Thompson v. Thompson

Frost, J.

delivered the opinion of the Court.

The result of the motion depends on the correctness of the decision below, that the doctrine of election does not apply to the case.

Lord Eldon, in Broome v. Monk, 10 Ves. 609, states a case of election to arise “ when the testator gives what does not belong to him, but does belong to some other person, and gives that person some estate of his own, by virtue of which gift a condition is implied, either that he shall part with his own estate or shall not fake the bounty.” The principle of election is, that a party shall not affirm the will, in one part, by taking what is given to him, and at the same time reject it in that part which gives his own estate to another. A gratuity can be claimed only on the condition the donor may see fit to annex to it. When the testator gives his own estate to one person, and the estate >of that person to another, the intention is manifest that the second devisee shall have the estate of the first, and that intention creates a condition that the first devisee shall not take the estate given to him, unless he relinquish his own estate to the person to whom the testator has devised it. If, in this case, the testator had first conveyed the plantation to the defendant, and afterwards devised it to the plaintiff, the defendant could not take by the conveyance, without defeating the devise to the plaintiff. To take his own estate by the deed, and in addition claim what was given by the will, would be against the intention of the testator: and the defendant would be put to an election, either to take under the deed and relinquish his claim under the will, or to take under the will and relinquish to the devi-see the plantation claimed by the deed. But the conveyance to the defendant was made after the date of the last codicil, and long after the date of the will. The testator thereby gave him the plantation, in addition to what was given by the will. By the conveyance to the defendant the devise to the plaintiff was revoked, with the same effect as if the plantation had been devised to the defendant by a codicil. It was the intention of the testator that the defendant should take both under the deed and under the will; and there is no subject for election.

The motion is refused.

Richardson, J. O’Neall, J. Evans, J. Wardlaw, J. and Withers, J. concurred.

Motion dismissed.