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Melick and wife v. Darling.

ence.

applied to the devises to his grandsons, Patrick Morgan and Will. iam Darling, in the first part of the will. Other clauses of the will clearly show that the testator understood these words as con. veying a fee. 2. The situation and circumstances of the testator, and the circumstances of bis property, go to confirm this infer

There is nothing in the will tending to show that the testator supposed he was leaving any part of bis estate undisposed of by bis will.

On this question we refer the court to Smith v. Berry et al., 8 Ohio, 365. This authority we think decisive of the question.

A second question made by defendant is this : Did the testator intend to invest Jeremiah Beatty with the whole, or only the undivided half of the quarter section in question ?

The defendants assume the latter alternative of this question; and, as I believe, principally rely upon the circumstance that tbis quarter section was the joint purchase, from the United States, of the testator in bis lifetime, and the defendant, Abram Darling, bis son; and the want of any proof of a sale and conveyance by defendant to the testator. The facts are not disputed. But we claim for plaintiffs that the clear expressions used by the testator comprehend the entire quarter section, and not the undivided balf. He could not bave found language more definite to this point. And that he perfectly comprehended the difference between the whole interest and the half, is apparent on the face of the instru. ment. Because, in the sentence immediately preceding the gift to Jeremiah, the distinction is taken in a devise to his grandson, William Beatty; wherein, in express terms, he gives to William, to use *his own language, “my balf of the quarter section [346 entered in the names of William Darling and William Beatty,” etc. The evidence also shows this was an undivided half. The patent for the land in question, adduced by defendant in evidence, shows that this quarter was also the joint entry of the testator and Abram Darling. This fact must have been fully in the mind of the testator at the same time. And what sound reason can be urged why he did not, in the devise to Jeremiah, use the same restrictive language as in the devise to William, if he contemplated tbo gitt to bim of tbe same limited interest ?

The fair interence, as we believe, is, that by some previous transaction or present understanding between the testator and Abram Darling, the former, at the time of making bis will, sup

Melick and wife v. Darling.

posed himself fully authorized to donate the entire quarter section to this grandson, and that be intended to do so. And tbis infer. ence is strengthened by the testator's circumstances, and other parts of the will. It seems the testator had but two children, a son and a daughter, and, excepting his Virginia land, which he gave to these children in equal interests, and a limited estate to Abram Darling, he rives all his real estate to certain grandchil. dren named. In looking over the several devises of his real property, it will thus be found that his bestowments upon Abram Darling's family, besides the Virginia land, embraces his home farm of 525 acres, and an entire quarter section of 160 acres, making 685 acres of land to his male progeny, while, admitting our construction of the will, bis daughter's family were receiving no more than one and a half quarter section of land, equal to 240 acres. But if their construction of the will prevails, this quantity is reduced to 160 acres.

A third question arising in this case is, whether (admitting the testator intended by the will to give the entire quarter section), in point of law, anything passed under the will to Jeremiah Beatty but the undivided half of the quarter actually owned by the testator at his death?

A solution of this question involves the well-known doctrine of 347] election. 2 Story's Eq. 335, 336, secs. 1075, 1076 ; Id. *337, 338, note 3; Id. 357, sec. 1096. For the plaintiff, we claim, under this head, that Abram Darling himself derived, under the same will, the undivided half, in fee, of the testator's Virginia landof what value does not appear in evidence—and that he has also received the use and occupancy of the home farm, 525 acres of land, and is still entitled thereto, until the youngest of his childreu, then, or afterward born, shall marry or come to the age of twenty-one years, for the purpose of raising his children. This benefit to him, under the will, bas been worth $500 a year, as established by B. Butler's deposition. So that having used and occupied this property already a period of some seventeen years or upward, he has derived the full amount of $8,500. And we insist, that, by availing himself of these large benefits under the will, Abram Darling has made his election to take under the will, and it does not now lie in his mouth to set up a right to this quarter section, or any part of it, which goes to defeat the will. Wo re

Melick and wife v. Darling.

fer, under this head, to 2 Story's Eq. 358, sec. 1097; Tibbits v. Tibbits, 19 Ves. 662 ; 1 Swanst. Ch. 382, note.

But if it be considered by the court, that he has still the right to make an election, and chooses to adhere to his legal rights in the quarter section in controversy, then it belongs to equity to exact from him all the benefits he bas, or may be entitled to under the will, and to apply them to make good to complainants the full value of the half quarter in controversy. 2 Story's Eq. 315, secs. 1083, 1084; Lewis v. King, Swanst. Ch. 438; note 1, Id. 411.

The defendant has further insisted that the devise to Abram Darling of the home farm, to raise children, etc., was not a pecuniary benefit to him; but in that he was only made a kind of trustee for bis children's benefit.

By the laws of the land, a father is bound to provido proper sustenance for his own children; and whoever supplies him with the means of performing this duty, necessarily benefits the father to the extent of the means supplied. It is as if the will had given a man a certain fund to maintain and support his wife, himself, or to provide bimself with a *mansion. The words relied upon [348 are no more than the benevolent expressions of a giver, which often are communicated with the gift, but which are never sup: posed to restrict or control the interest of the donee in the gift.

R. C. HCRD, with KINNEY and McNULTY, for defendants :

In determining questions of intention arising upon wills generally, the court is governed by the slightest preponderance of probability. Recognizing in every man a right to dispose of his own property, by will, according to his own good pleasure, it is content, notwithstanding it may have doubts-doubts almost invincible—if it can say such was prob bly the meaning of the testator..

But the rule is different where the question is, whether the testator intended to devise property not his own.

And to this effect are the authorities. “It must be clear, plain, and incontrovertible, that the testator could not possibly give what be has given consistently with this paramount claim of the defendant."

** Before you can prevent the legal right” (in this case, the defendant's right to one moiety), “the intention must be perfectly clear.” The intention must be so clear that a "judge can say, It

Melick and wife o. Darling.

is impossible the testator could mean the defendant to have both." French v. Davies, 2 Ves. Jr. 578, 581.

“The clear deduction from all the casos is, that the intent to exclude the right of dower by a voluntary gift, must be demon. ftrated by express words, or by a clear and manifest implication, and this implication must arise from some provision in the will in. consistent with the assertion of the claim.” Birmingham v. Kir. wan, 2 Sch. & Lef. 441.

“ The intention to exclude dower (no express words excluding it), is to be collected by clear and manifest implication from the provisions in the will. To enable us to deduce such an implied intention, the claim of dower must be inconsistent with the will, and repugnant to its dispositions, or some of them. It must, in 349] fact, disturb or disappoint the will. This *appears to be the result of a historical review of the cases upon this greatly agitated subject." Adsit v. Adsit, 2 Johns. Ch. 451.

These principles bave been established in cases where it was attempted to put the widow to an election to abandon ber legal right of dower, or relinquish all benefits under her husband's will, and are, without doubt, applicable to the present. “It is upon similar ground (alluding to dower cases), that the doctrine of election has been held not to be applicable to cases where the testator has some present interest in the estate disposed of by him, although it is not entirely his own. In such a case, unless there is an intention clearly manifested in the will, or, as it is sometimes called, a demonstration plain, a necessary implication, on bis part, to dispose of the whole estate, including the interest of third persons, be will be presumed to intend to dispose of that which he might lawfully dispose of, and no more. 2 Story's Eq. 352, sec. 1089.

Lord Eldon observes, in Radcliffe v. Parkyns, 6 Dow, 185 (cited in note to Dillon v. Parker, 1 Swanst. 394), that “it is difficult to apply the doctrine of election where the testator has some present interest in the estate disposed of, though not entirely bis own."

The following remarks, by an able writer, are clear, and to the point, and evidently sustained by the numerous authorities which he cites.

“ The most numerous, as well as the most difficult class of cases,” says he, “with which the courts bave had to deal, consists

Melick and wife v. Darling.

of those in which the devisor, and the person against whom the election is sought to be raised, have each an individual interest in the property, and in which the question, therefore, is not, as in the cases before discussed, simply whether the testator meant to devise the property generally (for such a devise may be perfectly consistent with an intention to affect his own share only), but whether he intended to devise the land, inclusive of the other party's interest. Of this description are those cases, in which the question is, whether the devisor's widow is precluded, by a benefit given to her by the will, *from claiming dower out of lands [350 devised by that will. This, at least, is indisputably clear, that a mere devise of such lands affords no indication of an intention to dispose of her dower.” Powell on Devises, 412, note 7 (Law Library).

And, again: “In order to raise a case of election against any person claiming dower, or any other interest in the land, it must be "incontrovertibly" manifest, that the testator intends to dispose of that interest, as well as his own. It is admitted on all hands, that this intention is not evinced by a mere gift of the land itself, for it is rather to be supposed that the testator intends to confine his disposition to that which belongs to him; the consequence therefore is, that every devise is first to be read as embracing the testator's own property in the subject, and, if a repug. Dance be not thereby manifestly produced in the disposition, there is no pretense for extending it to that portion of interest in whicb be has no disposable property.” Ibid. Apply this sensi. ble, practical test, plainly deducible from the authorities, and where is the repugnance? There is none.

Should, however, the court be of opinion that this is a case for the exercise of its power to compel an election, it is claimed that the defendant still has the right to make his election. It is not pretended that he ever knew, or supposed that he was under any obligation to make any election, and his acceptance of the bene. fits devised to him can not, therefore, be adduced as evidence of election. 2 Story's Eq. 359, and cases cited; 1 Swanst. 381, note a.

He is also entitled to a reasonable time in which to make his election.

WOOD, J. The complainants claim that the will of William Darling creates a case of election against the defendant.

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