foreign property, for no case of election is raised where the testator merely says "my son A. will be entitled to the fund settled on my marriage, and I therefore leave him so much less than my son B.," though it should turn out that A. and B. were entitled to the settled fund is equal shares.1

But if the intention to dispose of the foreign property is clear, it is immaterial whether the testator knew that it was not his own or fancied that it was his own.2 If the owner of the foreign property has conveyed or sold it before the death of the testator, he must still elect between its value and the gifts given by the will.3

A testator is not readily presumed to give away other people's property, and the difficulty of showing that he intended to include such property in a general bequest or devise is very great. Certainly, parol evidence outside the will will not be admitted to show an intention to include foreign property in general words. The same difficulty will be met in endeavouring to show that a testator intended to bequeath the whole of property in which he had only a partial interest, for the Court leans to the construction that a man gives only that which is his.5 But even in these cases the words of the will may be such as to show the intention clearly, and therefore to raise a case of election.

The testator may limit the necessity for election, as if he gives A. and B. to one legatee, and gives C., which is the property of that legatee, to another legatee, declaring that the former shall elect between B. and C. In this case the former will take A., however he may elect regarding the other gifts.

If the donee of a power appoints to a stranger to the power, and gives property of his own to the person entitled in default

1 Box v. Barrett, L. R. 3 Eq. 244.

2 Whistler v. Webster, 2 Ves. jun. 370.

3 Middleton v. Windross, L. R. 16 Eq. 212.

4 Clementson v. Gaudy, 1 Keen, 309.

5 Maddison v. Chapman, 1 J. & H. 470.

East v. Cook, 2 Ves. 30.

of appointment, the appointment is void, but the person entitled in default must allow it to stand or compensate the appointee out of the benefits he takes under the will,1 and the case is the same if the donee of this power wrongly delegate his power to another, and that other appoints to a stranger. But no case of election is raised when the donee of the power makes a good appointment, and then proceeds to direct the appointees to transfer the property appointed to strangers, and the Court will not aid an attempt to create a perpetuity by raising a case of election.2

“The rule as to election is to be applied between a gift under a will and a claim dehors the will and adverse to it, and is not to be applied as between one clause in a will and another clause in the same will;" that is to say, a legatee will not be called upon to elect so long as he claims everything in question from the will itself. But it is otherwise where there are two instruments, and the legatee claims his legacy under the will, and at the same time to retain, e.g., his share under his parents' marriage settlement.

The doctrine is applicable to cases in which there is a want of capacity to bequeath, as where the testatrix is a feme covert. And express words in the will compel the widow to elect between the gifts left to her and her dower. But she was not 4 compellable to elect where, without such express direction, the testator devised to her part of his lands subject to dower, or gave her other gifts, and devised the whole or part of those lands to others. She might usually take the gift and claim dower in the lands not dower-barred. But the many cases on this subject are of less importance now since the Dower Act (3 & 4 Will. IV. c. 105), section 9 of which provides "that where a husband shall devise any land out of which his widow would be entitled to dower if the same were not so devised, or any estate or interest therein to or for the benefit of his widow, such widow

1 Whistler v. Webster, 2 Ves. jun. 367.

2 Woolaston v. King, L. R. 8 Eq. 165.

3 Ibid, per James, L.J. 4 Lawrence V. Lawrence, 2 Vern. 365.

Where several executors or administrators are dee they may plead different defences, and judgment may go a one or more of them, and in favour of the others. They of them may plead every defence which the deceased, if livn might have pleaded, and they may also set up several dete peculiar to persons sued in their representative capacity. I has been held that unless where the plaintiff sets up tha devastavit has been committed, an executor cannot pleau own bankruptcy.1 The defendant may plead ne unques care and that he has never administered as executor; that is, the is not executor or administrator, and upon that the pla must prove that he is, by calling for production of the pro or letters of administration, and proving them, if not prod: by secondary evidence, and showing the identity of the defend. with the person named executor or administrator therein, o showing that the defendant has made himself executor de tort. The defendant who succeeds upon this plea will be judgment, but of course the plaintiff may recover against f other defendants who can make no defence of that or any oth kind. An administrator whose letters of administration hav been revoked may plead the revocation, but he should state a prove that while administrator he fully administered all t assets which he received, or accounted for them to his snecessor.2

As a general judgment against a legal personal representative is conclusive against him that he has assets to satisfy it, if a · executor or administrator has not assets to satisfy a creditor's demand, following a due course of administration, he shoul. plead plene administravit, or plene administravit præter, a certain sum, and riens ultra. In the former plea he will deny that he has any of the goods of the deceased to administer, or had any at the beginning of the action or since; and if the defendant be an executor's executor he will add that his testator fully administered, or that if the latter committed a

1 Serle v. Bradshaw, 2 Cr. & M. 148.

2

Packman's Case, 6 Co. 182.

nterest before the death of

ants and remainder-men, parate right of election,2 tween. The Court will necessary accounts to be ist, allow him to institute

election can only be imhe had a right to elect, eh amount to election, as ot easily be defined. Every nces. But if a donee does

for election by the will, e against the will, and in onee binds his represen

or an infant, an inquiry of the donee's advantage. the donee dies without Watkins, the testator left

discharge of the debt days after the testator, Her heir at law contended

take under the will, and emed to have elected to or the gift exceeded the decided for the heir at er of the gift, but with arcely yet be regarded as

quality in the distribution therefore inclines against ven rise to the doctrine

We v. Fytche, L. R. 7 Eq. Kay & J. 473.

shall not be entitled to dower out of or in any land of her said husband, unless a contrary intention shall be declared by his will." Section 10 also enacts "that no gift or bequest made by any husband to or for the benefit of his widow of or out of his personal estate, or of or out of any of his land not liable to dower, shall defeat or prejudice her right to dower unless a contrary intention shall be declared by his will."

It often happens that a husband makes a provision for his wife, expressing it to be in lieu of dower or in lieu of thirds at common law, or both, and gives the remainder of his property to others. If the gifts of the remainder wholly or partially fail, a curious difference is to be noticed. If the gift be of realty and it fail, the heir takes the lapsed devise, and the widow cannot claim her dower out of it, unless she elect to surrender the provision. This is perhaps a relic of the favour of old shown to the heir. But if the gift which fails be of personalty, the wife is not compellable to elect, and she may keep her provision and claim her share against the next of kin of the property as to which there is an intestacy.1

If a part-owner of property devise or bequeath the property specifically (secus, if in general terms), and give other benefits to the other part-owner, the latter must elect.2 But no case of election is raised where property is given, and the testator gives other benefits to an incumbrancer upon the property, unless the intention is clearly expressed. Nor does the doctrine apply to a creditor taking a gift under the will, and seeking payment of his debt out of property given by the testator to another.1

3

Two important cases have lately decided that the doctrine is inapplicable where a donee under the will claims derivatively, as the successor in interest, of one who took against the will, as where a husband takes under a will and his wife takes against it and then dies. In such a case the husband may keep both properties. But it is otherwise if the person claiming deriva