they must therefore be considered as vested from the death of the testator." But where a man devised his real estates to his wife for life, and directed his executors as soon after her death as conveniently might be to sell the same, and gave the produce among his five nephews at such time as the sale should be completed in case they should be then living; but in case any of them should die before the sale should be completed, then the share of the one dying to go to his children; and if no children, then to the surviving nephews; and one of the nephews, who survived the wife, died before a sale took place it was held he did not take a vested interest. And Lord Eldon observes, if a testator thinks proper, whether prudently or not, to say distinctly, showing a manifest intention, that his legatees, pecuniary or residuary, shall not have the legacies, or the residue, unless they live to receive them in hard money, there is no rule against such intention, which, if clearly expressed, must be carried into execution: but from the inconvenience and fraud to which this would open, if the words will admit of not imputing to the testator such an intention, it shall not be imputed to him. Thompson & iuss. 92. In an early case in which a man having three daughters devised them 300l. apiece, payable at twenty-one, or marriage; and if either died before that time her portion to be equally divided between the survivors; and the eldest married, and died, leaving issue, after which the youngest died under a Hutchin v. Mannington, 1 Ves. J. 366. 4 Bro. 491. N.; and see Stapleton v. Palmer, 4 Bro. 490. b Elwin v. Elwin, 8 Ves. 547. Faulkener v. Hollingsworth, ibid. cited. 497. Gaskell v. Harman, 11 Ves. twenty-one, and unmarried: the whole of her portion was decreed to the surviving daughter." But the word "survivor" is not now taken in so strict a sense. Thus where a man gave to his son and his two daughters each one-third of his property, payable at twenty-one, and willed, in case of the death of either of his children before the age at which their respective shares were made payable, that the third part of the one dying should be equally divided between the two surviving children; and in the event of the death of two of his above-mentioned children before attaining such respective ages, then the whole to devolve to the surviving child; and one of the daughters attained twenty-one, married, and died, after which the son died under twenty-one; and it was contended that the surviving daughter must take the whole; Lord Eldon said there was a number of authorities for construing the word "sur hmviving" to mean "other;" and decreed the son's share to be divisible between the administrator of the deceased daughter, and the surviving one. /« fare 3 Ref 217 III. In every will there is a tacit condition annexed both in law and equity, that whoever will derive a benefit under it must acquiesce in the whole of it: he can not take a bounty to himself, and deprive any other person of a bounty under the same will. If therefore a legacy is bequeathed, and an estate, or a specific thing belonging to the legatee, is devised to another, the legatee can not claim his Anon. 1 Freem. 301. Ferguson 91; and see 5 Ves. 467. 14 Ves. r. Dunbar, 3 Bro. 469. 578. 17 id. 482. Harman v. Dickenson, I Bro. c Wilmot v. Wilmot, 8 Ves. 10. b own, and the legacy also, but must elect. Thus if a freeman of London, before the statute enabling him to dispose of his personal estate, gave a legacy to his wife or child, and disposed of his wholé estate, the wife or child could not claim both the legacy and the customary part. Hence where a sum of money was settled in trust for A. for life, and after his decease among such of his children as he should appoint, and in default of appointment among them equally; and A. by will, after giving his children legacies, appointed the fund among his grandchildren: it was held that the children, the appointment being bad, must elect to take under the settlement or the will.d Lord Northington thought that the doctrine of election must be confined to plain and simple devises of the inheritance, and could not be extended to limitations, as it would cause great confusion; for the devise would be good or not just as the devisee in remainder chose to submit to the will: but this See Noys v. Mordaunt, 2 Ver. P.W. 119. Hender v. Rose, ibid. 124. N. Wilson v. Philips, Bunb. 195. Hervey v. Desbouverie, For. 130. Morris v. Burroughs, 1 Atk. 399. 2 id. 627; and see Babington v. Greenwood, 1 P. W. 530. Pugh v, Smith, 2 Atk. 43. Car v. Car, id. 277, contra Bravell v. Pocock, 2 Freem. 67. There is an exception in the statute of those cases in which freemen have covenanted on their marriage that their estates shall remain subject to the custom, so that the question may now sometimes arise. d Whistler v. Webster, 2 Ves. J. 367. objection, it has been said, is not now attended to." Lord Hardwicke also seems to have doubted whether a remainder-man after an estate tail should be subject to this equity; yet in another case, where there was a devise of freehold and copyhold estates in strict settlement, with a remainder for life to the heir at law after estates tail to the first and other sons of the first devisee, his Lordship held, that the heir must give up that remote remainder or surrender the copyhold estate to the use of the will; and the doctrine, it has been since observed, applies to interests of married women; interests immediate, remote, contingent, of value, or not of value.d An heir at law will be put to his election where the estate is devised to him in fee, although by the rule of law the devise is unoperative, and he takes by descent. If a devisor is an infant, or the will is not duly attested, it has been decided not to be a case of election; for the Court can not take notice that there is any will at all of the real estate. Yet it was held (previous to 55 Geo. III. 192,) that if copyholds were devised away without having been surrendered the heir must elect; as is the case also with regard to the heir at law of heritable property in Scotland, when the will is not conformable to the solemnities required by the law of that country." And where a man by his will, duly executed, directed that any estates which he might afterwards contract to purchase should be conveyed to his trustees to the uses of his will; and did subsequently contract for some; the heir at law, who claimed these, was put to his election." Another distinction on this subject was taken by Lord Hardwicke; for in a case in which by an unattested will a legacy among others was given to the heir, and the real estate devised away, but there was a clause, that if any of the legatees should controvert or not comply with the whole will they should forfeit all claims under it: his Lordship thought this differed from the case of Hearle v. Greenbank, being an express condition annexed to a personal legacy; and therefore the heir could not take both the real and personal estate. d The intention to devise away that property which is claimed by the legatee must be clear. Hence where there was a devise of "all the rest, residue, and remainder, of my real and personal estate and effects whatsoever and wheresoever and of what nature or kind soever;" and the testator died seised of some copyhold premises, with which some freehold was intermixed: it was held that the intention to pass the copyholds, which had not been surrendered, was not sufficiently apparent to put the heir to his elec • Brodie v. Barry, 2 Ves. & B. 127. b Thellusson v. Woodford, 13 Ves. 209. 1 Dow. 249. C Ante 187. d Boughton v. Boughton, 2 Ves. 12; and see Newman v. Newman, 1 Bro. 186. Heather v. Rider, 1 Atk. 425. e 1 Ed. 535. 13 Ves. 173; and see Forsyth v. Grant, 1 Ves. J. 298. |