The testator in this case disposed of all his estate, both real and personal. The objects of his bounty were exclusively those upon whom the law would have cast the estate in case of intestacy; but whether in the same proportions under the will as at law, does not appear. Whether the provisions of the will are as beneficial as those of the law, or not, the devisees may not therefore disturb or set aside its provisions, unless under circumstances which raise a righ of election.
The widow accepted the devise made to her, which barred her dower; and the heirs as such merely could not avoid the provisions of the will, which disposed of the whole estates, real and personal, so far as they belonged to the testator. The legal title to the tract in controversy was not in the testator, but the plaintiffs, his children by a former wife, as heirs to their mother, in whose name the land had been purchased of the United States.
The testator devised this tract to his second wife for life, as a part of his homestead, with remainder to defendant in fee, his son by the second wife.
The object of the bill by defendant is to enjoin the plaintiffs from proceeding in ejectment, to recover the land as - heirs at law of their mother, upon the ground that they have devises and bequests made to them by the same will, of which they have accepted, and they cannot, therefore, in equity and conscience be peimitted to claim under the will the benefit of the devises and bequests to them, without giving full effect to-it in every respect, so far as they are concerned.
We think the circumstances clearly present a case for election (waiving any question of a resulting trust for the husband), and assuming the fact to be as is alleged, that the provisions of the will have been accepted, the plaintiffs are estopped in equity and conscience from all' claim to this tract of their own, which is given to the defendant. In the general language of the authorities, they may not, at the same time, take under the will, and contrary to it. This was the doctrine of the civil law, from whence, doubtless, we derived the rule. But it seems to have been confined to cases of wills by the civil law, while the rule with us has been extended to deeds and other contracts; and it has been held to be the rule at law as well as in equity.
The intention of the author of the deed or will to dispose of property which is not his, must be manifest; it is difficult to apply the doctrine of election when the testator has some present interest in the estate disposed of, though not entirely his own ; for it might be that he intended to dispose only of his own interest. Yet it is a question of intention, which is to prevail, and will be gathered from the terms of the instrument.
An absolute power in the testator to dispose of the siibject, and an intention to exercise that power, seems in general sufih cient to make a case of election; a devise to the heir, although inoperative, compels him to elect between the estate devised, and claims adverse to the will. The estate descending to the heir under his election to claim against the will, descends subject to the implied condition.
These principles are extracted from Mr. Swanston’s note to Dillon v. Parker, 1 Swanst. R. 394, b. The doctrine of election is very fully and comprehensively laid down in that case and note; and in Gratton v. Haward, 1 Swanst. R. 413, and note c. See also Noys v. Mordaunt, 2 Vern. R. 581; 2 Story Eq. Jurisp. Secs. 1075 to 1096; 2 Williams onExrs. 1236, Sec. 9 of Election (E) and notes; 1 Eoper on Hush, and Wife, 566, note l / (7 Law Lib. 334.)
It has been suggested that the testator here was tenant by the ourtesy of this tract of land, and it should therefore be intended and understood that he devised that interest which belonged to him, and not the fee, which was in his children by his first wife. This view of the devise cannot help or explain away the plain and obvious meaning and intention upon the face of the instrument; and that was to pass the fee in all the lands disposed of in the will. Besides, this would make the will inoperative as to this tract; for the estate by cwrtesy terminated with the life of the testator, at which time the devise took effect. We cannot indulge in a construction that would defeat the intention, make the provision inoperative, or render the will void. Éor can we indirectly do the same thing by supposing that the testator believed this tract to belong to him ; and intended only to dispose of so much as belonged to him. Where such appears to have been the clear intention of the testator to dispose of so much, and no more than he might own, and the particular property was devised or bequeathed under the impression that it belonged to the testator, then, it may be, that the question of repugnancy and election might not arise; but the devisee or legatee might take the interest given, without surrendering his claim to his own property. Still the foundation of the doctrine of election is the intention of the testator. So that when he clearly intends to dispose of the property of another, real or personal, although the will or deed alone and of itself may be ineffectual, inoperative, or void as a conveyance or sale, yet it affords authentic evidence of the intention of the testator or grantor, and that intention shall be made effectual and prevail to transfer the property of one who accepts a benefit under such will or deed. 2 Story Eq. Jurisp. Sec. 1077. Indeed, in Section 1076, Mr. Justice Story illustrates this doctrine of election by putting a case precisely like that before us. If the testator should devise an estate belonging to his son, or heir at law, to a third person, and should in the same will bequeath to his son, or heir at law, a legacy of one hundred thousand dollars, etc., an implied or constructive election is raised. The son or heir must relinquish his own estate or the bequest under the will.
The party is entitled to a full knowledge of the circumstances, and of the situation and value of the estates or provisions made; and an election made in actual ignorance of material facts will not preclude the party from exercising the right anew upon obtaining full information. This record does not show that the election here was without full knowledge of all material facts.
But admitting that the plaintiffs may yet make a new election, if they claim, by descent and against the will, all the lands and personalty devised and bequeathed to them in the will, they will be liable to make compensation to the disappointed devisee to the extent of the value of the devise intended for him. So that equity will lay hold of the devise or bequest renounced, and substitute compensation for the devise or bequest defeated. See 2 Story Eq. Jurisp. and 1 Swanst. R. above.
Whether by renunciation the party forfeits all interest, as in case of estates upon express conditions, or is entitled to any surplus after full compensation, as seems to be warranted by the current of authorities, is immaterial here, it seems to us. For its loss to defendant from the midst of his homestead tract, would cost plaintiffs more in compensation out of their devises than it could be worth to them thus situated and surrounded. And they cannot now assert their title as heirs to their mother, without making compensation to defendant, out of the devises to them in the •will.
Decree cvffw'mecl.