cence. elect. The bill must be dismissed; but I wish it to be under- Of acceptance stood, that it turns upon the particular circumstance, that the or acquiesbill was filed without any ground: and no suggestion, that the real or personal estate is in such a situation as to render it doubtful what the result would be. She consequently has laid no ground that entitles her to elect after enjoyment for five years." 2. As to his 2. As to the representatives of the party bound to elect. Where the party himself would have been bound by the acts representatives. done, of course his representatives will be equally bound thereby. In the case of the Earl of Northumberland v. Earl of Aylesford (b), Duke Algernon, under the will of his father, Charles Duke of Somerset, became entitled, among other things, to the sum of 35,000l. due on mortgage, with an express condition of his releasing other claims. He never executed the release, but his acts being considered as evidencing his election to take under the will, his executors were decreed to release. In Ardesoife v. Bennet (c), the testator devised copyhold to his wife in fee, which did not pass, for want of the admittance of the testator and a surrender to the use of his will. He also bequeathed to trustees the sum of 5,000l. in trust to pay the interest to his sister, Elizabeth, the wife of the plaintiff, for her separate use for life, and after her death the principal to her appointment: and, in default thereof, to her executors and administrators. Elizabeth was the testator's heir-at-law; the devisee was admitted after the testator's death: Elizabeth received the interest of her legacy up to the time of her death, a period of about five years after the admittance of the devisee, without making any claim to the estate, and died without exercising her power of appointing the principal of the legacy; whereupon her husband claimed the legacy. She left an infant son and heir-at-law of herself and the testator. The Master of the Rolls decreed that Elizabeth Ardesoife had made her election to take the legacy, which appeared of greater value than the copyhold estate, and that the infant was thereby bound, and should, when of the age of twentyone, surrender the copyhold to the devisee who should enjoy in the meantime. But where the acts of the party himself would not have been binding upon him, had he, during his life, insisted upon his rights of renouncing those acts, yet it does not thence follow that (b) Amb. 540. 657; see also 2 Ves. sen. 525; and Stratford v. Powell, 1 Ball & Bea. 1. Of acceptance or acquies cence. his representatives, after his decease, are equally entitled to insist upon the right, which the party himself could have enforced. On the contrary, it is said by Lord Hardwicke in Archer v. Pope (d), that the Court will not suffer the representative of the wife of a freeman of London to insist upon the custom, in contradiction to what was done by the wife; and that in cases where, if the wife had been before the Court, she might have had an election. per Again, in Tomkyns v. Ladbroke (e), the same Judge also observes, "Where a freeman by will disposes of his whole sonal estate between his wife and children, and, after his death, the wife has submitted to the will, (not by declaration in writing, but without disturbing it), and the wife dies, and her representatives bring a bill for an account, insisting that the wife was entitled to her share by the custom, and that her husband's will was void, the Court has denied that relief to the representatives of the wife in several cases; because her enjoying it under that was an evidence of her assent, and upon that principle only, not to disturb things long acquiesced in, in families, upon the foot of rights, which those, in whose place they stand, never called in question." In determining the right of the representatives of a party bound to elect, and who has accepted benefits under the instrument imposing the duty of election, but without expressly electing, a question arises, whether they can make compensation to the parties affected by their election, and place them in the same situation, as if those benefits had not been received; for if they can, it would seem, in cases where the long acquiescence of the party under whom they claim would not be considered binding, as in the case put by Lord Hardwicke, that the representatives will be at liberty to renounce the benefits received, and elect for themselves (f). Sir Thomas Plumer, in the case of Dillon v. Parker (g), said, that it was the disposition of the Court so to determine. In the case of Dillon v. Parker, under a marriage settlement in 1741, the manor of Talton, in Worcestershire, a house in Salisbury-square, Fleet-street, and a farm in Tredington, in the county of Worcester, were settled upon Sir Henry John Parker for life; remainder to his first and other sons successively in tail male; (d) 2 Ves. sen. 525. (e) Ib. 592; see also 667, Ib. (f) See 2 Bro. C. C. 5; 2 Scho & Lef. 268. (8) Next stated, 1 Swanst. 385. cence. remainder to himself in fee. The issue of the marriage were of acceptance John Parker, and two daughters, Catherine (afterwards married or acquicsto Garstin) and Margaret Sophia (afterwards married to Strode). John Parker, the son, being seised of other estates, by will, dated 1769, devised them to his father, Sir Henry, for life; and after his decease to trustees in fee, upon trust for the benefit of his said two sisters, Catherine and Margaret Sophia, and their issue. He also devised the manor of Talton, the house in Salisburysquare, and the farm at Tredington, with other property by name, and also all other estates whatsoever which should descend or come to him from his father to his two sisters, Margaret and Ann Parker, (daughters of Sir Henry by his first wife), in fee as tenants in common. He gave all the residue of his personal estate to his father, whom he appointed sole executor if he survived him. By his codicil, he devised an after purchased estate, in Tredington, to his father in fee, and released his portion of a bond debt due to him and his two sisters, Catherine and Margaret Sophia, from his father, enjoining his sisters to forbear any proceeding thereon, under pain of forfeiting the bequests under his will. John Parker died in September, 1769, unmarried and without issue. Sir Henry entered into possession of the estates devised by his son, mortgaged part, and possessed himself of his personal estate. By his will, dated in November, 1769, being seised of the reversion in fee under the settlement, he devised the settled estates, subject to a term of one thousand years, for payment of his debts and legacies, to his two daughters, Margaret and Ann, in moieties, for life; with remainders to their first and other sons successively in tail male, with ulterior remainders including a limitation to Sir William Parker for life, and to his first and other sons in tail male, &c. He then devised the estates, to which he was entitled under the will of his son, to trustees, to the uses and upon the trusts before limited and declared of his freehold estates. By a codicil, he limited the estates devised to his daughters, Margaret and Ann, in the event of their death without issue male, to his daughters, Margaret Sophia Strode and Catherine Garstin, and to their first and other sons in tail male, &c. Margaret and Ann, upon the testator's death in 1771, entered into possession of the estates devised to them by their father and brother. Margaret devised her moiety of the estates devised by her brother to her sister Ann in fee; who, after her death in 1785, entered into possession of the estates devised to her by her father, brother, and sister; and, by will, in 1811, devised the house in Salisbury-square to John Joseph or acquies. cence. Of acceptance Dillon in fee; and the manor and manor-house of Talton, and the farm at Tredington, to Harry Parker, the father of Sir William Parker, in fee, and appointed Sir William executor, with a legacy of 500l. and John Joseph Dillon residuary legatee. The devise to Harry Parker lapsed by his death in testatrix's lifetime. Ann died, leaving John Joseph Dillon her heir-at-law, who filed his bill against Sir William Parker, insisting that Sir Henry Parker, by accepting the benefits under the will and codicil of John Parker, had elected and bound himself to conform thereto, and that he, the plaintiff, was entitled to the settled estates. He also filed a supplemental bill, praying that the defendant might elect to take under or against the will of Ann, and that the plaintiff might be quieted in the possession of the estates at Talton and Tredington. One of the questions was, whether Sir Henry had elected to take under the will of his son? and another, whether Margaret and Ann had elected to abandon their rights under the brother's will, and abide by their father's. For the defendant it was stated, that the title, under which the plaintiff claimed, if it then existed, existed forty-three years ago; and it was urged, that the acts of Sir Henry were equivocal, some denoting an intention to take under the will, others against it. It was insisted that the daughters recognised their father's will, by acts amounting, if not to election, to acquiescence and confirmation. With respect to the election of Sir Henry, Sir Thomas Plumer said, he felt great difficulty in saying Sir Henry ever meant, or even thought, he was bound to elect: whether his acts would have concluded him, had his daughters insisted during his life that he had made his election, was a very different inquiry; but it might be doubtful, whether, on his death, the daughters had any further right, than that of requiring his representatives to make their election. On that point, after stating the disposition of the Court before noticed, he proceeded thus: “If, therefore, immediately on his death it had been contended that Sir Henry had elected, and was bound to relinquish the settled estates, it would have been a question, whether his representatives might not have claimed a right to make their own election, rendering satisfaction for the benefits which he had enjoyed. This first part of the case is full of difficulty. The plaintiff, who desires the Court to deprive the defendant of his legal estate, is bound to establish an indisputable title; he must shew that the son possessed power to devise the estate, or that Sir Henry elected to abide by his will; the bill is not framed for the purpose of putting Sir Henry's representatives to election, and the fact of election by him is negatived by his will made immediately after of acceptance the death of his son. The argument which represents lapse of or acquiestime and acts performed as conclusive, without regard to intent, is subject to great difficulties." Those difficulties, his Honor observed, the second point in the case rendered it quite unnecessary to encounter; and he decided that the daughters, adult and competent, by a series of explicit deeds, had assumed the estates devised by their father, in the character of tenants for life, constituted by that devise, a title totally inconsistent with their claims as tenants in fee of the same estates under the will of the son. In regard to the will of Ann Parker, which devised the Talton estate to the person who would have been entitled to it under the will of Sir Henry, his Honor observed, that it might be said to show a disposition to abide by the will of the son; but when, in so many transactions with third persons, the daughters had recognized their title as devisees for life, they could not, after so long an interval, assume another character. Neither could the plaintiff, insisting that it was not competent to Sir Henry, to claim against his son's will, at the expiration of a month from his death, maintain, that in 1811, after the lapse of forty years, Ann Parker might, in defiance of her repeated acts, assert her claim under the will of the son. The plaintiff's bills, except so much of the supplemental bill as prayed the defendant might elect under or against the will of Ann Parker, were dismissed. The defendant elected to take, against the will of Ann Parker, the premises in Salisbury-square, therein devised to the plaintiff; and it was decreed accordingly, that he was bound to relinquish the legacy of 5007. given by the said will, and to account for her personal estate (h). SECT. VI. Of the effect or consequences of election. cence. consequences of election. It remains to close the present chapter with a few observa- Of the effect or tions upon the effect of election, where the devisee elects to retain his own property in opposition to the will, by which the testator affects to devise it to a third person, and gives other property to him. The cases are not sufficiently explicit to authorize any general rule, nor indeed is it possible to reconcile (h) The judgment in the above case has since been confirmed by Lord Eldon upon appeal; see 1 Jacob, C. C. 505; and affirmed D. |