Requisites. Amount of property must be ascertained. 4. A know ledge of right in the party electing. Thus, in Newman v. Newman (y), upon an appeal from the Rolls, it appeared that an estate had been settled, upon the marriage of the late Mr. Newman with the appellant, his widow, on the husband for life; remainder to the wife for life; remainder to the issue of the marriage; remainder to the wife in fee; and that a bond was given to secure 30l. a year to the wife, in case she survived him, as a further provision. That the husband by his will devised another real estate to the wife for life, remainder to the issue; but, if there should be none, then to the wife in fee, in bar of her other claims; and he gave to her the residue of his personal estate, after some specific and general legacies, in the same manner, and made her executrix; but the will was not attested to pass real estate. The question was, whether the widow should take the personal estate, together with her other claims; or was to elect between them, although the real estate could not pass by the will: and Sir Thomas Sewell, M. R., decreed, that she ought to elect; but he postponed the election, till an account should be taken of the personal estate; and the decree was affirmed by Lord Thurlow, C. In Chalmers v. Storil (yy), the widow was put to her election between her dower and interests under the will; and Sir William Grant, M. R., said, that it was a case of election; but before she could be compelled to elect, she was entitled to know what she had a right to under the will. The parties compellable to elect may file their bill to have all such necessary accounts taken (z). 4. The last requisite essential to election, and which relates to its validity when made, is a knowledge of right in the party electing. So that, if legatees make their election, or receive for a length of time the provisions of the will, without knowing their rights, and the circumstances of the testator, they will not be bound by such election or receipt; this corresponds with the rule of the Court of Chancery in cases of dower. Thus, in Pusey v. Desbouvrie (a), Sir Edward Desbouvrie, a freeman of London, possessed of a very considerable personal estate, compounded with his wife for her customary part. He (y) 1 Bro. C. C. 186; also Boynton v. Boynton, Ib. 444; also Hender v. Rose, 3 P. Wms. 125, notes; and Whistler v. Webster, supra, p. 1577. (yy) 2 Ves. and Bea. 225, infra, sect. III.., sub-sect. 4. (z) Buttricke v. Brodhurst, 3 Bro. C. C. 88; 1 Ves. jun. 171; Pusey v. Desbouvrie, next case. (a) 3 P. Wms. 315, and notes. had a son, the defendant, to whom he had given very large sums Requisites. of money to enable him to trade, and a daughter. By his will A knowledge he gave his daughter 10,000l. upon condition that she released of right in the party electing. her orphanage part, together with all her right to his personal estate by the custom of London or otherwise; and made his son executor. After the testator's death, it was agreed between the son and daughter, that she should take the legacy of 10,000. upon the terms of the will; and a release was accordingly prepared. Before she executed it, her brother in the presence of their uncle, informed her, that she had an election to have an account of her father's personal estate, and to claim her orphanage part; but she declared she would accept the legacy left her by her father, observing it was sufficient for any young woman; she accordingly executed the release, being about twenty-four years of age; and her brother paid her the legacy with interest. She afterwards married one Pusey, an attorney, who filed the bill to set aside the release, charging that the personal estate, of which testator her father died possessed, was much above 100,000%; the daughter's share of which by custom was upwards of 40,000%; that the mother, having been compounded with for her customary part, the freeman's personal estate was to be distributed as if there were no wife; consequently the dead man's part was one moiety, and the children's part the other; and that the defendant the son had been advanced by his father, at different times, with several large sums of money, the whole of which would amount to a full advancement of the son, so that the plaintiff in right of his wife was entitled to a moiety of her father the freeman's personal estate. Lord Talbot, C., though he saw no fraud in the case, conceived it hard, that the sister should suffer for her ignorance; and that if the Court themselves had not till lately agreed in what proportions these customary parts should go, the daughter might well be ignorant of her right, and ought not to suffer or give others any advantage by her ignorance. That though the son had informed her of her right, either to accept the legacy or orphanage part, yet his Lordship hardly thought she knew she had a right to have an account taken, and first know what her orphanage part did amount to; and then, and not till then, she was to make her election; for probably she would not have accepted the legacy, had she known what the orphanage part amounted to; and his Lordship postponed the hearing until the amount of the father's personal estate at the date of the will, and at his death, and also what the advancements to the son amounted to. The cause was afterwards compromised. Requisites. A knowledge of right in the party electing. In regard to the proportions of the orphanage part, when the wife had been compounded with as to her customary part, Lord Talbot observed in the last case not only the counsel had differed, but the Court had varied in their determinations. It had for instance, been determined, that where the husband had compounded with the wife before the marriage, he was a purchaser of her customary part, which he was to take as his own; but that then a different resolution seemed to have prevailed, namely, that it should in such case be taken as if there were no wife; and, consequently, the testator take one-half, and the children the other. Again, in Wake v. Wake (b), the testator bequeathed to his wife 100% to be paid out of his personal estate, within six months after his death; and, after some particular dispositions, gave all his estate and effects whatsoever, subject to an annuity of 351, to his wife for life, in trust for his son by a former wife, whom he made residuary legatee. The widow received her legacy, and also the annuity for three years; and then brought the bill claiming both the interest under the will and her dower, which was about 80% a year. The trustees had let the son into possession at twenty-one, according to the directions of the will. The Court being of opinion that the widow ought to elect, the question was, whether, by receipt of the legacy and of the annuity for three years, she had not made her election to abide by the will. But Buller, J., for Lord Thurlow, C., thought otherwise, observing, "If the argument for the defendant holds, a single payment would have bound her: but the point is, whether she had full knowledge of the circumstances of the testator, and of her own rights. I think there was a case before me, about two years ago, at Lincoln's Inn Hall, which went much beyond this. If she had acted with full knowledge, she should not afterwards deny it, but after three years only, I cannot say she is not entitled. The legacy of 100%. and what she had received from the annuity must be accounted for.” If the question of election be doubtful, it may be sent to a jury to determine the fact (c). It was stated arguendo by Sir Edward, then Mr. Sugden, in (b) 1 Ves. jun. 835 ; also Rumbold Morgan v. Edwards, M'Clell. Exch (c) Roundell v. Currer, 2. Bro. C. C. 73; 1 Swanst. 383, note. Astley v. Milles and others (d), that Lord Hardwicke, C., had Application of decided that a person might elect by parol; and that he, Sir election. Edward Sugden, had a manuscript note of the case. SECT. III. Application of the doctrine of election- 1. First, to the heir at Common Law. 1. To the heir It appears to be settled, that where the will, made before the at common law. first of January, 1838, is invalid, as a disposition of real estate, not being duly executed in the presence of and attested by three or more credible witnesses according to the Statute of Frauds (dd), so that the lands descend to the heir-at-law, he will not be obliged to elect between his right as heir, and any benefit that may be given him under the will; and the same rule prevails where the will is invalid as a disposition of real estate, by reason of the incapacity of the testator on account of infancy (e) or coverture. But, although the will were not duly executed according to that statute, still, if it contained an express condition that any legatee, who might not comply with its terms, should forfeit all benefit under it, there the heir would, by force of the condition, be obliged to make his election: and notwithstanding the devise, when made to the heir, might be considered void as to him, yet he was equally obliged to elect in that case, as though he were a stranger. It may here be remarked, that a will within the 1 Vict. c. 26, which would raise a question of election against the heir, must be valid for all purposes. The preceding propositions will be discussed in detail, under the following arrangement: 1. Where a will, made before the 1st of January, 1838, is invalid for want of due execution, according to the Statute of Frauds. 2. Where such will is invalid, on account of the incapacity of the testator by reason of infancy, or of the testatrix by reason of coverture. 3. Where such will, though not so executed, contains an express condition of forfeiture on non-compliance with its terms. 4. Where the will of a person dying before the first of January, 1834 (ƒ), though duly executed according to the Statute of Frauds, is void, as a devise to the heir. (d) 1 Sim. 326. (dd) 29 Car. 2, c. 3. (e) 13 Ves. 223-4. (ƒ) 3 & 4 Wm. 4, c. 106, s. 3. Application of election. To the heir at common law. 1. Where the will is invalid for want of due execution, according to 1. And first, where the will, made before the first January, 1838, is invalid for want of due execution according to the Statute of Frauds. In Carey v. Askew (f), the father of the plaintiff being seised of freehold and copyhold (the latter of which he had surrendered to the use of his will) by his will charged his real and personal estate with his debts and legacies, and devised all his freehold 29 Car. 2, c. 3. and copyhold estates to his wife for life, and after her death to his two daughters, and any that he might have by his wife equally. He had two daughters, the defendants, and afterwards another daughter, the plaintiff, by a second marriage. He afterwards made instructions for a will, but died before the execution, charging his debts and legacies, and giving to his daughter by his second wife 15,000l. with a direction for maintenance. He then gave all his freehold and copyhold estates, and the residue of his personal estate to his two daughters by his first wife. Probate of the instrument was granted as to the personal estate. It was contended by the plaintiff that the copyhold estate did not pass by the unattested will. Another question was as to election by the plaintiff: Lord Kenyon said, it was not a case of election. Lord Redesdale cited Stapleton v. Lord Colville, 5 July, 1772, to the same effect. Again, in Sheddon v. Goodrich (g), Bridger Goodrich of the island of Bermuda, by will duly attested, gave to his wife Elizabeth Goodrich all his estate in that island for life. After making further provision for his wife, and provisions for his son and daughters, and directing his executors, after his wife's death, to sell the whole of his real and personal estate, he gave the residue of his estate of what nature soever, which should remain in his executors' hands after performance of the directions of his will, to his only son William Bridger Goodrich, and appointed him residuary legatee. He then appointed Robert Sheddon, John Goodrich, and his wife, executors and executrix. At the date of the preceding will, the testator had four children named in it, but afterwards had another daughter; after which event he made another will, which was only attested by two witnesses; and by this will, after revoking prior wills, he gave to his wife his property at Bermuda to her and to her use for ever, and also gave her an annuity of 1,2007. sterling for life. The residue of his (f) Cited by the late Sir Samuel Romilly, from his own note, 8 Ves. 492; reported, 2 Bro. C. C. 58, but not upon this point. (g) 8 Ves. 481; see also Hearle v. Greenbank, 3 Atk. 697, 715, infra, p. 1601. |