The opinion of the court was delivered, March 8th 1869, by
Sharswood, J.
In order to raise a case of election there must appear in the will or instrument itself a clear intention on the part of the author of it to dispose of that which is not his own: 1 White & Tudor’s Leading Cases in Equity 235, American note and cases there cited. When the intention necessary to raise the ques*145tion of election is clearly expressed or necessarily implied, the party to whom a benefit is given by the instrument, but claiming a right adverse thereto, may either be compelled to make his election or otherwise to make compensation out of what is thereby given to him. But unless the intention be so expressed or implied, he cannot be put to his election or called on to make compensation: City of Philadelphia v. Davis, 1 Whart. 502. In the will of Charles M. Stokes there is certainly no clear intention to devise the moiety of the property in which, under the deed of trust of James Stokes, he held an estate for life with remainder to his lawful children in fee, but on the contrary a very clear intention not to do so. He provides indeed that compensation shall be made to his other children for the inequality produced by that gift, and describes particularly the mode in which it is to be done. He devises all the residue of his estate, real and personal, to trustees to receive and apply the income for the maintenance and education of his seven children, taking into consideration the amount which some of them would be entitled to receive under the deed, so that including the sum derived therefrom the share of each of his said children should be equal; then, after directing the sale of his real estate he declares, “ I will and direct that the proceeds thereof, together with the proceeds arising from the sale of the property described in the said deed of trust, shall be by the said trustees divided into seven parts or shares, so that the shares of Elizabeth and Mary shall each be equal in amount to the shares of either of my other children, inclusive of the sum received by them under the deed.” It is true that this clause appears to contemplate a sale of the trust property, and there is no power in that deed for a sale; but neither are the trustees named in the will empowered to sell it, nor can such a power be implied in the teeth of the express recognition by the testator that he had no right to dispose of it. The main object, that of equal division among all his children, can be accomplished without implying such a power. Whenever that property is sold, he directs that such a division shall be made of the proceeds of his own estate as, including the proceeds of that, shall make the shares of Elizabeth and Mary in amount equal to the shares of either of his other children. The decree below effectuates this object, and that in the very mode pointed out by the testator himself. In decreeing partition between the children of Wyndham H. Stokes, subject to his life estate, and the five children of Charles M. Stokes, entitled under the deed of trust, the conveyance to the latter is directed to be expressly subject to the decree made by the court in the cause of September Term 1867, No. 21, by which decree it is provided not only that the five children should take no greater share each from the trust estate of the will, than would make their share, including that of the trust estate of the deed, equal to that of the other children, *146but the five children are expressly enjoined from making any sale of the deed property without notice to the others, and the approval of the court; and the amount of each sale is to be reported to the court for their further order and decree, as to the distribution thereof. It is not easy to perceive how the right and equities of all parties could have been more completely secured. Costs to be paid out of trust estate.
Decree affirmed.