from year to year. Reynard v. Spence, 4 B. 103; O'Hara v. Chaine, 1 J. & Lat. 662; Parker v. Sowerby, 1 Dr. 488; 4 D. M. &. G. 321; Lowes v. Lowes, 5 Ha. 501; Hall v. Hill, 1 Dr. & War. 94; Linley v. Taylor, 1 Giff. 67; see Warbutton v. Warbutton, 2 Sm. & G. 163.

And it seems that a power of leasing is inconsistent with the widow's right to freebench, though it may not be the custom of the manor to set out freebench by metes and bounds. Thompson v. Burra, 16 Eq. 592.

Chap. XII.

But a trust for sale will not have this effect, unless the Trust for sale. property given in trust for sale is specifically directed to include something such as a house, the whole of which the testator must have intended to be subject to the trusts. Gibson v. Gibson, 1 Dr. 42; Bending v. Bending, 3 K. & J. 257; Parker v. Downing, 4 L. J. Ch. 198.

The gift of an annuity to the wife, charged upon the property subject to dower, will not put her to election. Dowson v. Bell, 1 Kee. 761; Harrison v. Harrison, 1 Kee. 765; Holdich v. Holdich, 2 Y. & C. C. 18.

Nor will a devise of a portion of the testator's real estate to his widow prevent her from claiming dower in the rest. Lawrence v. Lawrence, 2 Ver. 365; 1 Eq. C. Ab. 218, pl. 2; 1 Freem. 234; 3 B. P. C. 484.

5. Under the old law, by which a testator could not by a will dispose of lands acquired after the date of the will, the heir was nevertheless put to his election if there was a clear intention to dispose of them.

Gift of annuity charged

on land subject to dower.

When the

heir is put to election.

lands before

It is clear that such an intention is sufficiently indicated Disposition of where the testator draws a distinction between lands to which after-acquired he is entitled and lands to which he may be entitled at his the Wills Act. decease. Schroder v. Schroder, Kay, 578; 24 L. J. Ch. 510; Hance v. Truwhitt, 2 J. & H. 216.

And it seems the words "land which I shall die possessed of" sufficiently indicate an intention to pass after-acquired lands, and not merely so much of the lands belonging to the testator at the date of his will as shall remain at his death. Churchman v. Ireland, 1 R. & M. 250, overruling Back v. Kett, Jac. 534.

Chap. XII.

No election when the will invalid to pass realty.

Foreign heir.

Will of married

woman.

To raise election there

of free disposable property to the

Under the old law, where the will was insufficiently executed to pass realty, the heir was not put to his election between realty attempted to be disposed of by the will and benefits given to him, so much of the will as attempted to dispose of realty being considered non-existent. Sheddon v. Godrich, 8 Ves. 481.

So, too, when under the old law the testator or testatrix was incompetent to dispose of property from infancy or coverture no case of election arose. Hearle v. Greenbank, 1 Ves. Sen. 298; 3 Atk. 696; Rich v. Cockell, 9 Ves. 370; In re De Burgh Lawson; De Burgh Lawson v. De Burgh Lawson, 34 W. R. 39.

But the case is different where the devise is upon condition. Boughton v. Boughton, 2 Ves. Sen. 12.

These rules do not, however, apply to a foreign heir, and therefore if there is clear evidence of an intention to dispose by will of land in Scotland or elsewhere which cannot be so disposed of, the heir is put to his election between the land and the benefits he may take under the will. Brodie v. Barry, 2 V. & B. 127; Dewar v. Maitland, L. R. 2 Eq. 834.

It must be clear that land in Scotland or elsewhere is referred to, and therefore general words will only be held to refer to those lands upon which the will can take effect. Johnson v. Telford, 1 R. & M. 244; Allen v. Anderson, 5 Ha. 163; Maxwell v. Maxwell, 16 B. 106; 2 D. M. & G. 705; Maxwell v. Hyslop, 4 Eq. 407; Baring v. Ashburton, 54 L. T. 463.

But a devise of " all my real estate in any part of the United Kingdom or elsewhere" has been held sufficient to put the Scotch heir to election. Orrell v. Orrell, 6 Ch. 302.

It would seem that no case for election arises on the part of next of kin, where the will of a married woman is operative at the time it was made, but afterwards becomes inoperative. Blaiklock v. Grindle, 7 Eq. 215,

The principle of election being compensation, in order to put must be a gift persons whose property the testator has given away to their election, there must be a gift to them of free disposable property out of which compensation may be made. Thus an appointment by the testator of property, subject to a special exclusive power of appointment, to some objects of the power whose

persons whose property is

given away.

property the testator attempts to dispose of, is not a gift of free Chap. XII. disposable property, in respect of which they will be bound to elect. Fowler's Trust, 27 B. 362; Aplin's Trust, 13 W. R. 1062.

And upon the same principle the life interest of a married woman subject to a restraint upon anticipation is not available to compensate persons disappointed by her election. In re Vardon's Trusts, 31 Ch. D. 275, following Smith v. Lucas, 18 Ch. D. 531; In re Wheatley, 27 Ch. D. 606, and reversing Willoughby v. Middleton, 2 J. & H. 344. See, too, Hamilton v. Hamilton, (1892) 1 Ch. 396.

Upon the question, whether, where a stranger appoints a testamentary guardian to children and gives their father a benefit under the will, the father is put to his election, so that he cannot after receiving the legacy withhold compliance with the condition for the education of his children, see Blake v. Leigh, Amb. 306; De Manneville v. De Manneville, 10 Ves. 52, 63.

T.W.

H

CHAPTER XIII.

Chap. XIII. 1. Corporaions.

WHO MAY BE DEVISEES OR LEGATEES.

1. PRIOR to the Wills Act a devise of lands to a corporation was void, bodies corporate being excepted out of 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5, sect. 5.

And it seems that 43 Eliz. c. 4 had no effect in passing the legal estate where the devise was to a corporation existing for charitable purposes, notwithstanding Benet Coll. v. Bishop of London, 2 W. Bl. 1182; see Incorp. Soc. v. Richards, 1 Dr. & War. 258.

The Wills Act repeals 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5, but does not expressly authorise devises to corporations, and since the inability of corporations to hold lands was created by various statutes antecedent to 34 & 35 Hen. 8, c. 5, the mere repeal of that statute does not give validity to devises to corporations.

Since the Wills Act, however, the inability is not in the power of devising, but in the capacity of corporations to take, and it would seem to follow that corporations with power to hold land, such as companies incorporated under the Companies Act, 1862 (25 & 26 Vict. c. 89), might take by devise except so far as objections might arise on the ground of perpetuity. The question is, however, not likely to be of much practical importance; see Incorp. Soc. v. Richards, 1 Dr. & War. 258; Thomson v. Shakespear, Joh. 612; 1 D. F. & J. 399; Carne v. Long, 2 D. F. & J. 75 ; Cocks v. Manners, 12 Eq. 574; Chaudière Mining Company v. Desbarats, L. R. 5 P. C. 277.

A trade union registered under the Trade Union Acts, 1871 and 1876, cannot take land by devise. In re Amos; Carrier v. Price, (1891) 3 Ch. 159.

2. By the Naturalization Act, 1870 (33 Vict. c. 14) real and Chap. XIII. personal property of every description, except a British ship, 2. Aliens. may be taken, acquired, held, or disposed of by an alien in

the same manner in all respects as by a natural-born British subject.

As to what constitutes an alien, see De Geer v. Stone, 22 Ch. D. 243.

It has been decided that the Act is not retrospective. And apparently it does not apply to a will made before the passing of the Act, though not coming into operation till afterwards. Sharp v. St. Sauveur, 7 Ch. 343.

In cases before the Act land devised to an alien remains in him till office found, when it devolves to the Crown, and this is the case whether the land is devised to trustees or not. Barrow v. Wadkin, 24 B. 1; Sharp v. St. Sauveur, 7 Ch. 343.

An alien could always take the proceeds of land devised on trust for sale. Du Hourmelin v. Sheddon, 1 B. 79; 4 M. & Cr. 525.

3. Formerly personal property vested in a felon after his 3. Felons. conviction, during the period of his punishment or before his pardon, was forfeited to the Crown. Roberts v. Walker, 1 R. & M. 752.

But property not vested in a felon till after he had undergone his punishment, or received a pardon, was not forfeited. Stokes v. Holden, 1 Kee. 145; Barnett v. Blake, 2 Dr. & S. 117; Gough v. Davies, 2 K. & J. 623; Re Thompson's Trusts, 22 B. 506; Re Harrington's Trust, 29 B. 24.

Now, by 33 & 34 Vict. c. 23, forfeiture and escheat for treason, felony, and suicide are abolished; and by sect. 10 all the real and personal property, including choses in action, to which the convict was at the time of his conviction, or shall afterwards become entitled, vests in an administrator appointed under the Act.

By the Civil Procedure Acts Repeal Act, 1879 (42 & 43 Vict. c. 59), sect. 3, outlawry in consequence of any civil proceeding is abolished.

4. By sect. 15 of the Wills Act, a legacy given to an attesting 4. Attesting

witnesses.