Зображення сторінки

circumstances [*]the party's option should be speedily declared. Long neglect to exercise that option, it has been held, affords, with more than usual propriety, an inference that the privilege has been waived.

By the will of John Huckstep, lands, after payment of his debts and legacies, were devised to two persons in fee, subject however to a condition, that if any of the testator's name should be desirous of purchasing, they should be sold to him for 2001. less than their estimated worth. Twenty-five years after the testator's death, a nephew bearing the same surname, exhibited his bill, and claimed a conveyance of the lands at the undervalue which the will specified. But the Lord Chancellor conceiving the demand after so great a length of time to be contrary to the testator's intention, dismissed the bill(a).

IV. To constitute a binding Election, where by the rules of equity an election must be made between a gift by will, and property previously possessed or taken as heir to the testator, it is necessary that the party should have a knowledge of the nature and relative value of the different funds between which he is required to elect; for election imports deliberate

preference. So long as ignorance in regard to these particulars continues, lapse of time, unless sufficiently great to show that the alleged ignorance must have been wilful, does not determine the general equity(6).

(a) Huckstep v. Mathews, 1 3 Bro. C. C. 255; i Ves. jun. Vern. 362. See also Orby v. Trigg, 335, S. C.; Whistler v. Webster, 9 Mod. 2.

2 Ves. jun. 367, 371. See also (6) Pusey v. Desbouverie, 3 P. Rumbold v. Rumbold, 3 Ves. jun. Wms. 315; Wake v. Wake, 65.

[*]Another rule respecting election is, that the party must have a distinct apprehension, that he is under an obligation to elect, and to signify his election by some plain and intelligible act. The cases to which it has been held this rule may apply, that is, when such an apprehension may possibly not exist, are where the devisee or legatee, according to the will, would take an immediate particular estates as well in the property previously possessed, as in that newly given(a); or where the antecedent property of the devisee or legatee being future or contingent, it is apparent from the general scope of the will, that the election need not be made until the reversionary interest falls into possession(b).

But where an election is plainly necessary, and the comparative value of the funds is easy to be ascertained, and the devisee or legatee neglecting to make the needful inquiries, either receives the provisions under the will, or limits himself to the enjoyment of his other property, though without expressly electing,—an

The principle which these cases 172), referred the determination to establish was, in Lord Beaulieu v. the particular circumstances ; and Lord Cardigan (Amb. 533; 3 Bro. he is elsewhere said to have deP. C. by Toml. 277,) carried to an clared over and over again, that it extreme length. It was there held, should never bind any other case that a right to elect lasted till the where there was the least apparent whole of the testator's affairs were difference between them. See 1 wound up, and the trusts executed; Ves. jun. 336. - which in that case consumed a (a) Edwards v. Morgan, M.Clel. space of fifty years. But the au- 541. Sed Vide Stratford v. Pow. thority of this decision, as affording ell, 1 Ball and Be. 1. a general rule, is very questiona (6) Tucker v. Sanger, M.Clel. ble. Lord Thurlow, on its being 424, 439. mentioned before him (1 Ves. jun.

[*]election, after a sufficient time to allow of its being contradicted, will be presumed. And it seems from the obvious necessity in general cases for an immediate determination, that an acquiescence of twelve or eighteen months will prevent a claim to reelect. This rule appears to hold with equal force, though the party required to elect be a feme covert.

The following cases, which establish the doctrine thus generally laid down, serve at the same time to describe as well the nature or state of the circumstances under which election commonly becomes necessary, as also the mode or course of conduct which has been held equivalent to a direct and specific choice.

A testator gave to his son for life the interest of a mortgage debt, which was due from an estate that had been previously settled on the son in remainder after testator's death, and also gave him certain collections of furniture, upon condition of his executing a release of all claims he might have on testator's other property, and of his not contesting the will The son survived his father only fourteen months. He never executed a release ; but on the contrary, upon hearing the will read expressed dissatisfaction, and even declared his intention to file a bill. Yet, forasmuch as he had been very early apprized of the nature of his rights (which indeed were sufficiently plain), and had not paid interest on the mortgage debt, and as he had also taken possession of the furniture and sold some part of it, and had used certain expressions of assent to the will in letters,—these circumstances were held by Lord Keeper Henly, and

on appeal by Lord Camden, to be [*]evidence of the son's acceptance of the benefits conferred by the will(a).

: So where the surrenderee of a copyhold estate, before admittance, made his will, and after giving a legacy of 5,000l. to the separate use of his sister (a feme covert and his presumptive heir), devised the copyhold to his mother in fee, and the sister who survived the testator, received the interest of her legacy during five years, and in other respects acquiesced in the dispositions of the will; on a bill filed shortly after her decease, controverting the validity of the devise of the copyhold on the ground of the testator's not having been previously admitted, and claiming it as having descended to his sister and heir at law,-Sir T. Sewell, M. R., avoiding to decide that point, held that, however such question might be ultimately settled, the right of the devisee could not then be impeached. The sister having so long received the interest of the legacy was evidence, he said, of her election to take under the will; and that her infant heir (who since her death had been admitted) must be considered to hold only in trust for the devisee(6).

In Stratford v. Powell(c), the facts were these : Lord Alborough, in 1799, conveyed his mansion-house, with the furniture and paintings, and also certain adjoining lands, to a trustee for his wife's benefit. After

(a) Earl of Northumberland v. (6) Ardesoife v. Bennet, Dick. Marquis of Granby, 1 Eden, 489; 463. Duke of Northumberland v. Lord (c) i Ball and Beat. 1. 23, et. Egremont, Amb. 657.


wards [*]by his will, he gave the same (amongst other property) to Lady Alborough for life, with a contingent remainder to her children. The testator died without issue in January 1801. His widow en. tered into possession of all the estates devised to her; and in the course of half a year from that time, defended, in the character of devisee, an ejectment brought by the heir at law. In December following she married again, and about eight months afterwards died. A suit in Chancery was then instituted for the purpose as well generally of settling the testator's affairs, as in particular for obtaining a decision whether or not Lady Alborough has sufficiently shown her determination to take under the will. The affirmative of this was resisted on the ground of her having acted in ignorance of her rights. But Lord Manners declared himself of opinion, that there was no evidence whatever to support that pretence : on the contrary, the widow had been in possession above a year, and many circumstances had occurred during that period which called for an election. But other reasons, his Lordship proceeded, besides an accurate knowledge of the two subjects of choice, may serve to determine the mind in cases of this description; and Lord Alborough having left all his property to his widow with a contingent remainder to her children by any other husband, it was very natural for her to say that she would abide by the will.

And again in a late case(a), where estates were devised [*]to testator's son, with a recommendation that he should continue his cousins A. and B. in the occu

(a) Tibbits v. Tibbits, 19 Ves. 656.

« НазадПродовжити »