By the Court
Lumpkin, Judge.Before examining specifically, and in their order, the several positions assumed by the plaintiffs in error, Í would remark, that the doctrine of election is somewhat new in our courts. Like much of our jurisprudence, it is derived from the civil law ; and is founded in good sense. It allows no person to accept and reject the same instrument. If he accepts aben*502efit under a deed or will, he^must not decline the burden which it imposes, or this would be to defeat and defraud the design of the donor. He must adopt the whole, conforming to all its provisions, and renouncing every right inconsistent with Story’s Eq. sec. 1077.
There are cases of express or positive election, as that of Wilson vs. Arny. — 2 Dev. and Bat. Eq. Cas. 376. The testator of the plaintiff duly made and published his will, whereby he gave and devised to his son, “ Christy Arny, his heirs and assigns for ever, the plantation whereon he then resided ; but if he should make choice of the lot in Lincolnton, in preference to my home plantation, my will is, that he shall have the same in fee simple. In that case I wili and direct my executor to sell my said plantation, and the proceeds to go in discharge of the money legacies herein bequeathed. But if my son Christy should ele'ct to keep my home plantation, in that case the said lot shall be sold, and the sum arising therefrom go to the discharge of said legacies.”
Here was a clear case of election created expressly by the testator himself.- Accordingly it was decreed — that the legatee, Christy Arny, must renounce the plantation devised to him, unless, within a reasonable time, he declares his election before the master to keep it; and in that case join in the sale and conveyance of the Lincolnton lot for the purposes of the will.
But there are cases also of implied or constructive election, as that of Key vs. Griffin, 1 Rich. Eq. Rep. 67. Here the husband bequeathed to his wife and her heirs a plantation, slaves and some other property; and also, two thousand dollars to be made of his estate. He then gave all the residue of his property, after the payment of his debts, to his children. The two thousand dollars in money bequeathed to his wife, he intended to be in lieu of a certain debt due him in right of his wife, by virtue of a decree of the Court of Equity. Upon the death of the testator, the wife as survivor became entitled to this decree. The Court of- Appeals held that the wife was bound to elect, and that if she accepted the property-given to her under the will, she could not'retain the decree, giving up the two thousand dollars only.
Chancellor Harper, in delivering his opinion on the first trial of this cause at Edgefield, and which was subsequently concurred in by tho whole court, says :, The testator certainly regarded the decree as his own, and that he had power to dispose of it. He speaks of it as his, though in right of his wife. It'is plain that he did not intend the wife to have it.”
With these preliminary remarks and illustrations, we will proceed to examine the several points presented by the transcript of the record and bill of exceptions.
1st. The court below charged the jury, that they should inquire and determine whether from the whole will, the testator intended that the defendant should take $500, or the boy, and not both. How could the testator have intended John McGinnis to take Booker, when he wills him expressly to his two other sons, James and Stephen ? It is an inference of equity, that he could not so have intended. The very case before us, is that put by Judge Lomax in his treatise on executors and administrators, as an example of a constructive election, as if a testator should devise an estate belonging to his son to a third person, and should in the *503same will bequeath to the former a pecuniary legacy ; here it is obvious that it was not. intended that the son should take both, to the exclusion of the other devisee; and he will therefore be put to his election which he will take. — 2 Lomax Ex. and Ad. 164. It was error therefore to submit that as matter of fact, to be found by the jury, which was an implication of law from the face of the testament.
The truth is, that where a testator gives to a legatee the property of a third person, believing it to be his own, as was probably the case in this instance, and a.t the same time bequeaths a pecuniary benefit to the owner, tne testator himself can never, in the very nature of things, intend to put the party to his election ; and the modern doctrine is, that it is sufficient to raise a case of election, that the testator does dispose of property which is not his own; nor is any inquiry necessary whether he did so, knowing it not to be his own, or whether he did so under the erroneous impression that it was his own; and the court will not speculate on it. — 1 Swanst. 407, note„ To put the legatee to his election, it is only necessary that the instrument should clearly ascertain the property given ; that it was manifestly the intention of the testator to dispose of the property which is not his own ; and that the gifts are in such terms as are inconsistent with the notion, that the donee'can keep his own estate, and also take under the will, without defeating the intention of the testator. It.is, in other words, in the nature of a condition, and that condition is implied from the nature of the several dispositions. — Chief Justice Ruffin, in Wilson vs. Arny, 1 Dev. and Bat. 378. Is not the boy Booker clearly designated in the will ? Can there be a reasonable doubt, that it was the intention of James McGinnis, senior, to dispose of him ? The defendant in error admits it, and insists only that he is not specifically bequeathed, but falls into the residuum ; and are not the gifts of Booker to James and Stephen McGinnis, and of the legacy of $500 to John McGinnis, in such terms as are utterly inconsistent with the notion, that John McGinnis can, without contravening the purpose of the testator, hold Boolcer by virtue of his independent title, successfully asserted in the action of trover, and also claim the $500, the payment of which is charged upon Booker, and the other property embraced in the 5th clause of the will ?
The foundation of the doctrine of election is, the intention of the author of the instrument.; an intention which extending to tho whole instrument is frustrated by the failure of any part. — 2 Story's Eg. Jut. 337. We are of tho opinion, then, that the title set up to Booker by John McGinnis, and the claim to the pecuniary legacy of $500, are inconsistent with each ether ; and that fee has his choice between them, but that he cannot take both, and so the court below should have instructed the jury.
2d and 3d. The second and third ground ef alleged error may be considered together. The judge who tried the cause, charged the jury, that the doctrine of election applied only to specific and not to residuary legacies ; and that they should decide, from a consideration of the whole will, whether the complainants were the one or the other. That if theyfound them to bo, residuary legatees, then they had no right to call oh the defendant to make his election, and that consequently they would in that event find for the defendant.
Now, tho general principle is correctly stated, that the doctrine of ejection, cannot he raised in fayor of residuary legatees, for the simple *504reason, that they only take what is loft of the e'state, after the payment of debts, legacies, and every other demand against the testator. To entitle him to the benefit of this principles, the residuary legatee would have to- resort to parol testimony, to show that it was the intention of the testator that he should have any particular article which fell under the residuum, and to which an independent title was set up by a third person; and this course is wholly inadmissible, by the rules of evidence. The charge, however, is manifestly wrong, in the unqualified terms in which it was given. James and Stephen McGinnis might be residuary legatees, as they were under the will of their father, and yet specific legatees as tc> Booker; and so the jury should have been instructed. And the true issue to have submitted, was not whether James and Stephen were residuary legatees, but whether It was the intention of the testator — to- be gathered from the instiument itself — to give them Booker.
If, to- constitute a specific legacy, it is only necessary so- to describe the chattel as to distinguish it from all others of the same kind, then was Booker specifically bequeathed to tho complainants. But it is contended, upon the authority of Flemming vs. Burrows, 1 Russell, 276, and Stuckey vs. Stuckey, 1 Hills Ch. Rep. 308, that the mention of is Booker only by way of enumeration, and does not take him out of tie residmm. Let us examine fear a moment these adjudications. In the first it was decided by the Master of the Rolls, that a bequest of the testator’s furniture, plate, hooks, and live stock, or whatever else ho might he possessed of at his decease, would pass the general residuary estate, though followed by specific bequests and devises to the same person, and by gifts of pecuniary legacies' to> various other persons. The doctrine, and its application here, is, that James McGinnis, senior, having, in the beginning of the sixth item in his will, given all the balance of his property to his two’ sons, James and Stephen, after the payment of his debts, legacies and burial expenses ; that they would take the whole residuum, under these general-words, notwithstanding he subsequently, in the same clause, specifically bequeaths-to the same sons certain real and personal estate, and the boy, Booker, among the rest. It was urged by counsel, in the ease of Sir Daniel Flemming’s will, that the subsequent bequests in the will were ineonsistest with the idea, that the testator had made, or supposed himself to have made, a complete disposition! of everything belonging to Mm. But Lord Gifford held, that the enumeration of certain articles in that part of the clause would sot be sufficient to restrain tbe generality of tbe gift; and that — looking at the whole of the will, in which it was evident that the object cf the testator’s bounty and attention was his natural son — there was nothing which would warrant him in limiting the generality of the testator’s expressions, and which were sufficient, taken per se, to pass to that natural son the residuary estate. So far as this case, then, applies at all, it is a precedent for the plaintiffs im error;, for their father’s will shows, conclusively, that they were the great objects of Irá bounty and solicitude ; and the decision manifests the strong desire of courts to effectuate the intention of testators.
In the ease in Hill, the court ruled; that where the residuary clause N the will contains the following words, “ I do hereby leave all the rest of my property, that is not above mentioned, such as horses, cattle, hogs,» sheep, geese, beds, crops, and other articles too tedious to mention,” &e.;. *505that money on hand at, the testator's death passed under it; that tills enumeration under a videlicet was only a defective enumeration, and not a restriction to She specific articles; that they were rather words of enlargement, the object being to exclude nothing. So, here, in a subsequent part of the same sixth clause, the testator bequeaths all the balance of his property, consisting of live stock, working- tools, books, notes, accounts, ready-money, and all other property of which he may die possessed. Hero it is manifest that the testator intended to include everything which he had to dispose of, and that the specification was intended to enlarge, and not to restrict, the words previously used. We do not perceive, therefore, the advantage tobe derived to the defendant in error from this authority. Instead of naming Booker and the other slaves, if the testator had included him under words like these: “ All the balance of my property, consisting of negroes,” &c. But such, unfortunately for the party, is not the fact. Booker is bequeathed, eo nomine, by that name. And the only inquiry is, Was it the intention of the testator to give him to James and Stephen McGinnis, and would that design be defeated unless John is put to his election ?
But I assume still higher ground, and hold, unhesitatingly, that if the will had been so framed as that Booker constituted clearly a portion of the residuum, still, if it was apparent from the instrument itself that he was intended to be given to James and Stephen McGinnis, equity would compel John McGinnis to elect between these alternate rights ; for, in such,a case, the reason of the law ceasing why residuary legatees cannot claim the benefit of this doctrine, the law itself would cease to apply. Nay, the courts in South Carolina have gone much further, and the case already referred to, in Richardson, says : “ If the testator had declared expressly that the decree now claimed by the wife, as survivor, should form part, of his estate, whether to pass under the residuary clause of the willy or to be distributed as property intestate, it is plain that the widow could not have taken her legacy and decree both, without defeating the provisions of the will, and she must have selected."
But it is argued, that the testator had a present interest in Booker, (the possession,) the devising of which to James and Stephen McGinnis was not inconsistent with the paramount title of John McGinnis. It is true that the doctrine of election has been held not applicable to cases where the testator has some present interest in the estate disposed of by Mm, although it is not entirely his own. In such a case, unless there is an intention clearly manifested in the will to dispose of the whole estate, including the interests of third persons, he will be presumed to intend to dispose of what ho might lawfully dispose, and no more. — 2 Story Eq. Jur. 352. There is an insuperable difficulty, however, in the present ease. His possessory right, such as it was, terminated at liis death; and John McGinnis, in the action of trover, recovered hire from that time. But the legacy of Booker did not take effect till after the death of the testator. No presumption or implication could arise, therefore, undesthese circumstances, that he intended to dispose of that which could not exist — a nonentity. The question, it will he borne in mind, is one of intention. Suppose that the testator had a life estate in Booker. That could not survive him; and he could not be supposed to be disposing of that by his will. The inference would have been otherwise, had it been *506shown that he possessed an estate in this slave, during the life of his wife, or of some other person. He might then have intended to bequeath only that present interest, without interfering with the remainder in fee in his son, John McGinnis. There was no such testimony adduced; and such, we imagine, is not true in point of fact.
On the contrary, the presumption is, that the testator supposed that Booker was absolutely his property, and that he was willing to make over to his sons, Stephen and James, the entire estate in him. At the commencement of the sixth clause, he undertakes to dispose of all the residue of his property, Booker included. Still further on, he calls him his slave, and classes him with the other negroes that are admitted to be his; and charges the whole with the payment of his debts, legacies, and funeral expenses.
An argument is invoked from the first clause of the will, to show that the testator did not intend to put John to his election. The property loft to his wife is given expressly in lieu of her dower, demonstrating that the testator’s mind was called to the contemplation of this subject; and yet he prescribed no such condition in the legacy to John. The answer is at hand. He knew that the right to dower vested in his wife ; it was an estate vouchsafed to her by law. He could, therefore, and did, make provision against it, by offering a substitute for it. Believing, however, that the title to Booker was in him, and that he had the same power to will him, "that he had the $500 bequeathed to John, it could not have entered his mind to have presented any such alternative. And in this, and the like case, equity, by a strong operation, in the language of the books, interposes, and forces the recusant legatee to a choice between these inconsistent rights.
4th and 5th. But the court below charged the jury, that if they found for the complainants in the bill, upon the points already discussed, still they come forward too late ; that they had no right to resist the title of the defendant to the utmost to Booker, and force him to expend large sums of money in prosecuting his claim, to take the benefit of the chances of litigation in the action of trover, and failing there, to seek now to put the defendant to his election, and that they were not entitled to recover back the money already paid to the defendant towards his legacy, at least so much of it as was advanced before the action of trover was brought. And in support of this position, counsel have relied with much confidence on the case of McDowall vs. McDowall, 1 Bail. Bq. Rep. 324.
From a review of that authority, I am satisfied that it does not afford any support to the principle contended for. That was a bill filed by the children of William MeDowall, and residuary devisees and legatees, under the will of their grandfather, John MeDowall, deceased, against Mary MeDowall and Alexander Black, as executrix and executor of the testator, for an account of his estate. John MeDowall, the grandfather, by his will, dated in 1819, had bequeathed to his wife, the defendant, Mrs. Mary MeDowall, his household furniture, plate, and carriage and horses, with the privilege of living five years, rent and tax free, in the house behind house No. 194 King-street, and also an annuity of five hundred dollars, payable quarterly, out of his estate, with the use of tho fellow, Tom, and washerwoman, Mealy, during her life only, and at her *507Aoatli the said slaves to be sot free by their mistress. And the will adds, “ This settlement on my good wife, I hope she will consider a full compensation for any right of dower on my estate, as I folly do. In a codicil, the testator speaks of the surplus of his estate, after paying all gifts and his wife’s dower of $1500 per annum. The testator appointed the defendants, Mrs. MeDowall and Alexander Black, executrix and executor of his will. Mrs. MeDowall, in her answer, admitted that she had received the annuity of $S500 frqm the estate, and that the furniture and plate wore delivered to her, not amounting in value to more than $1500 ; that she received hut one of the carriage horses, the other having died ; that she received the negro woman, Mealy, the man, Tom, having hcen sold by the testator in his lifetime ; and that she had the use of the house for the five years directed by the will. Both of the defendants qualified, but Mr. Black acted, principally, in the execution of the will, and delivered the property bequeathed, and made the payment of the annuity to his co-executrix.
In 1824 Mrs. MeDowall sued out a summons in dower against the executor, Mr. Black, in the Court of Common Pleas for Charleston district,. This was pending- until June, 1826, when the following order appears on tlio Minutes of the court: “ Mrs. McDowall’s claim of dower clause in testator’s will — after hearing the attorney-general for the motion for a writ of admeasurement of dower, and King contra, ordered that the writ do issue.” The writ issued accordingly, and the dower was assessed by the commissioners at six thousand five hundred and sixty dollars, for which judgment was entered, and the amount paid by the executor, Mr. Black, out of the funds of the estate.
The present hill was against the executrix, and executor, for an account of the estate; and the only question submitted, preparatory to taking the account was, whether the widow, Mrs. MeDowall, is entitled to retain both the bequests to her contained in her late husband’s will, and the amount recovered by her as dower ; whether the bequests to her were not intended in satisfaction of her dower ; and whether she is not bound to elect, and, indeed, whether she has not already elected, by accepting the provision made for lierby the will, in the first intance.
The chancellor held, and his opinion was sustained by the Court of Appeals : That if the question was properly before him, whether, on the the face of the will, this bequest was intended as satisfaction of dower, that he would have no hesitation in saying that it does appear to have been so intended — expressly so. But he felt himself bound to consider this as a matter airea,dy adjudicated by the court of law. And that having- been once adjudicated by a court of competent jurisdiction, it should not again be drawn in question. That this defence appearing on the face of the will itself, might have been made in the suit for (lower ; yea, it was actually offered, and considered, and the very point now presented decided on; and that ho had no authority to review that decision, however eloarly it may have seemed to him to have boon erroneous, and notwithstanding it may have been a matter of concurrent jurisdiction in the first instance.
“ It is said,” continues the chancellor, “ that to compel an election appertains exclusively to chancery jurisdiction.” There is no doubt of that; and in order to exercise that jurisdiction, the court determines *508the questions which arise on the construction of wills, whether a devise or bequest was intended in satisfaction. But when the question of construction has been settled by a competent authority, and the provision actually accepted, decided not to'bo a bar to the demand ; what foundation is there for the exercise of the jurisdiction of this court ? It would amount to this : A court of law, in the proper exercise of its jurisdiction, determines that a party is entitled both to a legacy and dower ; and that the acceptance of one, on a just construction of the will, is no bar to a demand for the other. But in a ease where the party is entitled to but one of the. provisions, it belongs only to this court to compel the party to elect; and, in order to clear the way to an exercise of this jurisdiction, it may set aside the judgment of a tribunal of equal authority.
Now, the striking difference between this case and the one under consideration is this: In the case in Carolina, the defence to the suit for dower was apparent on the face of the will, which made provision for Mrs. McDowall, the demandant. Where that is the case it is a good plea at law. And if the matter has been once adjudicated, or if the parties had an opportunity of litigation and failed to do so, they will not be heard before another tribunal. If the testator, James McGinnis, Senior, knowing Booker to belong to his son John, had nevertheless willed him to Stephen and James, and bequeathed to John $500 expressly in lieu of Booker ; then had John accepted the $500, and afterwards undertaken to recover Booker, the acceptance and payment of the pecuniary legacy would be a good plea in bar. But this is not the case. Stephen and James allege in their bill, and the fact is not denied, that when they made the first four payments to John, on his legacy, and entered into the agreement, that his sale note should be applied in the same way, they were wholly ignorant of his claim to Booker, The gift of the $500 was no defence to the action of trover. Because it did not purport to be as a substitute for this slave, .and the law is, that if a testator gives A a benefit by his will, and by the same will disposes of a piece of property belonging to A, at law he would be entitled to both ; equity only can compel him to elect.
What, then, was the obvious duty of the executors ?
had by his suit set up a title to a negro had every reason to believe belonged to their testator, and of almost double the value of the pecuniary legacy left to him. Were they to stand by and fold their arms in silence and submit to a recovery ? Fidelity to the estate they represented, to the dying intentions of their testator, forbid it. Nor are they to be punished now for doing that which they would have been forsworn in not doing. No laches is imputable to them for not pleading the gift of the legacy to the action of trover, for it constituted no legal defence ; and no blame, for resisting the title of the plaintiff — that obligation having been imposed by their oath of office.
The plaintiffs in error rightfully insist, therefore, that they were not bound to put the defendant to his election until the title of Booker was ascertained. Nor does the complaint of delay come well from John McGinnis, who conceals from the complainants his intention to claim the negro until they have paid out a good portion of his own, and the *509other pecuniary legacies ; defrayed the burial expenses of their testator, and satisfied his outstanding debts ; looking to this boy in part for the means of doing so. But this is not all; after he has obtained Booker, and two hundred and forty dollars for his hire, ho sues for the balance of the $500 legacy, and is proceeding to collect the same of the executors ; and yet thinks it iniquitous that he should be called upon to make his election ; after he has been forced to expend money in litigating the title to Booker ; whose recovery too, leaves the disappointed legatee, under the will of his father, minus three hundred dollars.
'The principle contended for is sound law: that before a legatee can be obliged to make his election, all the necessary accounts should be taken, and the amount that ho is entitled to under the will settled and ascertained. And under peculiar circumstances, some of the authorities go so far as to say that fifty years is not too long for that purpose.
This will is equally applicable to the other party, seeking to put the legatee to his election, and applies with peculiar force in the present ease. Suppose John McGinnis had lain by, just long enough to keep within the statute of limitations, in suing for Booker ; and, in the mean time — as he might have done — forced the payment of the pecuniary legacy ; would ho not be decreed in equity, under these circumstances, to make his election? And this is just the case made by the pleadings. The very point decided in Brown vs. Ricketts, (3 Johns. Ch. Rep. 553,) was that, where the plaintiff in his hill sets up a claim, independent of the will, to part of the properly devised in trust, to pay the legacies, he must elect to waive his claim, or wait until it be determined, before he can call for account or payment of any part of his legacy ; that the question of election does not, and cannot, arise, until the title to the disputed property be settled.
The case of- vs. Giddings, (3 Con. Eng. Cas. in Chan. 383,) is a sufficient reply to the intimation, that John McGinnis had elected to take the $500. It shows that where the legatee, as in this ease, takes both estates — possessing bimself of that which is his own, and receiving also that given to him by the will — he cannot be said to have relinquished either, but elected rather to take both.
The only remaining point necessary to notice is, the opinion expressed in the conclusion of the charge : that even if the defendant is put to his election, he cannot be compelled to refund the money which has already been paid Mm on his legacy. The case of Wake vs. Wake (1 Ves. Jan. 335) is directly at war with this idea. The testator bequeathed to Ms wife £¡100, to be paid out of his personal estate, within six months after his death, and after some particular dispositions, gave all his estate and effects whatsoever, subject to an annuity of £35, to his wife for life, in trust for his son, by a former wife, whom he made residuary legatee. The widow received her legacy, and also the annuity, for three years, and then brought the bill claiming both her interest under the will and her dower, which was about £80 a year. The trustees had let the son into possession at twenty-one, according to the directions of the will. The court being of the opinion that the widow ought to elect; the ques ion was, whether, by receipt of the legacy, and of the annuity, for three years, she had not made her election to abide by the will. But Buller, Judge, for Lord Thurlow, Chancellor, thought *510otherwise, observing: “ If the argument for the defendant holds, a single payment would have bound her ; but the point is, whether she had a full knowledge of the circumstances of the testator, and of her own rights. I think there- was a case before me about two years ago, at Lincoln’s Inn Hall, which went much beyond this. If she had acted with full knowledge, she should not afterwards deny it; but after three years only, I cannot say she is not entitled. The legacy of £100, and what she had received from the annuity, must be accounted for."
So in the case of Wilson vs. Arny, already quoted; it appearing there that the legatee, who was forced to elect, had been in possession of both plantation and lot since the death of the testator; he was decreed to account for the rents and profits since that period of the parcel he may surrender; which account the master in chancery was directed to take as soon as the legatee declared his election.
The books abound with similar precedents -, but I do not deem it profitable to pursue this investigation further.
Had the estate of James McGinnis, senior, consisted of the boy, Booker, and $500-in money only, and he had died, making the same bequests, and John had subsequently sued for and recovered Booker, and then sought to retain the sums already paid him, and to collect the residue of the $500, the flagrant impropriety of the proceeding would have been manifest to all. And yet in principle there would have been no difference.
The bulk of the estate is given apparently to a few favorite children. But they take it cum onere, and, whether, after the payment of debts, legacies, funeral expenses, and the costs of administration, they will be gainers or losers, the record does not disclose.
The learning of the judge who tried the cause, and the verdict of jury, all bear testimony to the struggles of a strong sense of natural justice, against the supposed wrong inflicted by the will. But with this we have nothing to do. By the laws of the land a man has the right (J wish it were otherwise) to dispose of his property by will, evento the entire disherison of his wife and children. And, so long as this power is preserved, the only inquiry with courts must be, not what the testa-tor ought to have done, but what he has done, with his estate ? And copu'ts and juries are just as much bound to execute that will, if it be not against law, as they are the constitution of the United States, the constitution and statutes of the State of Georgia.
For these reasons the judgment below must be reversed.