34 Ala. 558 | Ala. | 1859
Mrs. Garrett, (now the wife of complainant Reaves,) under the deed of John Garrett, made in 1851, took a separate estate, for her life at least, in the two slaves, Henry'and Malinda. Whether she took a larger estate, is a question which has not been considered by counsel, and it is not indispensable for us to decide it. By agreement, all claim, so far as Malinda is concerned, is abandoned. The will of Mrs. Garrett’s deceased husband, made after 1851, bequeaths all the testator’s property to her, during her life or widowhood; and Henry is specified as a part of the property bequeathed. In the contingency of Mrs. Garrett’s marriage, a division per capita of the entire property, including Henry,'between her and the testator’s children, is directed. The will thus bequeaths, an interest in Mrs. Garrett’s slave Henry, to take effect on her marriage, to others: The case is therefore presented, in which an interest in Mrs. Garrett’s property, belonging to her by a title independent of the will, is bequeathed to others, while she herself is a legatee and devisee under tbe will. She cannot take the interest in her property which has been bequeathed to others by the will, and also take under the will all that is bequeathed to her besides her own property. A case for an election is clearly presented. — 1 Leading Cases in Eq. (notes to Noyes v. Mordaunt, and Streatfield v. Streatfield,) 223 to 321; 2 Story’s Eq. Jur. §§ 1076, 1082-3-4, 1093; 2 Lomax on Ex’rs, 282, 288, (m. p.) 164, 165, 167; 2 Roper on Leg. 1566, et seq.; Wilson v. Townsend, 2 Vesey, 693.
What acts of acceptance or acquiescence constitute an implied election, must be decided rather by the circumstances of each case, than by any general principle. The questions to be considered are, whether the parties acting or acquiescing were cognizant of their rights; whether they can restore the individuals affected by their claim to the same situation as if the acts had never been performed; or whether, on the principle “ interest reipublicm ut sit finis litium,” these inquiries are precluded by lapse of time. Swanston’s note to Dillon v. Parker, 1 Swanst. 381; 2 Story’s Eq. Jur., § 1097; 2 Roper on Leg. 1653. An election can only be implied from plain and unequivocal acts, under a full knowledge of all the circumstances, and of the parties’ rights. — Duncan v. Duncan, 2 Yates, 302; Cauffman v. Cauffman, 17 S. & R. 25. It is not sufficient that there should be an intention to elect; and loose conversations, expressive of such an intention, are not to be weighed in determining the question. — English v. English, 2 Green’s Ch. 510. This principle deprives of all importance the declarations prov'ed to have been made by Mrs. Garrett, except so far as they go to show her knowledge of her title. One is never bound to make an election, until fully informed of all the circumstances necessary to a judicious and discriminating choice; and if an election should be made in the absence of such knowledge, it will, as a general rule, not be obligatory. 1 Leading Cases in Eq. 320-1; Pinckney v. Pinckney,
The will conveyed other property than that which belonged to Mrs. Garrett. There was, therefore, in the fact that Mrs.- G\ procured the admission of the will to probate, anjí qualified as executrix under it, nothing which is inconsistent with her claim to the slave Henry. The inclusion of the slave in the inventory, and the representation of him in her annual settlement as a part of the estate, and the possession of the entire property of the estate up to Mrs. G.’s resignation, do riot plainly and unequivocally speak her election. These acts may have all been done by her in her capacity of executrix. There is nothing which clearly shows that she ever asserted any right to any of the property as legatee and devisee. Up to the time of her resignation, the period for the presentation of claims against the estate had not expired. It is not likely that she knew, or could have ascertained with accuracy, the value of the estate, until that period expired. Until she was so informed, she was not bound to make an election; and the courts would be extremely slow to imply an election. Upon the facts before us, we cannot affirm that the complainant has, with a full knowledge of all the circumstances necessary to enable her to make a discriminating and judicious choice, elected to take under the will. The adjudged cases would not justify the implication of an election from such facts as are before us. — Wake v. Wake, 3 Brown’s C. C. 255; Hall v. Hall, 2 McCord’s Ch. 280; Driscoll v. Koger, 2 Des. 295 ; Upshaw v. Upshaw, 2 Hen. & Munf. 381; Pinckney v. Pinckney, 2 Rich. Eq. 218; English v. English, 2 Green’s Oh. 507; Dillon v. Parker, 1 Swanst. 359, 380.
It may be, that Mrs. Garrett, during the fifteen and a half months of her possession, held the property of the estate in her capacity of devisee and legatee, and, during that time, took to herself individually the use and accruing profits, without in anywise accounting therefor. But, if such facts exist, the onus was upon the defendant of showing them. The election was a defense brought forward by him ; and it will not be inferred in-the absence of the
The decree of the chancellor is reversed, and the, cause remanded.