pation of their respective farms, so long as they duly paid their rents, but the son, after accepting for about a year the same rents as A. and B. had before paid, brought ejectments because they refused compliance with a demand for an increase, and in answer to a bill filed by them, praying that the will might be established, and the recommendation in their favour carried into effect, insisted that he had a right to elect between permitting the plaintiffs to continue his tenants, and giving them a compensation on their expulsiona right which, he contended, it was yet open to him to pursue; Lord Eldon refused to concede that point. It might be difficult, he admitted, to say that the defendant had elected to do any thing else than make compensation; but, as in some cases, a determination to take under a will might be inferred from the acquiescence of the party, as where the length of time rendered it inequitable to disturb the opposite claimant's possession, and as circumstances might have occurred in the interval since the testator's death, which ought to induce the court to declare, that an election had been made to permit enjoyment according to the will, he should for these reasons defer his judgment and direct a search for precedents.

A distinct class of cases on this subject respects the election, which it is incumbent on a widow to make between a provision to which she is entitled by marriage settlement, at common law, or by custom, and benefits given to her by the will of her husband. Here also, a compliance with the testamentary disposition [*]unless opposed by circumstances, be inferred from the conduct of the party. Thus, if a freeman of London bequeaths his whole personal

may

estate to his wife and children, but in proportions different from those into which the custom divides it, and after his death his widow submits to the will (not positively by any formal declaration, but negatively by not disputing it), and then marries again or dies; her second husband or personal representative, cannot bring a bill for an account of the testator's estate, insisting that the widow was entitled to her customary share, and that the will was so far void :-the court, in such cases, always holds her manner of acting to be evidence of assent to take as legatee, and therefore conclusive on a persons claiming in her right (a). With regard to the length of time necessary to this end, Lord Hardwicke, on one occasion(b), said that acquiescence for a year or a year and a half, would be decisive.

So where a widow, provided for by her husband's will, but in a mode inconsistent with her title to dower, or her claims under a marriage settlement, accepts and for some considerable time continues to enjoy the benefits given by the will, she cannot afterwards turn round and elect to take against it. The only ground at least on which a satisfactory excuse for the delay can be founded, is ignorance of the comparative value of the interests between which she has to choose (c) (1).

And as on the one hand, a right specifically to elect

(a) See per Lord Hardwicke,

2 Ves. 593, 668.

(b) See 3 Atk. 616.

(c) Butricke v. Broadhurst, 1 Ves. Jun. 171; 3 Bro. C. C. 88.

(1) Vide Barnard v. Edwards, 1 N. H. Rep. N. S. 109.

[*]may be forfeited by the conduct of the party originally entitled, so it seems on the other, a right to compel election may be barred by the long acquiescence of the opposite claimant. But since, in this case, the delay is injurious only to the latter, the duration of such delay, to be evidence of a relinquishment, must be proportionably longer. A less period than twenty years, by analogy to the statutory limitation, cannot be relied on as invalidating his title(a).

Thus where M. supposing he had power to dispose of a copyhold estate, but of which he was only tenant for life (the remainder belonging to B. in fee,) devised the copyhold to B. for life, then to his children in tail with remainder over to the plaintiff, and also gave to B. the residue of his personal estate; in a suit commenced by the claimants in remainder under M.'s will, against the devisee of B. about twenty-four years after the death of the latter without issue, charging that B. had elected to take according to M'.s disposition ;-Lord Apsley, relying particularly on the length of time, dismissed the bill. The devisee of M., his Lordship observed, was admitted, and had also surrendered to the use of his will, thirty years before the bill was filed. The quantum of the residue too was uncertain, and could not with any likelihood of accuracy be ascertained at that distance of time(b).

V. An equitable right to a provision by settlement

(a) Pettiward v. Prescott, 7 See also Yate v. Moseley, 5 Ves. Ves. 541. 480; Tucker v. Sanger, M'Clel. (b) Cull v. Showell, Ambl. 727. 424, 439.

[*]has likewise, in some instances, been held to be determined by the laches of the party (1).

Thus, where part of a fund belonging to a married woman is ordered to be settled to her separate use, if the usual direction to limit it after her death to her children be omitted, and the order be acquiesced in by the children without complaint, they cannot, after long delay, unless excused by infancy or other impediment, come forward and require the omission to be supplied.

By an order of the Court of Chancery in 1786, a sum of 2501., which belonged to Elizabeth Vaughan, a feme covert, was directed to remain in the Accountant General's name,—the interest to be paid to Elizabeth for her life, and, at her death, the principal to be disposed of as the court, on application from the persons then entitled, should direct. Elizabeth having survived her first husband married again, and died in 1820. Shortly after her decease, a petition was presented by the second husband for payment of the 250%. ;-which was opposed by a son of the former marriage, insisting, that, according to the general rules of equity he was entitled, and that the omission in the order ought to be supplied. But Sir T. Plumer, M. R. said, "The only difficulty in this case arises from an order made in 1786, and acquiesced in ever since by the person now opposing the petition. If the order was wrong from settling the fund only partially and not entirely, it was wrong during the life-time of Elizabeth Vaughan, and ought to have been set right then. The son must have come of age

(1) Straughn &c. v. Wright &c. 4 Rand. 492.

long ago; and after [*]his thus acquiescing in the order, which he now says was improper, I think it is quite impossible to set it aside" (a).

So where a party, who is entitled under the limitations of an executory trust to a remainder in the estate directed to be settled, has neglected for a great length of time to require the trust to be carried into effect, his acquiescence will be adjudged conclusive against the relief sought for, provided that persons previously entitled (had the settlement been actually made) might in the mean time, by legal assurances, have obtained the complete dominion of the property.

Edmund Parker, referring in his will to certain lands which had been purchased by his son Thomas with a sum of 3,000l. he had given him at the time of his marriage, bequeathed other 600l. to Thomas, and directed him to settle the lands so before purchased on the heirs male of his own body, with remainder, in default of such issue, to the right heir male of the testator. Edmund Parker died in 1691, leaving an eldest son George, and also Thomas, surviving him. In 1700 the legacy of 600l., was paid to Thomas, but the settlement which was directed by the will he never made. In 1705, the male issue of Thomas, some of whom it appeared had lived to attain twenty-one, became extinct. Thomas himself died in 1742. Then George, who had survived him, died; and shortly after the death of the latter, his eldest son, as right heir male of the testator, brought a bill against the co

(a) Johnson v. Johnson, 1 Jac. and Walk. 472, 479.