60. In another case the devise was to the testator's son S., his "heirs and assigns forever," subject to the payment of a sum of money to a daughter of the testator, adding, " if, however, S. should die without issue, then the land to descend to and vest in three other sons named, provided S. should not make sale of it, but if the said S. should sell the aforesaid property, he may grant and assign it as he likes." In January S. and wife, by deed, purporting to be for valuable consideration, sold and conveyed the land to an uncle, who, in May following, by indorsement on the deed, for a valuable consideration, assigned it and the land back to S. The consideration in both cases was in fact merely nominal. S. held the land till he died, leaving no issue nor widow, having devised the land. One of the brothers to whom the devise over was made, brought ejectment for the land, and it was held, that by the sale to the uncle and re-conveyance as above stated, the devise over was defeated, and the absolute title vested in S. which by his will passed to the devisee.151

61. In Ohio, the devise of " the plantation on which I now live," was held sufficient to carry a fee. Bartley, Ch. J. said, "If the expressions used in a will, as descriptive of the estate, are general, and sufficient to comprehend the whole property or estate, without any words of limitation, or other provision of the will qualifying the interest devised, a fee in the land passes." 155 62. The present statute of Massachusetts 156 provides that every devise of land in a will made after the date prescribed, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it clearly appears by the

66

154 Barnet v. Deturk, 43 Penn. St. 92. A devise to the testator's wife, "for her use and comfort, and to be disposed of as she pleases, at or before her decease, when no doubt she will make such disposition of the same among our children as she may then think most proper," was held to create an absolute feesimple, without any trust for the children of the testator. Kinter v. Jenks, 43 Penn. St. 445.

155 Thompson's Lessee v. Hoop, 6 Ohio St. 480, 488.

156 Gen. Stats. ch. 92, § 5.

Before

will, that the devisor intended to convey a less estate."

this statute came in force there, the courts held the rule of the English law, under the statute of frauds, that a devise without limitation should be held to convey only a life-estate, unless a different intention appeared in the will.157 In a will made before the present statute,158 the court held that the word "estate," although accompanied by words of locality, passed a fee, unless controlled by other parts of the will.

63. In a late case,159 the testator devised one third part of a certain farm to each of his three daughters, conditioned that if his executor should think best to sell the farm he should have full power to do so, and to convey the title, and in that event the daughters should each be entitled to receive one third part of the proceeds of the sale. After the making of the will the testator sold the farm and received payment for the same, and it was held the daughters were entitled to legacies equal to one third the purchase-money paid for the farm.

Baker v. Bridge, 12 Pick. 27; Godfrey v. Humphrey, 18 Pick. 537.

158 Leland v. Adams, 9 Gray, 171. The English cases upon this point are here carefully reviewed by Mr. Justice Metcalf.

15 Clark v. Packard, 9 Gray, 417. This is a very just, but rather a forced construction of the will, as it appears to us.

SECTION VI.

.

ELECTION AND SATISFACTION.

1. This implies that a devisee or legatee must elect to claim under the will or against it.

2. The case is well illustrated by the claim of dower by the widow.

3. There must be a clear repugnance between the will and her claim of dower, in order to put her to an election.

4. Where a devisee elects against the will, his devise will go to compensate the devisee thus defeated.

5. Election in favor of the will does not preclude one from taking, through another, against the will.

6. One may accept one provision of a will and reject another wholly distinct, sed quære ?

7. It is not important to the question of election, whether the testator knew his rights.

8. The doctrine of election is based upon compensation and not forfeiture.

9. But power in the testator to make the disposition is indispensable.

10. This point illustrated by appointments made by married women.

11. Persons under disabilities not altogether disqualified from making election.

12. The heir not bound to elect by an imperfectly executed will.

13. To create a case of election, it must result from the disposition in testator's own right; and it does not apply to a wrong disposition under a power.

14. The doctrine of election does not apply to the case of creditors.

15. Parol evidence not admissible to show intent of testator, but is in aid of con

struction.

16. The will not construed to embrace other than testator's own estate, unless very clear.

17. General devise, not construed to embrace estate held in autre droit, if any other

exists.

18. The same general presumption prevails where testator has only a reversion or

equity.

19. Provision in lieu of dower is a purchase of that estate, but not so as to share

of personalty.

20. But the provision may be so expressed as to exclude the widow from any

share.

21. Election must be made with full knowledge, or not binding.

22. In New York the claim of dower is sustained, unless clearly excluded.

23. The widow here may hold under the will and claim dower, unless clearly

repugnant.

24. But if the widow accept of provision clearly in lieu of dower, it creates a bar.

25. Provision in lieu of dower must be paid in full, with interest.

26. The general devise of an estate carries an implied exception of dower.

27. Renunciation under the will only extends to the particular benefit.

28. The rules of law applicable to the subject stated by Morton, J.

29. The acceptance of the provisions of the will presumed because more beneficial.

30. The widow may claim her share in undisposed of personalty, while excluded from dower.

31. The bequest of one half the estate means of the net amount.

32. Rules established in Virginia upon this subject.

33. The widow's right of election is personal, and not transmissible by descent. 34. Late American cases illustrating the time when one may be put to his election. 35. In most of the states provisions of a statutory nature exist.

36. The doctrine of election as held in Pennsylvania.

§ 69. 1. THE definition of what is meant by election under a will may be thus stated, that every person whom the instrument proposes, in any particular, to benefit, must elect whether he will claim under the will or against its provisions. This implies, of course, that the person thus put to an election has some rights in regard to the same subject, which he could maintain independent of the will. The points are well illustrated by the case of the testator's widow, who is by statute, in most of the American states, entitled to a certain share of the personalty, by waiving the provisions of the will, and is at common law entitled to dower in her husband's lands, unless she waive the same. If then there is a share of the personal estate given her by will, or a bequest is made expressly or by clear implication in lieu of dower, she must elect whether she will take under the will or not; and if she elect to take under the will she cannot also claim dower, or any portion of the personalty.1

1 Arnold v. Kempstead, Amb. 466; s. c. 2 Eden. 237; Villareal v. Galway, Amb. 682; Pearson v. Pearson, 1 Br. C. C. 292, and notes; Fuller v. Yates, 8 Paige, 325.

2. But what will put the widow to an election in regard to her dower, is a point upon which there has been a good deal of discussion in the English courts; and as it is one which is very likely to occur in practice, and will well illustrate the general subject, it may not be amiss to state the points which have been decided in regard to it.

4

3. It must be reasonably clear that the provisions of the will were intended to be in lieu of dower. Thus it has been held, that a legacy in the will affords no ground of presumption that it was intended to exclude the right of dower. There is no repugnancy between such a gift and the claim of dower by her.2 The right to dower being a clear legal right, it has been considered that the will itself ought to contain some provision inconsistent with such claim or right.3 In Fuller v. Yates the rule is thus stated: "The right of dower being a legal right, the wife cannot be deprived of it by a testamentary disposition in her favor, so as to put her to an election, unless the testator has manifested his intention to deprive her of her dower, either by express words or necessary implication." The gift of an annuity to the widow, although charged upon all the testator's property, and all the real estate is given to another person, will not be sufficient to put her to her election between the annuity and the claim of dower. And it was here held, that even the gift of a portion of the real estate to the widow for life will not be sufficient to put her to an election. In the late case of Bending v. Bending, this point is examined at great length, and the con

22 Story, Eq. Jur. § 1088; French v. Davies, 2 Ves. Jr. 572, 577; Lawrence v. Lawrence, 2 Vern. 365; Greatorex v. Carey, 6 Vesey, 615; Kitson v. Kitson, Prec. Ch. 351; Foster v. Cook, 3 Br. Ch. C. 347; Fuller v. Yates, 8 Paige, 325.

* Birmingham v. Kirwan, 2 Sch. & Lef. 444, 452, 453; Harrison v. Harrison, 1 Keen, 765, where the question is discussed at length by Lord Langdale.

8 Paige, 325, 328, 329.

Holdich v. Holdich, 2 Y. & Coll. 18, 21, 22.

3 Kay & Johns. 257.