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course, put to her election if a legacy is given to her expressly in lieu of dower. Sopwith v. Maughan, 30 B.

v 235, what it

A legacy in lieu of dower would, it seems, also include includes.

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. Wetherel, 4

Giff. 51. What is in If the dispositions of the will are inconsistent with the consistent with the widow's right to have her dower set out by metes and widow's right to

bounds, she will be put to her election. This will be the dower. Personal a. If a house, being a portion of the property devised, use by the devisee. is given for the personal use and occupation of the devisee.

Miall v. Brane, 4 Mad. 119; Roadley v. Dixon, 3 Russ.

192. Devise in b. A devise of realty in definite proportions between definite

the widow and others would not itself show that the proportions.

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. Trust to A direction that the proceeds of sale are to be divided soll and divide.

in certain shares will not have this effect. Ellis v. Leucis,

3 Ha. 314. Powers of

c. If powers of leasing are given, even though they be leasing.

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.

sale.

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.

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.

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 sub

ject to Keen, 765; Holdich v. Holdich, 2 Y. & C. C. 18.

dower. Nor will a devise of a portion of the testator's real estate to his widow prevent her from claiming dower in

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 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.

It is clear that such an intention is sufficiently indicated Disposiwhere the testator draws a distinction between lands to after.

acquired which he is and lands to which he may be entitled at his lands be.

fore the decease. Schroder v. Schroder, Kay, 578; 24 L. J. Ch.

Wills Act. 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. Under the old law, where the will was insufficiently No elec

tion when executed to pass realty, the heir was not put to his elec- the will

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invalid to tion between realty attempted to be disposed of by the pass realty.

will and benefits given to him, so much of the will as attempted to dispose of realty being considered nonexistent. Sheldon v. Godrich, 8 Ves. 481.

So, too, when under the old law the testator was incompetent to dispose of property from infancy or coverture no case of election arose. Hearle v. Greenbank, 1 Ves. 298; 3 Atk. 697, 716; Rich v. Cockell, 9 Ves. 370.

But the case is different where the devise is upon con

dition. Boughton v. Boughton, 2 Ves. Sen. 12. Foreign These rules do not, however, apply to a foreign heir, hrir.

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. 763; Maxwell v. Maxwell, 16 B. 106; 2 D. M. & G. 705; Maxwell v. Hyslop, 4 Eq. 407.

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. Will of It would seem that no case for election arises on the married woman.

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.

v To raise The principle of election being compensation, in order election there must to put persons whose property the testator has given be a gift of free

to their election, there must be a gift to them of

away disposable free disposable property out of which compensation may property to the per be made. Thus, an appointment by the testator of property, subject to a special exclusive power of appoint

sons whose

property ment, to some objects of the power whose property the is given testator attempts to dispose of, is not a gift of free dis- away. posable property, in respect of which they will be bound to elect. Fowler's Trust, 27 B. 362; Aplin's Trust, 13 W. R. 1062.

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.

CHAPTER XIII.

WHO MAY BE DEVISEES OR LEGATEES.

1. Corporations.

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

And it seems the stat. 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. Bp. of London, 2 W. Bl. 1182; see Inc. Soc. v. Richards, 1 Dr. & War. 258.

The Wills Act repeals the statutes 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 the 34 & 33 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 Public Companies' Acts, 25 & 26 Vict. c. 89, sec. 18, 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; Thompson v. Shakespear, Joh. 612; 1 D. F. & J. 399;

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