1 Whart. 490 | Pa. | 1836
The opinion of the Court was delivered by
The plaintiffs claim to recover the property in question of the defendants, upon the principle of election. The doctrine of equitable election is founded on the intention of the author of the instrument, which must, as I apprehend, be collected from the face of the instrument itself. When the intention necessary to raise the question of election, is clearly expressed or necessarily implied, the party to whom a benefit is given by the instrument, but claiming a right adverse thereto, may either be compelléd to make his election, or otherwise to make compensation out of what is thereby given to him. But unless the intention be so expressed or implied, he cannot be put to his election, nor palled on to make compensation. Accordingly, in Blake v. Bunbury, (1 Ves. Jr. 524,) Lord Commissioner Eyre says, “ it ought to appear by declaration, a plain or necessary conclusion from the circumstances; and no man ought under pretence of this rule, to be spelt or conjectured out of his property.” And again' in Crosbey v. Murray, (Id. 557,) he repeats, “ there never can be a case of election, but upon a presumed intention of the testator.” See also Finch v. Finch, (Id. 541.) So Lord Eldon, in Dashwood v. Peyton, (18 Ves. 41,) declares, “ that an effectual' gift may be made by raising a case of election ; but for that purpose a clear intention to give that, which is not his property, is always required.” And it would seem as if the heirs at law of the testator Will not be put to make their election, when the will is susceptible of a construction that does not require it; for Sir Thomas Plumer, Master of the Rolls, in Back v. Kett, (1 Jacob, 534,) held, in case of a will giving certain benefits to the heir at law of the testator, and directing his executors to sell whatever real estate he should die possessed 'of; that the heir was not bound to elect between the benefits given by the will, and lands purchased by the testator after the making thereof, which descended to the heir by law, but held that he was entitled to both, alleging. “ that the direction to the executors to sell all the real estates that he should die possessed of, might mean all which the will could operate upon, that is, all which he then had, and which he should continue to have at his death.” Likewise in Johnson v. Telford, (1 Russell & Mylne, 244; S. C. 4 Cond. Eng. Ch. Rep. 409,) the testator by a codicil, reciting
Now, as regards the casé under consideration, a majority of the court are of opinion that the testator must be presumed to know how the law stood at the time of making his will and the codicils thereto; and that according to it he could not then devise after-acquired real estate; that whatever he should acquire thereafter, if he wished it to pass by his will, he must in order to effect this, either make a new will, republish that he had made, or add a codicil to it, with that view. With this knowledge on his part, it is fair to conclude that by the language used in the codicils to his will, he' only meant to declare that as often as he should thereafter acquire any additional reál estate, his intention then was to dispose of it under his will, either by a republication thereof, or adding to it a codicil. But not having republished his will or made a codicil thereto, subsequently to the purchase of the lands in question, it is reasonable to infer, that ho changed his mind in regard to disposing of them by will, and resolved to let them pass upon his death to his heirs at law. As'to myself however, although I think differently, and incline to entertain the opinion, judging from the language of the codicils alone, that the testator thought he could dispose of his after-acquired real estate by his will, as well as that which he then owned, by declaring his intention to that effect, and that after making the codicils he believed he had done so; yet standing alone in ,this opinion, and not being supported in it by the concurrence of my brethren, I feel that it would be unbecoming in me to pronounce that the testator had manifested an intention free from all reasonable doubt, and such as clearly required an election on the part of the heirs. In this I consider myself sustained by the example of Lord Camper in Lawrence v. Lawrence, (1 Bro. P. C. 591, first ed.) which is one of the early cases, that we have a report of in a Court of Equity on the subject of election. In it, after a recovery of dower at law by Dulcibella Lawrence, and the receipt by her of certain benefits under the will of her late husband,, which Lord Somers conceived were given to her in lieu of dower, he decreed a perpetual injunction against
Thecourt then-in this case, being of opinion that the testator did not intend to pass the property in controversy, by his will and the codicils thereto, it follows clearly that the plaintiffs’ have no ground of pretence whatever upon which to found their claim to a recovexy. But even supposing that he had, and that he had declared his intention to that effect, in terms as clear as the light at noonday, still a majority, if not the whole of the court, are fully convinced that the plaintiffs could not recover.
Anterior to the case of Thellusson v. Woodford, (13 Ves. 209,) which was decided by Lord Erskine in 1806, there is no case to be found, in which it appears to have been suggested or thought that an heir at law, who was a legatee under the will of the testator, and upon whom lands acquired by.the latter, after making his will, had descended, could be compelled to make his election merely because the testator had undertaken by his will to dispose of all the lands which he should thereafter acquire. It is not credible that the case of the heirs at law, taking at the same time a benefit under such will and after-acquired land by descent, never occurred until the case of Thellusson v. Woodford. On the contrary it is more than probable that it often happened without its having ever entered into the mind of any one to make this objection to it. This is strongly persuasive, if not irresistible evidence, to induce a belief, that the doctrine of election was never thought to have embraced - such a case before. This inference seems to receive support from Lord Eldon in Broome v. Monk, (10 Ves. 609,) decided by him in the year preceding that of Thellusson and Woodford by Lord Erskine, when he says, “ election is where the testator gives what does not belong to him, but does belong to some other person ; and gives that person some of his own: by virtue of which gift a condition is implied, either that he will part with his own estate, or shall not take the bounty.” This doubtless, was thought by Lord Eldon to be a faithful and accurate abstract of all the cases decided up to that time, in which it had been held that a party taking a benefit under a will was bound to elect. It certainly embraces vex-y fully and distinctly the cases of Noys v. Mordaunt, (2 Vern. 531.) Streatfield v. Streatfield, (Co. Temp. Talb. 176, and substantially also, as I conceive, the Anonymous case in Gilb. Eq. Rep. 15, which are the leading cases on this subject, with the exception of White v. White and Others, (2 Dick. 522,) to be noticed more particularly hereafter; all decided before our revolution, and therefore to be considered as having a claim to
It is also worthy of consideration, that, although our statutes regulating the disposition of intestates’ estates do not control or restrain men from giving away their estates as they please, except as to one-third of their real estates, which is secured for life to their widows, should they leave any at their deaths, yet they serve to show, that it was thought the interest of the state and that the happiness of its citizens would be best promoted by causing the estates of persons dying intestate, to be parted and divided equally among their surviving relatives, with a view no doubt, among other objects, to preserve equality of condition in this respect, as far as may be consistent with the constitution and the principles'of natural justice. Those, therefore, upon whom these statutes.have cast the ownership of a deceased’s estate, are entitled to favour and protection, and ought not to be deprived thereof, unless by some known rule of equal authority and of unambiguous import. Besides, is there not, I would ask, an inconsistency in a testator's purchasing and taking a conveyance of real estate to himself and his heirs, for his own and their use, and not for the use of the devisees named in his will, after having thereby previously given all such after-purchased estate to them 1 Lord Holt in Bunker v. Cooke, (Fitzg. 229, 232; Gilb. on Dev. 132, 136,) declared it to be repugnant to the will; and if so, I think that I may safely add, that it would therefore be against all
After the decision of Thellusson v. Woodford, the case of Churchman v. Ireland, (Russell & Mylne, 250, S. C. 4 Cond. English Chan. Rep. 412,) came before Lord Brougham, upon an appeal from the decree of Sir Launcelot Shadwell, Vice Chancellor: in which he affirmed the decree of the Vice Chancellor; deciding, that the heir at law, who took some benefits under the will, was bound to elect, where the testator had devised and bequeathed “ all and singular my estate and effects whatsoever and wheresoever, and of what nature or kind soever, both real and personal, which I shall die possessed of, interested in, or entitled unto:” and afterwards purchased real estates. It is true, that the decision of this case is in accordance with the principle laid down in Thellusson v. Woodford; but it is at variance with the rule of construction, adopted by Sir John Leach, Master of the Rolls, in Johnson v. Telford, (Russell & Mylne, 244, S. C. 4 Cond. Eng. Ch. Rep. 409,) as to the words of the testator,showing, as it was contended, an intention to devise after-acquired real estate, and comes in direct conflict with the construction put on similar words, relative to the intention of the testator in this respect, by Sir Thomas Plumer, Master of the Rolls, in Back v. Kett, where the testator by his will, desired his executors to sell whatsoever real estates he might die possessed of, and afterwards bought real estate: it was held that the heir who took benefits under the will, was not bound to elect. In this case, Sir Thomas Plumer said, the heir is not to be disinherited except by express words. And in speaking of the case of Thellusson v. Woodford, which was affirmed in the House of Lords, (1 Dow, P. C. 249,) he said it had gone far enough, and that without such high authority, he should have entertained doubts in it; in short, showing, as Lord Brougham very fairly admits, “that had it originally fallen to him to decide it, he would have come to a different conclusion.” Churchman v. Ireland.
Among the English cases decided before the revolution, which are the only cases of our mother country that are regarded .here as of binding authority, the Anonymous case in Gilb. Eng. Rep. 15, may seem to some not to come literally within Lord Eldori’s description of the case of an election. According to the report, w'hich is nothing more than a bare abstract of the case, it would seem that where a testator seised of two acres, one in fee-simple and the other in tail, and having two sons, devised the fee-simple to the elder, who was the issue in tail, and the fee-tail acre to the younger-; and the elder son, upon the death of the testator, entered upon the fee-tail acre, it was held by Lord Cowper, in 1709, upon a bill filed by the younger son that the elder son was bound either to let the younger son enjoy the fee-tail acre, or otherwise the younger was entitled to have an equivalent out of the fee-simple acre; and it was so decreed,
But where the testator makes a bequest or devise annexing in express terms, a condition to it, as in Streatfield v. Streatfield, and Boughton v. Boughton, it must be evident to the mind of every one, that, as the donor in such case, has the right to prescribe the terms or condition, upon which he is willing to bestow what belongs to him, they ought and must be complied with; otherwise, the legatee or devisee cannot claim the gift. But in other cases, where the rule of election has prevailed, it is perhaps somewhat difficult to discover and comprehend fully the ground or reason of its application. In Noys v. Mordaunt, (2 Vern. 582,) it is said by Lord Keeper Cowper, to be “ upon an implied condition, that each party acquit and release the other.” In Streatfield v. Streatfield, Ca. Temp. Talb. 183, Lord Talbot says “ this court (meaning chancery,) compels the devisee, if he will take advantage of the will, to take entirely, but'not partially under it, there beingo. tacit condition annexed to all devisesofthis nature, that the devisee do not disturb the disposition which the devisor hath made,” which Lord Hardwicke construes an “ implied intent, that whosoever takes by the will, shall comply with the whole;” (2 Ves. 14,) or as he says in another part of the same page," upon a condition implied to this effect by construction of the court.” Lord Eldon seems also to consider it as resting upon an implied condition, that the legatee or devisee shall part with his own estate or he shall not take the bounty. 10 Ves. 609. In Morris v. Burrows, (2 Atk. 629,) Lord Hardwicke speaks of it as “ depending upon the equity of the court, which is, that no person shall take bv the will, and at the same time do any thing that shall destroy the will.” See also 3 Atk. 715. The equity here meant, as I apprehend, is an obligation arising from rather an artificial than a natural construction of the will by the court, that is conceived to become binding on the conscience of the legatee or devisee, to observe the implied intention of the testator whose bounty he accepts, by fulfilling what is called in other terms the implied condition annexed by the construction of the court and not by the testator to the gift; and, though spoken of as a condition, it certainly has not been regarded as being of the same force as an express condition, 'because in Boughton v. Boughton, where the testator by a will sufficient to dispose of his personal estate, but not being so in
But supposing the plaintiffs had had the right upon the death of the testator to have put the defendants to this election, still may it not be questionable whether they could recover the lands in dispute? This right to recover must depend, I apprehend, upon what is meant by election in such case, and the effect of it. Now that the defendants, immediately upon the death of the testator, became invested with the title to the lands, not only in law but in equity, and upon that ground recovered the possession of them in the actions of ejectment brought by them for that purpose, cannot be denied. Then unless the receipt of the legacies by them under the will since the death of the testator, should have created a forfeiture of their right, at least to the possession, and have transferred it to the plaintiffs, I am unable to discover upon what principle the latter can claim to recover the lands. It cannot be pretended, that by the terms of the will, the lands are given, in any event, to the plaintiffs. On the contrary, it has been decided, that the will or the codicils thereto, had no operation upon them whatever, but that they descended by operation of the statute, passing intestates’ estates to the defendants. This would seem to make it necessary then, that there should have been some act done on their part, by agreement or otherwise, by which they passed their right to the land, to the plaintiffs. An agreement made with such view, is out of the question ; none is even alleged. Then is the receipt of the legacies, considering it as an election by the defendants to take under the will, sufficient to produce this effect? Certainly no decision has ever been made, giving such effect to it. A receipt of a legacy under the will has never been held to be a forfeiture of the right to the thing which is acquired by the legatee, through a title paramount to the will, or otherwise than under it. It has been considered at most, as only creating an obligation, to indemnify the disappointed claimant, to the extent of the value of what was designed for him by the will, out of that which is thereby given to the party electing, if it should be sufficient; and also, as authorizing a court of equity, with a view to secure such indemnity, to sequester that which is elected to be so taken under the will. In no case, however, does election create an absolute for-forfeiture, when the value of the thing elected to be taken under the will, is more than sufficient to make a compensation to the disappointed party, equal in value to his loss; for if there should remain a surplus beyond that, the party electing is entitled to it; indeed, it does not belong to a court of equity, at any rate, to pronounce forfeitures, or to impose penalties ; on the contrary, it ofteg relieves from them; and that too in cases where they have been created by the express agreement of the party himself seeking relief, through his neglect to perform his engagement according to the tenor thereof. In. these
But taking this case to be a case of election, and that the plaintiffs acquired a lien upon the lands in dispute by the defendants receiving their legacies, and under such lien had the right to retain the possession of them until compensation were made; and beyond this I think it is impossible to raise the colour of claim to the possession of the lands, may it not admit of some doubt, whether, after having suffered that possession to be recovered from them, they can now sustain an action to recover it back. Though, generally, I admit nothing short of two judgments, rendered in an action of ejectment between the same parties, in favour of the same one of them, is sufficient to form a bar to another action, founded on the same claim to the land between them, yet I am not altogether satisfied, that this rule extends to the case of an ejectment brought merely
If, however, it be as I think it is, that the disappointed party cannot claim and recover that which is held by the legatee, as the lands in this case are by the defendants, under another and different title from the will, after having received the legacy without objection, it may be thought that he ought to have a remedy by a personal action against the legatee to recover from him, at least as much of the legacy received, as would compensate for the loss. Such action may possibly be sustainable, but then, perhaps, it may be made a question, whether all reasonable vigilance ought not to be used by the plaintiff, in order to avoid the necessity of bringing it, by giving notice within a reasonable time, to the executors not to pay the legatee, until the objection to his receiving the legacy, on the ground of its being a case of election, shall be settled and removed; and by undertaking at the same time to indemnify and save the executors harmless, for withholding payment; because there are cases where an objection to the payment of money may be held good in equity, to prevent the receipt of it, but not sufficient to enable the party, who might have interposed the objection, to maintain an action for it, after it shall have been paid without objection. I am not prepared to say, but that a party claiming to recover in such an action, might by his neglect or acquiescence, have his demand exposed to this objection. In the course of the argument it was insinuated, that the executors in such case, might be made to pay the legacy a second time, though no notice not to pay it to the legatee had been given them; but I think it very clear, that this proposition is altogether untenable; for without notice, they have not the means of knowing whether it be a case of election or not; and therefore are not bound or pre
Under every view almost, that can be well taken of the case, the Court are satisfied, not only upon authority, but upon reason and principles of sound policy, that the plaintiffs are not entitled to recover. Judgment must therefore be entered for the defendants.
Judgment for defendants.