election. Lamb, 14 B. 482; Woolridge v. Woolridge, Johns. 63; raises no when the is invalid. Where, however, there is no absolute gift in the first It does instance, but the original gift is subject to invalid limitations whole ap over and restrictions, the objects of the power must elect pointment between their rights under the power and the other benefits given them by the will. Tomkyns v. Blane, 28 B. 422. And generally election arises, where property subject Property subject to to a special power of appointment vested in the testator, a special is given by him to persons not the objects of the power power. when the latter receive benefits under the will. Whistler v. Webster, 2 Ves. Jun. 366. It must be presumed primâ fucie that a testator only What is a means to dispose of what is his own. disposition by a teswill tator of property the not his own. Therefore, even before the Wills Act, general words not be construed to apply to property not belonging to testator, though at the date of his will and his death he General may have no property of his own to which the words could words apply. Read v. Crop, 1 B. C. C. 492; Jervoise v. Jervoise, testator's 17 B. 566; Thornton v. Thornton, 11 Ir. Ch. 474. limited to own pro perty. in strict Nor will the fact that the devise is to uses in strict Devise settlement extend general words to more than the testator's settlement interest, though his devisable interest is only an estate pur autre vie. See Cosby v. Lord Ashdown, 10 Ir. Ch. only estate 219. The testator may of course show that he included lands not his own under the general words by describing them as lands in his own occupation. Honywood v. Foster, 30 B. 14. where tes tator has pur autre vie. in a par And if the devise be of property in a particular place, Property if there is any property of the testator answering the ticular description it will be confined to that. Rancliffe v. place. Purkyns, 6 Dow. 149; Maddeson v. Chapman, 1 J. & H. Property held in joint tenancy. When the testator is entitled in moieties. Gift of a house with So where a testator has transferred stock into the names of himself and his wife, a general gift of his stock, or even a gift of stock exactly the same in amount as that so transferred, will not put the wife to her election. Dummer v. Pitcher, 2 M. & K, 262; Poole v. Odling, 10 W. R. 337. To raise a case of election there must be a specific reference to the stock in question. Coates v. Stevens, 1 Y. & C. Ex. 66; Grosvenor v. Durston, 25 B. 97. The case is more difficult where the testator has a devisable interest in certain property, and the question arises whether he intended to give the whole property. 1. Where the testator is entitled in moieties: If the devise is of the testator's interest or property in a house or lands, only what belongs to him is intended to pass. Henry v. Henry, I. R. 6 Eq. 286. But if the gift is of a house by a particular description, a direction this is a sufficient indication of an intention to pass the to repair. whole house, at any rate if there is a direction to repair. Padbury v. Clark, 2 Mac. & G. 298; Howell v. Jenkins, 2 J. & H. 706. See Swan v. Holmes, 19 B. 471. When the testator is entitled to land subject to a charge. And the result is the same where there is no such direction. Fitzsimons v. Fitzsimons, 28 B. 417; Miller v. Thurgood, 33 B. 496; Wilkinson v. Dent, 6 Ch. 339. 2. Where land is subject to a charge, a devise of the land without more is a devise subject to the charge. Stephens v. Stephens, 3 Dr. 697; 1 De G. & J. 62; Henry v. Henry, I. R. 6 Eq. 286. On the other hand, if the testator repudiates the instrument creating the charge, and the dispositions of his will are inconsistent with that instrument, the property is intended to pass freed from the charge. Sadlier v. Butler, I. R. 1 Eq. 415. So, too, if the devise of the land is inconsistent with the charge, as if it be for a long term on trust to raise a sum immediately for payment of debts and legacies, the prior charge being itself secured by a long term. Blake v. Bunbury, 1 Ves. Jun. 514. testator is sion in 3. Where the testator has a reversionary interest in land, When the limited to take effect after the decease of persons to whom entitled to he gives a life interest in those lands, so that the will would the reverbe of no effect if it were intended only to deal with the lands. reversion, and there are besides powers of leasing and management implying actual enjoyment, the intention must have been to dispose of the whole property. Welby v. Welby, 2 V. & B. 187; Wintour v. Clifton, 21 B. 447; 8 D. M. & G. 641. So, too, a direction that an annuity is to be paid to a person for life out of lands of which the testator has only the reversion shows an intention to dispose of the whole. Usticke v. Peters, 4 K. & J. 437. But if in a doubtful case the testator expressly confirms the settlement by which the reversion in the property in question is limited to him, only his own interest will be held to be intended to pass. Rancliffe v. Parkyns, 6 Dow. 149. amounts to an inten dispose of from dower 4. The question whether the testator has shown an What intention to dispose of his real estate, freed from the widow's right to dower or freebench, is of importance only, with tion to regard to the former, in the case of widows married prior lands free to the 1st January, 1834; and with regard to the latter, in or freethe case of wills not coming under the Wills Act; see the Dower Act, 3 & 4 Will. 4, c. 105, ss. 4 and 14. Lacey v. Hill, 19 Eq. 346. As to freebench, it was decided in Lacey v. Hill, supra, that, by virtue of the 3rd section of the Wills Act, a devise of copyholds, though not surrendered to the uses of the will, is sufficient to bar the widow's claim. The point does not appear to have been raised in Thompson v. Burra, 16 Eq. 592. bench. In cases, however, under the old law, the widow is, of Gift in lieu of dower what it includes. What is inconsistent with the widow's right to dower. Personal use by the devisee. Devise in definite propor tions. Trust to Fell and divide. Powers of leasing. course, put to her election if a legacy is given to her expressly in lieu of dower. Sopwith v. Maughan, 30 B. 235. A legacy in lieu of dower would, it seems, also include freebench and dower out of lands which the testator had no power to devise. Nottley v. Palmer, 2 Dr. 93; Walker v. Walker, 1 Ves. Sen. 54. See Wetherell v. Wetherell, 4 Giff. 51. If the dispositions of the will are inconsistent with the widow's right to have her dower set out by metes and bounds, she will be put to her election. This will be the case : a. If a house, being a portion of the property devised, is given for the personal use and occupation of the devisee. Miall v. Brane, 4 Mad. 119; Roadley v. Dixon, 3 Russ. 192. b. A devise of realty in definite proportions between the widow and others would not itself show that the widow was not intended to take her dower. But if the property is particularised so as to show that the testator is giving not merely his estate, but the whole property itself, this is sufficient to show that dower was meant to be excluded. Reynolds v. Torin, 1 Russ. 129; Chalmers v. Storril, 2 V. & B. 222, as explained in Bending v. Bending, 3 K. & J. 257. See Roberts v. Smith, 1 S. & St. 513. In Dickson v. Robinson, Jac. 503, the will is not stated. A direction that the proceeds of sale are to be divided in certain shares will not have this effect. Ellis v. Lewis, 3 Ha. 314. c. If powers of leasing are given, even though they be only 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. sale. But a trust for sale will not have this effect, unless the Trust for 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. annuity The gift of an annuity to the wife, charged upon the Gift of property subject to dower, will not put her to election. charged on Dowson v. Bell, 1 Keen, 761; Harrison v. Harrison, 1 land subKeen, 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. ject to dower. 5. Under the old law, by which a testator was unable to When the heir is put dispose of lands acquired after the date of his will, the to election. heir was nevertheless put to his election if there was a clear intention to dispose of them. tion of It is clear that such an intention is sufficiently indicated Disposi where the testator draws a distinction between lands to afteracquired which he is and lands to which he may be entitled at his lands bedecease. Schroder v. Schroder, Kay, 578; 24 L. J. Ch. for the 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 afteracquired 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. Wills Act. Under the old law, where the will was insufficiently No elec executed to pass realty, the heir was not put to his elec- the will tion when |