delivered the opinion of the court. The devise toMaryche was intended, by the .testator, to be the same (as to -the right of election) with the one to his daughter Eytie, and must be governed by the same legal principles. She had a. right, then, to locate the twenty five margan of pine wood land where she pleased ; and. until the location had been made by •her, the lands thus devised in severalty could not be distinguished, or taken from the residue, owned by the testator in Be Bruyn^s patent; and it remained wholly uncertain to what part of them she would have this right in severalty, or to which part such right would attach, until the act was consummated by *528her ; for' this reason no éstate; or ¡Merest, in ,any' -partieüá l&r Part of those lands could pass to her, presently, by the devise, but depended Upon the previous act of election to'be made by her; and she not having thought proper to make it in her lifetime, it is important to examine whether the right can be extended to her heirs. • .
In 2 Coke’s Rep. 36, 37., (Heyward’s Case,) At is stated, that when nothing passes to -the feoffee, or grantee, before' the election, to have one thing or the ' other, theixjhe election ought to be made in the'lifétime of the ,parties, arid the heir/or executor, cannot make the election; and Bullock’s Case of 10 Eliz, 281., is there cited from Moore* 81. inwhiqh it is stated, .that if the heir of the feoffee should make the election, he would be in as a purchaser ; for nothing passes to the feoffee before election,; and, by the law, he cannot be a purchaser, for then the words.(his heirs) were words of limitation.
The case of Vandenbergh v. Van Bergen (Ante, 212.) is, in some measure, .applicable .to this, " There .the defendant, Under a deed for certain lands in Cbxsáckie patent,- with full liberty and license to erect and Build a mill on any place at; or on the Coxsackie Creek, with liberty, of ground and stream of water,, claimed the right of. overflowing the plaintiff’s land, which was held by the grantor, at the date of the defendant’s deed; this court decided; that though the.grantee, in his lifetime, would have had a right to erect a mill on the creek, and to have overflowed, so far as was reasonable and necessary, the land of the plaintiflV'adjacent to-the creek, which land had been purchased from th,e defendant’s grantor, subsequent to: the date of his deed, yet, not having, elected to erect the mill in his lifetime, the right becameextirict at his death. So here the right was potential, and rested entirely Upon the location and election to be made by the devisee. She was not vested in her lifetime with the title to any particular parcel; By virtue of the will, her election and location were'necessary to consummate/ the title,, and she never having, designated the .land, the exerpise of the right, bythe-heir, is'goné, particularly as. the claim is interposed upwards of forty years after the death of the. ancestor. But this need not be urged in the decision pf the present ■cause; for, .admitting that the right to” elect Was' riot confined to, the,ancestor, and that- it descended to the heir,, there can be, no, doubt but thaty in this instance, the heir has;, by a preyiotis elec*529lion of other lands, extinguished all possible claim to the pre- » . . mises m question.
It appears, by the case, that in 1794, the year after John E. Van Alen’s survey, the lessor of the plaintiff elected to locate SI acres, or 24 morgan, at another place, as heir of the devisee, according to the will; that he made an entry on the land, and cut a possession fence around it, and actually sold 25 1-2 acre.s parcel of it, which is now held under that title; but to avoid a law-suit with persons claiming under other devisees, he thought-proper to abandon his claim to the residue. If he had any right to make his election, it is extinguished by that location as to any other lands owned by the testator. No acts could be more, prominent; he openly avowed his intention, took possession, and sold part of the land. He was, consequently, obliged, thereafter, to confine his claim under the devise to his mother, to those lands, and cannot now resort to other property in the patent belonging to the testator; it would be extending an unreasonable latitude to the exercise of a right of this description; and, in its consequences, would be attended with fraud and injustice to bona fide purchasers. The election thus made by the heir, therefore, independent of the reasons before assigned, is sufficient to entitle the defendant to judgment.
Judgment for the defendant.