Election of a devise or legacy
ELECTION OF A DEVISE OR LEGACY. It is an admitted principle, that a person
shall not be permitted to claim under any instrument, whether it be a deed
or a will, without giving full effect to it in every respect, so far as such
person is concerned. When a testator, therefore, gives what belongs to
another and not to him, and gives to the owner some estate of his own; this
gift is under an implied condition, either that he shall part with his own
estate, or not take the bounty. 9 Ves. 615; 10 Ves. 609; 13 Ves. 220; 2 Ves.
697; 1 Suppl. to Ves. jr. 222; Id. 55; Id. 340. If, for example, a testator
undertakes to dispose of an estate belonging to B, and devise to B other
lands, or bequeath to him a legacy by the same will, B will not be permitted
to keep his own estate, and enjoy at the same time the benefit of the devise
or bequest made in his favor, but must elect whether he will part with his
own estate, and accept the provisions in the will, or continue in possession
of the former and reject the latter. See 2 Vern. 5.81; Forr. 176; 1 Swanst.
436, 447 1 Rro. C. C. 480; 2 Rawle, 168; 17 S. & R. 16 2 Gill, R. 182, 201;
1 Dev. Eq. R. 283; 3 Desaus. 346; 6 John. Ch. R. 33; Riley, Ch. R. 205; 1
Whart. 490; 5 Dana, 345; White's L. C. in Eq. *233.
2. The foundation of the equitable doctrine of election, is the intention, explicit or presumed, of the author of the instrument to which it is applied, and such is the, import of the expression by which it is described as proceeding, sometimes on a tacit, implied, or constructive condition, sometimes on equity. See Cas. temp. Talb. 183; 2 Vern. 582; 2 Ves. 14; 1 Eden, R. 536; 1 Ves. 306. See, generally, 1 Swan. 380 to 408, 414, 425, 432, several very full notes.
3. As to what acts of acceptance or acquiescence will constitute an implied election, see 1 Swan. R. 381, n. a; and the cases there cited.