clauses rather according to the general purpose and scope of the instrument had prevailed, whereby a conjunctive particle was often read disjunctively, and sometimes the contrary. But Lord Ellenborough1 thought it contrary to common sense to read "and" disjunctively. Since that time the decisions have fluctuated, until the case of Grey v. Pearson, before the House of Lords, where it was definitely settled that the strict liberal construction should prevail.2 § 1074 d. It seems to be admitted, that, as a general rule, the term "money," in a will, does not include stocks, either in the public funds or private corporations. But where there is nothing else upon which the gift can operate, it was held that public stocks will pass under a bequest of "all the money I may die possessed of." 3 But a bequest of "all my fortune now standing in the funds," will not pass bank-stock. But in many cases, and particularly in cases of executory devises, the gift over is held to take effect where the contemplated intervening estate never attaches, as where the gift over is upon the death of settlor's children leaving no issue, and the settlor in fact never has any children.5 § 1074 e. Where the testator provided portions for his wife and also for his two daughters, to be decided when the youngest child should arrive at the age of twenty-one; and by a codicil directed that if both his daughters should die in their minority, without issue, the property should all go to his wife; and the eldest daughter became twenty-one, but died without issue, and the youngest daughter died before she became twenty-one, without issue; it was held that the gift over had failed, the precise state of facts upon which it was to take effect not having occurred. The court say, "It cannot be conjectured what the testator would have done if the state of things that had happened had been present to his mind. The words that he has used must be adhered to; and the testator must be taken to have used the word 'minority' in its ordinary sense."6 § 1074 f. The Lord Chancellor, in discussing the question of 1 Doe v. Jessep, 12 East, 288. 26 House Lords Cas. 61; s. c. 3 Jur. N.s. 823. See also Pearson v. Rutter, 3 De G., M. & G. 398: Seccombe v. Edwards, 6 Jur. N. S. 642; Ely v. Ely, 5 C. E. Green, 43. 3 Chapman v. Reynolds, 6 Jur. N. s. 440. See also Cowling v. Cowling, 26 Beavan, 449; Lowe v. Thomas, 5 De G., M. & G. 315; Wylie v. Wylie, 6 Jur. x. s. 259; Paul v. Ball, 31 Tex. 10. 4 Slingsby v. Grainger, 5 Jur. N. 8. 1111; In re Powell, 5 Jur. N. s. 331. 5 Osborn v. Bellman, 6 Jur. N. s. 1325. 6 Maddison v. Chapman, 5 Jur. N. 8. 277; Wilbraham v. Scarisbrick, 1 H. L. C. 167. construction of wills in a late case,1 said: "Upon the construction of wills we are not much assisted by a reference to cases, unless the will, or the words used, are very similar. If this is not so, they are more likely to mislead than to assist, in coming to a correct conclusion. The object of construction is to ascertain the intention of the testator, which is to be collected, not from isolated passages, but from the whole of the will, and the general scope and scheme of it. And first, what is the ordinary meaning of the expressions used by the testator? If the meaning of the words he has used is clear, they must be adopted, whatever the inclination of the court may be." § 1074 g. The disposition of the courts of equity undoubtedly is, to construe general words, following a specific enumeration of articles in a will, as limited to matters ejusdem generis. It was accordingly held, that a bequest of."all and singular my household furniture, plate, linen, china, pictures, and other goods, chattels, and effects, which shall be in, upon, and about my dwellinghouse and premises, at the time of my decease," did not include a sum of money found in the house.2] CHAPTER XXX. ELECTION AND SATISFACTION. [§ 1075. Election arises where there is a plurality of rights not concurrent. §1076. Election is either express or implied. § 1077. It is based upon the duty of accepting the burden with the gift. § 1078, 1079 Rules of the civil law upon the subject. § 1080. Election exists in regard to different instruments. $1080 a. Persons under disability may make an election. § 1080 b. Married women cannot reach property, by election, which was put beyond anticipation. § 1081. Party only put to an election in courts of equity. § 1082. Equity proceeds to compel elections differently from courts of law. § 1083. One electing against an instrument, treated as trustee. § 1084. The rule stated by Sir William Grant. 1 Stewart v. Jones, 5 Jur. N. s. 229; The cases upon this point are extensively s. c. 3 De G. & J. 532. Gibbs v. Lawrence, 7 Jur. N. s. 137. reviewed here.] § 1085. Election against an instrument only forfeits, in equity, so much as will compensate; at law, it forfeits all. § 1086. Election only exists where the donor intends to give what is not his own. § 1087. Giving property subject to charge creates no election. § 1087 a. Only extends to direct claims, clearly defined. § 1087 b. Illustrations of general subject. § 1088. Wife not compellable to elect, as to dower, unless such intent very clearly defined. § 1088 a. This proposition illustrated by the cases. § 1089. Election not created where testator has any interest. § 1090. This doctrine not extended by construction. § 1091. Party only forfeits what is clearly defined. § 1092. Election does not extend to creditors. § 1093. Not important whether party knew the property was not his own. § 1094. Election produced by after-purchased estate. § 1095, 1096. Rule not affected by kind or quantity of interest. § 1097. What amounts to an election. Act and intent. § 1098. Party not bound to elect in ignorance. § 1099. Satisfaction is something done in lieu of performance. § 1100. Equity regards a donation as satisfaction of debt § 1101. Not applied to creditor so much as to children. § 1102. The presumption of satisfaction may be rebutted. § 1103. The gift and debt must be of the same species. § 1104, 1105. If that be so, it will extinguish the debt, or pro tanto. § 1106, 1108. Distinction between performance and satisfaction. § 1109. Rule as to satisfaction of marriage portions. § 1110. Legacy generally regarded as satisfaction. § 1111. Portion advanced will adeem a legacy. § 1112. Grounds of presumption stated. § 1113. Reason of the rule questioned. § 1114. Doctrine of civil law stated. § 1115, 1115 a. Whether a residuary bequest is adeemed, matter of intention. § 1116. Rule applies only to parent and child, or those in similar relation. § 1117. Legacy to stranger not ordinarily adeemed. § 1118. Reason for distinction unsatisfactory. § 1119. Legacy to creditor, payment of debt. § 1120. Reason for such presumption unsatisfactory. § 1121. Civil law required legacy to be same as debt. § 1122. Slight circumstances exclude the rule as to debts. § 1123. Legacy to debtor does not release debt. § 1123 a. Cumulative legacies. § 1123 b. Construction of an English will as satisfaction for the provisions of a Scottish settlement. § 1123 c. What is necessary to create a case of election.] § 1075. It is in cases of wills also, that the doctrine respecting ELECTION AND SATISFACTION must frequently, though not exclusively,1 arise in practice, and is acted upon and enforced by courts 1 There is no question that the doctrine of election extends to deeds in the English law. See the cases cited in Mr. of equity.1 Election, in the sense here used, is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is clear intention of the person, from whom he derives one, that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other. The party, who is to take, has a choice, but he cannot enjoy the benefits of both.2 § 1076. Thus, for example, if a testator should, by his will, give to a legatee an absolute legacy of ten thousand dollars, or an annuity of one thousand dollars per annum during his life, at his election; it would be clear that he ought not to have both; and that he ought to be compelled to make an election, whether he would take the one or the other. This would be a case of express and positive election. But suppose, instead of such a bequest, a testator should devise an estate belonging to his son, or heir-atlaw, to a third person; and should, in the same will, bequeath to his son, or heir-at-law, a legacy of one hundred thousand dollars, or should make him the residuary devisee of all his estate, real and personal. It would be manifest, that the testator intended that the son or heir should not take both to the exclusion of the Swanst. 400, 401. Mr. Swanston seems to think that the doctrine of election in the civil law was confined to wills; and originated in the like application to wills in English jurisprudence. Perhaps it is questionable, whether, in the civil law, the doctrine was confined to wills. These were the most common instruments under which it would arise; and that may account for most of the cases being put as arising on wills. But the principle, in its own nature, seems equally applicable to other instruments. 1 Birmingham v. Kirwan, 2 Sch. & Lefr. 449; 2 Mad. Pr. Ch. 40 to 69; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 5, p. 534 to 537; 1 Roberts on Wills, ch. 1, § 10, p. 96 to 106; 2 Roper on Legacies, by White, ch. 23, p. 480 to 579. [* The devise of an estate does not per se import an intention to devise it free from encumbrance, so as to put encumbrancers to their election. Stephens v. Stephens, 1 De Gex & J. 62. Such a devise, upon condition that the devisee should confirm such other devises in testator's will as had reference to the property of S. U. requires that the devisee should elect whether he will hold from S. U. or under the will. Usticke v. Peters, 4 Kay & Johnson, 437. See also Wintour v. Clifton, 21 Beavan, 447.] 2 Mr. Swanston's note to Dillon v. Parker, 1 Swanst. 394, note (b); 3 Wooddes. Lect. 69, p. 491; Thellusşon v. Woodford, 13 Ves. 220; 2 Mad. Pr. Ch. 40 to 49; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 5, p. 534 to 538. Mr. Swanston's note is drawn up with great ability and learning; and I have freely used it in the discussion of this topic. The whole subject of election is also most elaborately examined in Roper on Legacies by White, vol. 2, ch. 23, p. 480 to 578, to which the attention of the learned reader is invited. It is wholly inconsistent with the nature of these Commentaries to discuss all the minute distinctions belonging to it, interesting and important as they certainly are. other devisee; and therefore he ought to be put to his election which he would take; that is, either to relinquish his own estate or the bequest under the will. This would be a case of implied or constructive election.1 § 1077. Now, the ground upon which courts of equity interfere in all cases of this sort (for at law there is no direct remedy to compel an election) is, that the purposes of substantial justice may be obtained by carrying into full effect the whole intentions of the testator. And in regard to the cases of implied election, it has been truly remarked, that the foundation of the doctrine is still the intention of the author of the instrument; an intention, which, extending to the whole disposition, is frustrated by the failure of any part. Its characteristic, in its application to these cases, is, that by equitable arrangement, full effect is given to a donation of that which is not the property of the donor. A valid gift, in terms absolute, is qualified by reference to a distinct clause, which, though inoperative as a conveyance, affords authentic evidence of intention. The intention being assumed, the conscience of the donee is affected by the condition (although it is destitute of legal validity), not express, but implied, which is annexed to the benefit proposed to him. For the donee to accept the benefit, while he declines the burden, is to defraud the design of the donor.3 In short, courts of equity, in such cases, adopt the rational exposition of the will, that there is an implied condition that he, who accepts a benefit under the instrument, shall adopt the whole, conforming to all its provisions, and renouncing every right inconsistent with it.4 1 See citations of note 2, § 1076. [The bringing a suit which is not prosecuted is not an election. Winship v. Winship, 43 Ind. 291.] 4 1 Powell on Devises, by Jarman, 430, 433, note (4); 1 Swanst. 393 to 408, note (b); Frank v. Lady Standish, 15 Ves. 391, note; Streatfield v. Streatfield, Cas. T. 2 Crosbie v. Murray, 1 Ves. Jr. 557, Talb. 183; Boughton v. Boughton, 2 Ves. 559. 31 Swanston, 394, 395, note (b), where the authorities are fully collected; Noys v. Mordaunt, 2 Vern. 581, and M. Raithby's note; s. c. Gilb. Eq. 2; 2 Fonbl. Eq. B. 4, ch. 1, § 5, note (1). [* There is no rule that a person to whom the testator has made two distinct gifts, one of which is subject to a burden, created by the testator, is bound to accept both or neither of these gifts. The question is one of intention to be gathered from the will. Warren v. Rudall, and Hall v. Warren, 6 Jur. N. s. 395.] 12, 14; Boome v. Monck, 10 Ves. 616, 617; Walker v. Jackson, 2 Atk. 627, 629; Clarke v. Guise, 2 Ves. 617; Wilson . Lord Townshend, 2 Ves. Jr. 696; Blake r. Banbury, 4 Bro. Ch. 21, 24; s. c. 1 Ves. Jr. 514; Thellusson v. Woodford, 13 Ves. 220; 2 Mad. Pr. Ch. 40 to 49. Lord Redesdale's remarks on this subject, in Birmingham v. Kirwan (2 Sch. & Lefr. 449, 450), illustrate the principle very clearly. "The general rule," says he, "is, that a person cannot accept and reject the same instrument. And this is the foundation of the law of election, on |