Jones v. Jones

The intention to raise an election, most bo clear and manifest from the will itself. That intention must be collected fiom the face of the instrument, and without a clear and express manifestation, it cannot be presumed to extend to property which did not otherwise pass under the will. If a will sufficient to pass personalty, gives a legacy to the heir, and devises the realty away from him, ho may take the legacy, and claim the estate by descent; but if the legacy be on the express condition annexed, that he shall confirm the devise, ho cannot take the legacy and disaffirm the devise. The wills of infants and feme coverts being void as to realty, raise no implication, and the heir may claim both the legacy and the land devised to another, by such a will. A will of lands that is not executed and attested according to our statutes, can create no election as to the lands here, from implication, because such an instrument is no will here, and, therefore, inoperative. In this case, a will was executed in Pennsylvania, before two witnesses only, and, therefore, void as to the lands in Maryland. It contained no express condition requiring an oleclion as to the lands here. Held : that it could not operate to divest a child of his inheritance here, or put him to his election.

Appeal from the Court of Chancery. Evan Jones, a citizen of Chester county, in the Slate of Pennsylvania, died in September, 1845, seized of real and personal estate, both in that State and in Maryland, leaving a last will and testament, by which he bequeaths as follows: “First.—I give and bequeath to my son, Benjamin, all my estate, real, personal or mixed, with the following exceptions: All the accounts against John, I give to him, and the improvements I made on the farm belonging to his mother, which I think is sufficient. I allow the line for him on the east side to be along a new post fence on the west side of the creek crossing the creek at the head of said fence, and running to a ditch from Preston's line, and all the land north of that ditch, that I bought of Whitting, I leave to John, and the right of water bought of Townsend. I leave to John my farming utensils, furniture, timber, wheels, (my wardrobe to my grand-daughter, Mary W. Jones,) the line at the south end of the above named fence, to due south to the middle of the road leading to Wilmington, past Osmond's factory, thence down said road to the line of Osmond, then crossing the creek to my land that I bought of Russell, which is to be the boundary between them, and both equally to support the fence and clean out the ditch, and if John marries, and has children, Benjamin to make John a title for his half of his mother’s land, which is a condition of this, my will, still John to have the use of Benjamin's half of his mother’s farm, according to the above described bounds, the above post fence ends at an ash tree, which Í make the corner, thence south-east to a gum that the log on the Mercer creek is chained to, from thence the same course to a small hickory near the road, marked, the limbs hanging down, from thence to the middle of the road, and then as described as above, I make the above a sine qua non, and if either attempts to break it, is to have no benefit to my estate, but all to go to the one willing to fulfill. I likewise constitute my son, Benjamin W. Jones, my sole executor.” This will was executed in the presence of two witnesses, and, therefore, not capable of passing real estate in Maryland. The devisees, John and Benjamin, were the only heirs at law of the testator, upon whose death letters testamentary were granted to the latter, and John took possession of the real and personal estate in Pennsylvania, given him by the will. On the 22nd of July, 1846, Benjamin, the appellee, filed his bill in chancery, charging, in substance, that the defendant, John, claims all that the will gives him, and that he is, in addition, entitled as heir at law to an equal share of the lands in Maryland, of which he insists the said testator died intestate, by reason of the execution of his will in the presence of two witnesses only. That defendant acting upon this view of his rights, has recently cut down and carried away from the land in this State, timber and ornamental trees, and is now committing other acts of waste to the irreparable injury of the property, against which acts the complainant asks relief by injunction, and further prays, that if defendant be not considered as having already made his election, by taking possession of the properly devised to him by the will, he be now put to his election, and for general relief. An injunction was accordingly granted. The answer of the defendant, admits that he had taken possession of the lands devised to him in Pennsylvania, but insisting upon the great inequality in the value of the properly given to him and complainant by the will, maintains that the will is restricted, and was by the testator intended to be restricted in its operation to his Pennsylvania property. Proof was then taken, which it is unnecessary to state, as the questions decided relate exclusively to the construction of the will. The chancellor (Johnson,) on the 28th of December-, 1847, passed a decree ordering the defendant to proceed to his election, whether he will hold said real estate situated in this state, as heir at law of the testator, or not, within sixty days after service of decree upon him. Accompanying this decree, the chancellor delivered an opinion, in which, after stating the facts of the case, he says: “I am fully convinced that the testator intended to dispose of his whole estate, wherever it, might be situated, and that there is nothing upon the face of the will by which his Maryland property can be exempted from its operation, rather than that which is situated in Pennsylvania. No inference of a contrary intention, I think, can be drawn from the circumstance, that the will, though good as to the lands in Pennsylvania, is defectively executed as to lands here, because it is manifest from the paper itself, that it was drawn without the assistance of counsel, or of any one likely to know the difference between the law in the two States, in regard to the execution of wills. I am, therefore, of opinion, that the testator did not mean to die intestate of any portion of his property. But the will not being so executed as to pass lands in Maryland, is inoperative in respect to such lands, and the defendant would be entitled as heir at law to a moiety of such land, unless he is precluded by the doctrine of election from asserting his title, and this is the remaining question to be considered. There can be no doubt that, in order to impose upon a party claiming under a will the obligation to elect, the intention of the testator must be expressed or clearly implied upon the will itself, and if the obligation to elect depend upon the disposition by the testator of that which was not his own, it must plainly appear, that he intended to make such disposition, and also that the person taking a benefit under the will, should take under t.hc condition of giving effect thereto. 2 Roper on Leg., 389. Upon the face of this will, there can, I think, be no doubt that the testator did intend to dispose of property which he had no right to dispose of. He first, describes the land which John is to have, and then says, “if he marries and has children, Benjamin to make John a title for his half of his mother’s land, which is a condition of this my will; still John to have the use of Benjamin’s half of his mother’s farm, according to the above described bounds.” It, therefore, clearly appears upon the face of the will, that the testator undertook to dispose of that which was not his own; and the clause in which he says, “ 1 make the above a sine qv.a non,” &c., shows too plainly for dispute, that he intended that all who took any benefit under the will, should fake upon condition of giving full effect thereto. If, therefore, this will had been properly executed to pass real estate in Maryland, there can be no doubt that all who took benefits under it, must have submitted to its dispositions throughout. But, it is said, that a will not executed so ns to pass real estate, will not put a devisee to his election, an instrument of that description not being regarded as a will at all. There seems to be a difference between the effect of an unattested will, which merely professes to devise real and personal estate, and a similar will, which gives pecuniary legacies upon the express condition that the legatee shall give up real estate, by the will attempted to be disposed of. In the latter case, the legatee will be put to his election, though in the former he would not; as if the will contains a mere devise of real estate, and bequests of personal estate, unaccompanied by conditions, the will, if not attested, could not be read as to the real estate. Carey vs. Askew, 8 Ves., 492. Sheddon vs. Goodrich, ih.. 481. But if there be an express condition, that any legatee who may not comply with its terms, shall forfeit all benefit under it, there the heir being a legatee, will, by force of the condition. be obliged to make his election. The case of Boughtonvs, Boughton, 2 Ves. Sen., 12, is express to the point, and is not only believed never to have been shaken, but the doctrine established by it, appears to me so strongly recommended by natural justice, that no disposition is felt to depart from it. The Court of Appeals of this State, in the case of Me.Elfresh vs. Schley and Barr, 2 Gill, 181, say, “there never could have been a doubt of the power of a testator to annex what condition he- pleased to his estate; and that the principle established by the-cases is, that no one shall be permitted to take under an instrument,, and defeat its'provisions.” And in the same case, when- speaking of void wills, either on account of the incapacity of the testator, or the want of attestation, according to the statute, they remark, “ that such instruments create no case of election by implication.” But I presume there can be little or no doubt, looking to the reasoning of the court throughout the entire opinion, that effect would have been given to an express condition, even in the case of a will not attested, as required by the statute. The case in the Court of Appeals also decides, that the doctrine of equitable election is as applicable to the heir at law, as to any other devisee. But before a party can be considered to have made an election, it must be shown that he possessed full knowledge of his own rights, and of the circumstances of the testator; and as I am not satisfied in this case, that the defendant, John, had full knowledge of all the facts which might have influenced his judgment, I will not hold him actually to have made his election, but will pass a decree requiring him in some reasonable time to elect whether he will take under the will, or his moiety as heir at law of the land in Maryland.” From this decree the defendant appealed.