Election under mistake or misconception. Sect. IV. Of Election under a mistake, or a misconception of the extent of the claims in the party electing. Where 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 concluded by such election or receipt; this rule corresponds with that of the Court of Chancery in cases of dower. In Pusey v. Desbouvrie (i), before stated (k), Lord Talbot expressed his opinion that the daughter ought not to suffer by her ignorance of the law, or the custom of London; and, that although by the brother's information she might know she had power to elect, yet that she might not know she had a right to an account, and to know the amount of her orphanage part before she elected; for, had she known that, it is probable she would not have elected to take her legacy. In Wake v. Wake (1), before stated, the question was, whether, by receipt of the legacy and of the annuity for three years, the widow had not made her election to abide by the will? But Buller, J., for the Lord Chancellor, observed, the question was, whether she had full knowledge of the circumstances of the tes tator and of her own rights; and if so, she should not afterwards deny it; but that after three years only he could not say she was not entitled: and he decreed accordingly. In Kidney v. Coussmaker (m), stated in part in a former page, the widow, by deed poll dated the 29th of November, 1787, released to the executors and trustees all her dower and thirds; and it was thereby declared that the release should not bar or affect the provision or benefit by the settlement or will or to which she might be entitled out of the personal estate of her father by his will or otherwise. The reader is reminded that one of the claims of the creditors of the testator was to the property devised to the wife by his will. Against this claim, it was objected on the part of the widow, that had it been set up at the time she elected, she would not have elected, as she did, to take the estate devised in satisfaction of her dower; that she had a (i) 3 P. Wms. 315. (k) Supra, p. 1592. (1) 1 Ves. jun. 335; supra, p. 1594; also Rumbold v. Rumbold, 3 Ves 65; supra, p. 1608. (m) 12 Ves. 136, before stated, supra, p. 1643. conception. right to an inquiry whether she was entitled to dower or free- Election under bench, and what the value of her dower or freebench was; and mistake or misthat, upon the supposition that no such claim was to be made, she elected to take under the will, and to relinquish her dower, according to the condition imposed upon her by the testator. Upon this part of the case, Sir William Grant observed, that the consequence was only that the widow would not be bound by any election she then made; that she must be let in to any of her legal rights, and an inquiry made, in what estates she was entitled to dower or freebench: her election, made under a mistaken impression that the creditors were not to make any claim upon those estates, not binding her. SECT. V. Of election as implied from acts of acceptance or acquiescence. or acquies cence. Cases involving the question how far the acts or acquiescence Of acceptance of a party, bound to elect between a paramount right and a testamentary disposition, constitute a binding election upon himself and his representatives, depend upon their own peculiar circumstances, rather than the application of any general rules. A detailed statement of the larger proportion of those cases bearing upon this subject would unnecessarily extend the proposed limits of the present work: but a reference to some of the principal cases will properly be here introduced (n). We shall briefly consider, first, how far the acts and acquiescence of the party have been considered as binding on himself, and, secondly, on his representatives. party himself. 1. First, as to the party himself. It is to be inferred from the 1. As to the cases of Pusey v. Desbouvrie, Wake v. Wake, and Kidney v. Coussmaker, stated in the last division (0), that the acts of a party, otherwise indicative of his election, will not be binding, unless done with a knowledge of his rights; nor will his acquiescence, in conformity with those acts, for the same reason, of itself, be conclusive against him (p). The same cases, and those (n) The reader will find some of the cases collected in a valuable note of Mr. Swanston in his reports,, Vol. 1, p. 382. Lef. 267; Rumbold v. Rumbold, 3 (p) See also Whistler v. Webster, (0) See also Earl of Northumberland v. Marquis of Grandby, 1 Eden, 489; Moore v. Butler, 2 Scho. & Of acceptance referred to in the note, likewise justify the inference, that the acts so done must be done with an intention to elect. or acquies сейсе In Stratford v. Powell, Lord Aldborough, by deed in 1799, conveyed to his wife Lady Aldborough his house, furniture, paintings, &c.; and by will, in 1800, bequeathed the same with other property to her for life, with remainder to her issue. He died in January, 1801, and she married the defendant in the December following. After the death of Lord Aldborough, Lady Aldborough entered into possession of the devised property, defended an ejectment as devisee, and received the rents up to her death, which happened in July, 1802. The Master of the Rolls in Ireland decided, that although possession alone did not amount to election without full knowledge of her rights, yet that the possession of Lady Aldborough, coupled with the circumstance of the defence of the ejectment, with full knowledge of her rights, and with a declaration of her intention to abide by her husband's will, and which appeared by the evidence, amounted to an election binding upon her and her representatives. So in Briscoe v. Briscoe (p), where the daughter of the testator having a right to elect between a legacy given to her by her father's will, and a sum to which she was entitled under settlement, and in opposition to the will, proceeded on her marriage to settle the whole of the legacy; and it was held a dealing with the property which constituted an election, and that the daughter had elected accordingly. In Dillon v. Parker, one of the difficulties in the case arose from the circumstance, that the acts of Sir Henry Parker, who was bound to elect between his paramount right and the dispositions of his son John Parker, were so equivocal, as not to be sufficiently indicative of his intention to elect (9): while, on the other hand, the acts of the daughters were considered clearly expressive of their intention to elect to take under the will of their father Sir Henry, and not under that of their brother. Besides the inquiry whether the party has done any act constituting election, and, if done, with a knowledge of right, and an intention to elect, a further question arises, whether mere length of time, after acts done, will render the apparent or supposed election binding upon the party himself, and preclude him from availing himself of the plea of ignorance of his rights; and, if so, what length of time will be sufficient. Upon this point, it is (p) 1 J. & Lat. 334. (9) 1 Swanst. 380, 387; 1 Jacob, 505; D. P. 1 Cl. & Fin. 303. cence. conceived, no general rule can be laid down, and it would seem of acceptance to be an inquiry attended with difficulty, depending upon the or acquiespeculiar circumstances of each case (r). In Buttricke v. Broadhurst, as stated in Brown (s), Lord Thurlow is reported to have said, in allusion to the case of Beaulieu v. Lord Cardigan (t), "All that can be gathered from that case was, that election may be kept open for fifty years. That no line could be drawn from mere length of time, but it must be from circumstances shewing the intent of the party." In Mr. Vesey, junior's, report of the same case (u), his Lordship is reported to have said, that he thought Lord Northington tolerably well founded in that case; but it was determined otherwise in the House of Lords; who decided that the right of election lasted fifty years. But all that was determined by it was, that, under circumstances, it might last till the whole affair was wound up, and the trusts executed. In Wake v. Wake (x) it was held, that three years' receipt of a legacy and annuity under the will, in ignorance of her rights, did not preclude the widow from election. In Dillon v. Parker (y), Sir Thomas Plumer, M. R., observes, that the argument which represents lapse of time, and acts performed as conclusive, without regard to intent, is subject to great difficulties. It may probably be concluded, therefore, that where the acts of the party, bound to elect, are equivocal, so as not to prove a knowledge of his rights, and an intention to elect, it does not appear that any time is prescribed as a bar to the party himself during his life, from availing himself of his plea of ignorance of his rights, and consequently of making his election; unless, indeed, an impediment arise from the circumstance, that the parties to be affected by his claim, cannot be restored to the same situation they would have been in, had the claim been made at an earlier period (z). In Tucker v. Sanger (a), the testator devised an estate called Holwell to Edmund Sanger (who was the heir-at-law of the testator and his wife) and his heirs, on condition of his confirming the will as to other estates called Reeds and Hammetts, of which (r) Dillon v. Parker, 1 Swanst. 381. (8) Vol. III., p. 90. (t) Ambl. 533; 6 Bro. P. C. 232. (u) Vol I. P. 172. (x) Ubi supra, p. 1594; and see Reynard v. Spence, 4 Beav. 103. (y) 1 Swanst. 386 (z) See Tibbitts v. Tibbits, 19 Ves. 662, 663; also Edwards v. Morgan, M'Clell. Rep. 541; confirmed Dom. Proc. 1 Dow. & Cl. 104. (a) M'Clell. (E.), 224, 439. or acquies cence. Of acceptance the testator was only seised in right of his wife, but which he devised in trust for his daughter Mary Tucker, and her issue. Upon the testator's death in 1806, Edward Sanger entered into possession of Holwell. Upon the death of the testator's widow, Reeds and Hammetts descended upon Edward Sanger, but Mary Tucker entered into possession, and received the rents and profits of those estates. Edward Sanger never confirmed the will, nor declared his election; but refusing to confirm the will after an acquiescence of about fifteen years, a bill was filed, among other things, to compel him to make his election; if he had not made it already and Alexander, C. B., ordered it to be referred to the Master to compel him accordingly. The Chief Baron seems to have considered the above case as not falling strictly within the ordinary principles of election in equity, but that the question for his consideration was, whether the express condition of the will had been broken, and if so what were the consequences (a). But when the fund is free ab origine, and the value and amount of it easily ascertained, Buttricke v. Broadhurst (b) has decided, that the legatee having received for five years the provision under the will, will be considered bound by such election. In that case, the plaintiff's husband, by his will, of which he appointed his wife, the plaintiff, sole executrix, devised all his real and personal estate to trustees, upon trust to permit his wife to receive the rents and profits for her life, provided she did not marry again. The trustees never acted. The wife received the rents and profits of the real and personal estate for five years after her husband the testator's death, and then instituted a suit, claiming to elect to take an interest in a trust fund of 2,000l. under her marriage settlement, instead of the property under the will. Lord Thurlow decided, that she had precluded herself from any right to election: observing, "I agree now, that if the wife had filed a bill, stating, that she did not know the state of the fund, and desiring to have the debts and legacies paid, and the property cleared, that she might elect to advantage, she might have done so. So, if the other parties had filed a bill, it could only have been to force her to make her election. But here, having taken possession under the will, and the estate being a free fund from the beginning, I cannot think of a principle, upon which the Court can say she is now competent to (a) M'Clell. (E), 447. (b) 1 Ves. jun. 171; 3 Bro. C. C. 88, S C. |