CHAPTER XXV. ELECTION. The Doctrine of Election. "WHERE an intention is clearly demonstrated to give a person property which does not really belong to the testator, there is nothing else remaining to be done, with reference to election, than to see who is in possession, and who is the real owner of the property; and if you find him, who is the real owner of the property at the same time taking a benefit under the will which has erroneously endeavoured to dispose of his property, then he must give effect to that intention, though founded in error, and give it full effect by either abandoning all his interest under the will or making compensation to the extent of the value of the disappointed intention of the testator." From Cooper v. Cooper (1874), 7 H. L. 53. It was at one time thought that the beneficiary, whose property the testator has affected to give away, and who also received some benefit under the testator's will, was bound to give effect to the testator's disposition, or take nothing under the will. Streatfield v. Streatfield (1735), Cas. t. Talbot, 176. But it is now quite settled that compensation is the basis of the doctrine. Cooper v. Cooper, above. The doctrine may be explained thus:-Where, upon the death of a testator a person A. is found to be the true owner of property X, which the testator has (wittingly or unwittingly) affected by his will to give to B., and at the same time the testator has by his will given to A. some other benefits Y of which the testator was free to dispose, a case of election arises, and A. must elect (choose). He has two courses open to him :— (1) He may elect to "take under the will," that is to say, he gives up his own property X to B., and takes Y, thereby confirming the testator's dispositions; and the matter is then at an end; or (2) He may elect to "take against the will," that is to say, he refuses to give up X. Now B. cannot claim Y itself, since he has no title to it under the will. To meet this case, therefore, the Court applies a doctrine of compensation (“The engrafted doctrine of compensation applies where a person elects to take against the instrument," Ker v. Wauchope (1819), 1 Bli. 1), and says, in effect, that A., who refuses to give up X, shall not take Y under the will without making compensation to B. for the value of A.'s property X, which the testator had intended to give to B., but which it was out of the power of the testator to give. Now A., having refused to give up X, has still two subsidiary courses open to him (a) He can allow B. to be paid the value of X out of Y and take the balance of Y himself, if there is a balance; or (b) He can take Y himself upon paying to B. the value of X out of any fund he pleases, e.g., out of his own pocket. See Pickersgill v. Rodger (1876), 5 C. D. 163. Looking at the matter from B.'s point of view, he gets X (which the testator tried to give him) if A. chooses to give it up, i.e., if A. elects to "take under the will"; but if A. refuses to give it up, i.e., if he elects to "take against the will," B. can only claim the value of X, and he can only claim it to the extent of the value of Y, so that if the value of Y is less than the value of X, he cannot get the full value of what the testator intended to give him. Where both X and Y consist of money or ordinary securities, the distinction between these courses becomes practically immaterial; but where X and Y are, or either of them is real property, the value of the alternatives which are open to A. becomes obvious. Stating the foundation of the doctrine again, thus ::-a testator affects to give to B. a property X which really belongs to A., but at the same time he gives to A. other benefits Y out of his (the testator's) own property. A case of election arises. Example 1.-(Taking under the will). X is a sum of Consols. Y is real estate or Consols more valuable than X. A. elects to "take under the will"; he gives up X, the Consols, to B. and takes Y, thus confirming the testator's dispositions. Example 2.—(Taking against the will). X is a sum of Consols. Y is real estate less valuable than X. A. elects to "take against the will," that is, he refuses to give up X, and leaves B. to get the value of X out of Y. In this case B. takes the whole of Y. Example 3.-(Taking against the will). Y is Consols more valuable than X. A. elects to "take against the will," that is, he refuses to give A. can pay B. the value of X out of Y and take the balance of Y himself. up X. Example 4.-(Taking against the will). X and Y are both real estate. A. elects to "take against the will," that is, he refuses to give up X. He can take Y in addition on paying to B. the value of X out of any funds or in any manner he likes. See generally Whistler v. Webster (1794), 2 Ves. 367; Cooper v. Cooper (1874), 7 H. L. 53; and note to Gretton v. Haward (1818), 1 Sw. p. 433. The person who has to elect (A.) has a right to full information as to his legal position under the will, and as to the value of the properties, &c., before he need elect; and a reasonable time will be given him in which to make up his mind. And, further, if it can be shown that he elected under a misapprehension of his rights, he will be allowed to rescind the choice, to restore all parties to the status quo ante by repayment of monies paid, &c., and to elect afresh. But although A. can be forced to elect, neither B. nor the Court can control A.'s free and unfettered choice or election; the Court will, however, enforce B.'s rights as soon as it appears what they are as the result of A.'s election. Finally B.'s right to compensation passes to his assignees. Rogers v. Jones (1876), 3 C. D. 688. The state of facts existing at the testator's death is alone to be looked at in order to determine whether a case of election arises. In re Lord Chesham (1886), 31 C. D. 466. For example, a testator devises A.'s land X to B., but A. takes no benefit under the will; testator also bequeaths a legacy to C., who, after the testator's death, and before the distribution of the estate, acquires X from A. C. is not put to his election, for at the testator's death he was not the true owner of X. Grissell v. Swinhoe (1869), 5 Eq. 291. If C. had 'acquired A.'s land before the testator's death, and had M.W. 16 also received the legacy under the will, he would have had to elect. Again, if X does not happen to belong to one person A. at the testator's death, but to three persons, C., D. and E. in equal thirds, and C. and D. receive legacies while E. receives nothing, C. and D. will each have to elect between one-third of X and their respective legacies, but E. does not have to elect. And if, in the case supposed, X has devolved upon C., D. and E., burdened with debts, funeral and testamentary expenses, the value of X must be considered, for the purpose of election, to be reduced by such amount. Cooper v. Cooper, ubi supra. The doctrine of election (and consequently that of compensation) is only applicable as between a gift under a will and a claim dehors the will and adverse to it, and not as between one clause in a will and another clause in the same will. Carver v. Bowles (1831), 2 R. & M. 304; Wollaston v. King (1863), 8 Eq. 165. For example, a testatrix had, under a settlement, a special power of appointing certain funds between A. and C., who were the persons.to take in default of appointment. She invalidly appointed part X of the fund to B., who was not an object, and validly appointed specific sums to A. and C., to whom also she gave benefits Y out of her own property. There was, however, a general residuary appointment of the fund to A. and C., subject to all former appointments. Held, that A. and C. did not have to elect between X and Y, for the residuary appointment carried to them the amount X invalidly appointed to B., and their claim was, therefore, entirely under the will. Had there been no residuary appointment, they must |