is not even of force in a court of equity to raise a case of election against a person taking a benefit in the personal estate. In Hearle v. Greenbank, D. W. devised all his freehold, copyhold, and real estate, whatsoever and wheresoever, and all his leasehold estate, to two trustees, their heirs, executors, administrators, and assigns, in trust, to apply the residue, after paying their own charges, to the separate use of his daughter M. W., a married woman, during her life, to be at her disposal; not subject to the debts or controul of her husband; her receipts to be good, and to be permitted by deed or writing, executed in the presence of three or more witnesses, notwithstanding her coverture, to give and dispose of all his freehold, copyhold, and leasehold estate, as she should think fit; and gave to the same trustees, whom he made joint executors, his personal estate, in trust, for the sole and separate use of M. W., and to be at her disposal, a 7 Vez. jun. 372.

b 1 Vez. 198.

it adds a prohibition as to personal estate, that it should not be given to be laid out in the purchase of lands. But was there no other way whereby the interest in land might come to a charitable use? Yes, money due on mortgage was a charge and incumbrance on the land, the payment of which depended on the pleasure and ability of the mortgagor: therefore, parliament had by express words taken in that by a third clause; the words of which, if they did not extend to mortgages, he was at a loss to know for what purpose they were put in. The meaning was, that you shall not give to a charitable use that which is or may be a charge upon land, though not so at the time of the gift.

and not subject to the debts or controul of the husband. M. W. then under the age of twenty-one, but above seventeen, made her will, and thereby, in pursuance of her power in her father's will, gave 80001. to her daughter Mary, when she attained the age of twenty-one; she then devised the residue of her real and personal estate to the plaintiffs, the two Hearls, their heirs, executors, and administrators, for ever.

The bill was brought by the plaintiffs to have the appointment made by M. W. of the real estate in their favour established; but the court considering the will to be void by reason of the nonage of the mother, adjudged it a bad execution of the power: then the question arose, whether the heir at law could take the legacy of 80001. under the will, which was well devised, (the testatrix being of a capacity to dispose of personalty), and at the same time claim the lands by descent, against the appointment, or was put to an election, upon the rule of not disputing a will in any part under which you claim. And the case for the heir was thus put at the bar. It was said, that the rule was true, when properly understood, that wherever a person claims under a will; and by the same will, properly executed, land or any thing else is devised to another, which the testator had not a title to, the person claiming under the will shall not dispute the title; since the will manifests the intent how the whole should go; but that this rule did not go to make good what

was in effect no will: that the case under consideration was one in which there was no will; it was 'not the case of a will impeached for want of title in the testator; it was like a devise to a charitable use, since the statute; it was not want of title, but want of capacity to make any will at all of real estate.

To this distinction the Chancellor seemed to accede. His Lordship observed, that as to the equity of the plaintiffs from the claim of the 80001., it was true, it was determined in Noys v. Mordaunt, that if lands in fee were given to one child, and to another lands entailed, it is meant they should release to each other, and the court had gone farther since→→→→ to the case of a personal legacy. But still he was of opinion, that this differed from all those cases, and that the heir at law was not obliged to make her election, for in the case before him the will was void; and that where the obligation arose from the insufficiency of the execution, or invalidity of the will, there was no case where the legatee was obliged to make an election; for there was no will of the land.

And his Lordship put the case of a devise by a testator of a legacy out of land to his heir at law; and of the land itself to another; where, if the will be not executed according to the statute of frauds for the real estate, the court will not oblige the heir at law, upon accepting the legacy, to give up the

2 Vern, 581.

land. That such a case differed from Noys v. Mordaunt, in the reason of the thing; there the testator devised some lands which were, and others which were not, his own; and the court said, that the devisee should suffer the lands to pass, as if they were the devisor's own. But in the principal case, whether the lands were the testator's own or not, they could not pass by the will.

unexecuted will

there is a legacy

to the heir, upon condition that he did not

dispute the will,

But in Boughton v. Boughton, a distinction was But if in such taken as to this point, by the same Chancellor who determined Hearle v. Greenbank, which has been recognized and confirmed by subsequent authorities, though with some remarks upon its refinement and he is put to his subtlety. In this case of Boughton v. Boughton, it was held that a legacy to an heir, upon the express condition that he did not dispute, the will, would put the heir to an election, either to accept the legacy, or the lands devised away, although the will was not executed according to the statute. The case was as follows: A freeman of London devised his real estate to his younger son, Stephen Boughton, and all his personal estate among his children; among the rest, 1,2001. upon some contingencies to Grace, the daughter of his eldest son; adding this clause, "if any child or children of mine, or any in their right, or any who may receive benefit by my will, shall any way litigate, dispute, or controvert the whole, or any part thereof, or the

codicils thereto belonging, or not give such discharges as my will requires, or not comply with the whole, and all and every condition and conditions therein contained, both as to real and personal estate, such child or children, so far as it relates to them severally, shall forfeit all claim and pretence whatever under my will, and shall have no more than the orphanage part of the personal estate I die possessed of; revoking what I gave to them, I give it to my residuary legatees;" the testator underwrote to this instrument an attestation in the common form, but it was not subscribed either by himself or by any witness there was a codicil, without date, but signed by him, therein taking notice of and reciting, that in further consideration of this his last will, he made a codicil thereto, and gave directions therein.

Grace, by the death of her father, became heir at law to her grandfather, and so entitled to whatever he left to descend, or which ought to descend, from the invalidity of his disposition. She being an infant of tender years, this bill was brought by Stephen, the youngest son of the testator, and devisee of his real estate, in order that she might make her election, whether she would have the 1,2001, or the land which happened to descend to her; for that she could not claim both; but, if she chose the legacy, she must let the real estate go according to the intent. The point is so particular, and the Chancellor's judgment so luminous and discrimi