confirm the appointment of such guardian or guardians, who shall thereupon be authorized and empowered so to act as aforesaid, or make such other order in respect of the guardianship as the court shall think right.

(3) Authorises the guardians, if they cannot agree, to apply to the Court for directions.

Chap. XI.

4. Every guardian in England or Ireland under this Act shall Powers of have all such powers over the estate and the person, or over the guardian. estate (as the case may be) of an infant as any guardian appointed by will or otherwise now has in England under the Act 12 Car. II. c. 24, or in Ireland under the Act of the Irish Parliament 14 & 15 Car. II. c. 19 or otherwise.

A testamentary appointment of a guardian by the mother is not invalid because the guardian is not expressed to be appointed jointly with the father. In re G., (1892) 1 Ch. 292.

III. RELIGIOUS EDUCATION.

education.

A father is entitled to direct the religion in which he wishes Religious his children to be brought up after his death, and this right is not affected by the Guardianship of Infants Act, 1886. In re Scanlan, 40 Ch. D. 200.

But the cases show, that less weight will be given to the wishes of a deceased than to those of a living father, and that in the former case the Court will not interfere in favour of the religion selected by the father if he has done anything amounting to an abandonment of his rights, or if the interference would not be for the benefit of the children. Hawksworth v. Hawksworth, 6 Ch. 539; Andrews v. Salt, 8 Ch. 622; In re AgarEllis; Agar-Ellis v. Lascelles, 10 Ch. D. 49; 24 Ch. D. 317 ; In re Clarke, 21 Ch. D. 817; In re Walsh, 13 L. R. Ir. 269; In re Nevin, (1891) 2 Ch. 299; In re McGrath, (1893) 1 Ch. 143; In re Magees, 31 L. R. Ir. 513.

A testator may, there can be no doubt, appoint a person, Appointment agent or solicitor to his estate in such a way as to entitle the

of agent or solicitor.

Chap. XI.

person to be employed. Hibbert v. Hibbert, 3 Mer. 681; Williams v. Corbet, 8 Sim. 349.

But a request that a particular person may be employed as manager or receiver, or a declaration that a particular person is to be the solicitor to the estate, does not impose on the trustees a duty to employ him. Shaw v. Lawless, 5 Cl. & F. 129; Finden v. Stephens, 2 Ph. 142; Belaney v. Kelly, 19 W. R. 1171; Foster v. Elsley, 19 Ch. D. 518.

Direction to administer the estate in an action.

V.-ADMINISTRATION ACTION.

A direction by the testator to his trustees to commence an action for the administration of his estate by the Court, does not deprive the Court of its discretion to refuse an order, though weight will be given to it by the Court in determining whether an order should be made. In re Stocken; Jones v. Hawkins, 38 Ch. D. 319.

CHAPTER XII.

ELECTION.

arises.

A TESTATOR can of course only dispose of his own property by Chap. XII. will; however, by means of the doctrine of election, he may in many cases in effect dispose of the property of others. Thus, When election where a testator disposes of the property of a person, and at the same time gives that person property of his own by his will, the person whose property is given away is bound to elect whether he will keep his own property and surrender an equivalent value of the benefits given him by the will, or whether he will take entirely under the will. Rogers v. Jones, 3 Ch. D. 688; Re Carpenter; Carpenter v. Disney, 51 L. T. 773.

The compensation, which has to be made by a person electing to take against the will, is a charge upon the benefits he receives under the will, so that if he takes real estate under the will and dies before making compensation, the compensation is a charge on the land, and is not payable out of his personal estate. Pickersgill v. Rodger, 5 Ch. D. 163.

A

person electing to take under the instrument must do all in his power to give effect to the instrument, but if it is out of his power to give effect to it, he is not bound to make compensation to persons who do not get the benefits which the testator intended them to take.

Thus, where chattels are settled as heirlooms with a mansion house, and a testator attempts to dispose of the chattels, and gives benefits to the tenant for life of the mansion house, the tenant for life taking under the will is not bound to compensate the legatees of the chattels, as he has no disposable interest in the chattels apart from the mansion house. In re Lord Chesham; Cavendish v. Dacre, 31 Ch. D. 466.

Chap. XII.

Legatee must

elect for or against the whole instrument, will

and codicils.

Unless the

testator limits
the election
to some

particular
benefit.

Gift in satisfaction of a

debt will not

limit election

to that par ticular gift.

Election arises only between a title under

and a title dehors the will.

No election

where one of two gifts is

onerous.

Unless there is an intention that the legatee is to take all or

none.

The person electing must elect to take under or against the whole instrument, will and codicils, and not merely that part of it which disposes of his own property. Cooper v. Cooper, L. R. 6 Ch. 15; ib. 7 H. L. 53.

Two contemporaneous instruments, e.g., a deed under a power and a will, which effectuate one entire disposition, are, for the purposes of raising an election, treated as one instrument. Kirkham v. Smith, 1 Ves. Sen. 258; Bacon v. Cosby, 4 De G. & S. 261; In re Woodleys, 29 L. R. Ir. 304.

If, however, there is a gift expressly in lieu of dower, or the testator declares that the legatee is to elect only between one of the benefits given him by the will and his own property, election will be confined to that. Walker v. Inge, Rom. N. of C. 95; East v. Cook, 2 Ves. Sen. 30, explained in Wilkinson v. Dent, 6 Ch. 339; Coote v. Gordon, I. R. 11 Eq. 180.

But a gift, though declared to be in satisfaction of any sums. in which the testator may be indebted to the donee at the time of his decease, or in satisfaction of a rent charge, the object being testamentary bounty, will put the legatees to their election to take under or against the whole will. Wilkinson v. Dent, 6 Ch. 339; see, too, Coutts v. Acworth, 9 Eq. 519. Election arises only between a gift by the will and something belonging to the legatee by a title dehors the will. Thus, no

case for election arises where a testator has given a legatee several legacies, some of which are onerous. In such a case the legatee may reject the onerous legacies without forfeiting the others. Andrew v. Trinity Hall, 9 Ves. 525; Moffett v. Bates, 3 Sm. & G. 468; Warren v. Rudall, 1 J. & H. 1; Aston v. Wood, 22 W. R. 893; 43 L. J. Ch. 715.

And a legatee of a house subject to a mortgage and of an annuity is not bound to make up the interest on the mortgage if the house is insufficient to satisfy the mortgage debt. Syer v. Gladstone, 30 Ch. D. 614.

But, if the onerous and beneficial legacies are given together as one entire gift, or there is an intention that the legatee shall not take one without the other, be must take all or none. Green v. Britten, 42 L. J. Ch. 187; Talbot v. Lord Radnor, 3 M. & K. 252; Guthrie v. Walrond, 22 Ch. D. 573; In re Hotchkys;

Freke v. Calmady, 32 Ch. Div. 408; see Fairtlough v. Johnstone, Chap. XII. 16 Ir. Ch. 442.

between two

And upon the same principle election does not arise as No election between two clauses in the same will, the title to both the clauses of a properties between which the legatee would have to elect being derived under the will. Wollaston v. King, 8 Eq. 165; Wallinger

v. Wallinger, 9 Eq. 301.

will.

Devises and bequests upon condition must be distinguished Devise upon from cases of election. Cooper v. Cooper, L. R. 6 Ch. 15; ib. 7 H. L. 53.

In the latter it is immaterial whether the testator knew or not that the property of which he was disposing was not his own, in the former he must have known that it was not. The characteristic of the former is forfeiture, of the latter compensation. Thus a devise to A. on condition of his conveying certain property of his own, would be a condition and not a case for election. See Middleton v. Windross, 16 Eq. 212; Boughton v. Boughton, 2 Ves. Sen. 12; Fearon v. Fearon, 3 Ir. Ch. 19. In order to raise a case for election there must be on the face of the will a disposition on the part of the testator of something belonging to a person who takes an interest under the will.

condition distinguished from election.

To raise election the testator must

actually dispose of something not his own.

Appoint

An appointment of property in supposed exercise of a power, which does not exist, raises a case of election as against the ment under person entitled to the property. In re Brooksbank; Beauclerk power. v. James, 34 Ch. D. 160.

The intention to dispose of something not his own must appear on the face of the will, and evidence is not admissible. to show that the testator considered certain property as his own, and intended to pass it by words not directly referring to it; see Pole v. Lord Somers, 6 Ves. 322; Doe v. Chichester, 4 Dow. 76, pp. 89, 90; Re Booker; Booker v. Booker, 54 L. T. 239; 34 W. R. 346.

non-existing

belief or

An erroneons belief on the part of the testator, that certain Erroneous property has been disposed of in a particular way, even though recital will he expressly declares that he has made his will on the faith of not raise it, will not raise an election. Langston v. Langston, 21 B. 552; Dashwood v. Peyton, 18 Ves. 27; Box v. Barrett, 3 Eq.

election.