silence, or presumed upon conjecture: for, no devise to a wife, even of an estate in fee

conferred upon his wife by the testator in his will is in lieu of dower, to preclude her from taking both, the face of the will must clearly demonstrate the intention of the testator to the contrary. Such intention is shown only when it clearly appears without ambiguity or doubt that to permit the widow to claim both dower and the benefits given under the will would interfere with the other dispositions made by the testator and disturb the scheme of distribution manifested in the will. The claim of dower and the right to take under the will must be clearly incompatible and such incompatibility must appear from the face of the will.34 The widow is not put

simple, although ten times more valuable than her dower, will be, of itself, a bar to dower; but, it will be considered as a benevolence, and she is entitled to both. Nor, in such a case, will equity interpose against the wife; for I can not find any instances in which relief upon this subject has been given but in the following: 1st. Where the implication that she shall not have both the devise and the dower is strong and necessary; 2dly. Where the devise is entirely inconsistent with the claim of dower; and 3dly. Where it would prevent the whole will from taking effect; that is, where the claim of dower would overturn the will in toto."

In Howard v. Watson, 76 Iowa 230, 41 N. W. 45, it is said: "The devise to the defendant is an estate for life, and it has been held that a widow 'may take dower, notwithstanding a devise to her in the will, unless there is an

express provision in the will to the contrary, and the claim for dower be inconsistent with and will defeat some provision of the will.'"

In Smith v. Kniskern, 4 Johns. Ch. (N. Y.) 9, Chancellor Kent laid down the rule that the widow takes both her dower and under the will unless the estate is insufficient to support both, or such an inconsistency appears between the provisions in the will and the dower as to make the intention clear and indubitable that both provisions were not to be taken. To the same effect, see Fuller v. Yates, 8 Paige Ch. (N. Y.) 325; Sandford v. Jackson, 10 Paige Ch. (N. Y.) 266.

34 Birmingham V. Kirwan, 2 Schoales & L. 444, 452; Matter of Zahrt, 94 N. Y. 605; Konvalinka v. Schlegel, 104 N. Y. 125, 58 Am. Rep. 494, 9 N. E. 868; Asche v. Asche, 113 N. Y. 232, 21 N. E. 70.

In Tobias v. Ketchum, 32 N. Y. 319, 324, the test given is that the

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