[* § 1080 a. In a late case1 the question of the competency of persons under disabilities, to make valid elections affecting their of repugnancy. In no instance, it is believed (with the exception of the anomalous cases last cited), has a court of law adverted to a clause, by which a testator assumes to dispose of the property of his devisee in favor of a third person, for the purpose of declaring the right of the devisee to the benefit offered by the will, repugnant to his right to retain the property, of which that clause purports to dispose. It is obvious that such a clause, proceeding from one who is not the owner, cannot transfer the legal interest in the property. Being distinct and unconnected, without words or necessary implication of reference, it cannot qualify the prior clause of devise as a condition. Nor can it operate by estoppel against the devisee, no party to the will, and whose title to his own estate is not derived from the testator. Failing, therefore, to effect, it serves only to denote the purpose of its authority; and becomes the peculiar subject of the jurisdiction of a court of equity, which, in administering the rights of its suitors, by enforcing the obligations affecting their conscience, executes the intention in which those obligations originate. The instances in which courts of law have applied the maxim, Allegans contraria non est audiendus, are instances of inconsistent titles, whether to the same subject, as a contemporaneous estate for life, and in tail, in the same land (see Jenkins, Cent. 1, Case 27); or the claim of a tenant under and against his landlord (mentioned by Lord Rosslyn, 2 Ves. Jr. 696); or to different subjects, as dower at once in the land taken, and in the land given in exchange (see the case cited 3 Leon. 271, Perk. § 319); the assertion of one title being incomplete without a negation of the other. It is a maxim, not of morality, but of logic, and compels election between claims, in respect, not of the injustice, but of the technical impracticability of their contemporaneous assertion. In courts of law, the suitor is permitted to assert rights which, so far as the intention of the parties constitutes repugnancy, are confessedly repugnant. If a man can make a feoffment in fee of lands or tenements, either before or after marriage, to the use of the husband for life, and after, to the use of A. for life, and then to the use of the wife for life, in satisfaction of her dower; this is no jointure, within the statute, &c.; and albeit in that case A. should die, leaving the husband, and after the death of the husband, the wife entereth, yet this is no bar of her dower, but she shall have her dower also. [Co. Litt. 36 b, and see 4 C. 2b, Wilmot's Opinions, p. 188; 9 Mod. 152.] So, if A. disseises B., tenant for life, or in fee, of the manor of Dale, and afterwards gives the manor of Dale to B. and his heirs, in full satisfaction of all his rights and actions, which he has in or for the manor of Dale, which B. accepts; yet B. may enter into the manor of Dale, or recover it in any real action. 4 Co. 1 b. No legal principle is better established than that on which these decisions proceed, namely, that a freehold right shall not be barred by collateral satisfaction. [Co. Litt. 3 b, Doct. Plac. 17.] The like assertion of rights, morally repugnant, has been sanctioned in many of the cases in which the courts have overruled a plea of accord and satisfaction (see Peyton's case, 9 Co. 77; Grymes v. Blofield, Cro. El. 541; Co. Litt. 212); the plaintiff being permitted, on techni cal grounds, to enforce a claim for which he had received a compensation. A de vise or bequest of that which is not the property of the testator, is void at law. [Bransby v. Grantham, Plowd. 525, 526; Litt. § 287; Co. Litt. 185 b; Perk. § 526; Godolph. Orph. Leg. Pt. 3, ch. 6, § 5, Swinb. on Wills, Pt. 3, § 3, n. 8, § 5, prope finem § 6, n. 17; Doct. & Stu. 1. 2, ch. 25, p. 126.] ‘If a man bequeath to one another man's horse, in the law of the realm the legacy is void to all intents, and he to whom the legacy is made shall neither have the horse nor the value of the horse.' [Id. 1. 2, ch. 55, p. 300; and see 3 Co. 29 a.] To suppose that title to real estate, is discussed very much at length and the cases revised, by an eminent equity judge, Sir William Page Wood. more favor would be shown to a clause in a deed, purporting to pass the property of a stranger, would be to contradict the established principle of construction. Being void, thereof, to all intents, such clause, whether in a deed or in a will, is inoperative at law, either for transferring the subject, or for qualifying a previous valid gift. To convert it into a condition, according to the equitable practice, by incorporation with a distinct clause, to which in terms it contains no reference, would be inconsistent with the rule, that conditions imposed by the particular intention of the individual (as distinguished from conditions founded in the nature of the relation or contract between the parties, and by us denominated conditions in law) must, conformably to the feudal principle (Craig, Jus. Feud. 1, 2, dieg. 5, § 4), be expressed. Co. Litt. 201 a. Many decisions may be found on the question, what words, annexed to the clause of gift for the purpose of connecting it with a distinct clause, constitute a condition. Ex intentione ad affectum, which are sufficient in a will (Co. Litt. 236 b), are not sufficient in a deed (Co. Litt. 204 a). But in no case, it is believed, has a court at law inferred a condition from words applicable only to another subject, and void in their obvious sense, as purporting to pass an estate not the property of the author of the clause. The general principle of the law on the subject of repugnant rights is illustrated by the decisions on the concurrent claims to jointure and to dower. The Statute of Uses (27th Hen. VIII. ch. 10) having transferred the legal estate to the cestui que use, all women, then married, would have become dowable of lands held to the use of their husbands, retaining their title to lands settled on them in jointure. To prevent this injustice, it is, by that statute (§ 6), declared, that a woman having an estate in jointure with her husband (five species of which are enumerated) shall not be entitled to dower. And a subsequent clause (§ 9) reserves to the wife a right to refuse a jointure assured during marriage. [See Wilmot's Opinions, p. 184 et seq.] It has been decided, that the species of estates enumerated are proposed only as examples; and the courts have in construction extended the operation of the statute to other instances within its principle, though not within its words. Vernon's case, 4 Co. 1. By the effect of this statute, therefore, no widow can claim both jointure and dower; jointure before marriage is a peremptory bar of dower; jointure after marriage, she has an option to renounce. Lord Redesdale, in support of the proposition, that election is a principle of law (2 Sch. & Lefr. 451), has referred to 3 Leonard, 273. That report (which is cited in 1 Eq. Cas. Abr. Dower, B) contains only the argument of Egerton, Solicitor-General. But the case (Butler v. Baker) is fully reported in 3 Co. 25; Poph. 87; 1 And. 348; and the decision proceeded on the construction of the statute. The passage to which Lord Redesdale refers (3 Leon. 272 and 278) is no more than a dictum of Egerton, in his argument. It is true, however, that the demandant, in a writ of dower, might be barred by plea of entry and acceptance of lands settled in jointure after marriage (Doctrina, Plac. p. 149). See the form of pleading, Co. Entr. 172 a. But it is also true, that the plea is founded on the act of Hen. VIII. The act having declared jointure a bar to dower, but reserved to the widow the option of refusing a jointure made after marriage, the question in that case was, 'Whether the widow had accepted or refused the jointure?' If she had not refused, under the 9th, she was barred of dower by the 6th section. The acceptance of the jointure constituting the case there specified, the widow was barred, not by her agreement, but by the statute (Dyer, 317 a). And it is abun dantly clear that acceptance alone, with out the operation of the statute, would not have formed a bar. Vernon's case, 4 Co. 1; Duchess of Somerset's case, Dyer, 97 b. In Gosling v. Warburton (Cro. El. 128, reported under various names, 1 Leon. 136, Owen, 154), also cited by Lord Redesdale, and also referred to in Eq. Cas. Ab. ubi supra, a The conclusion to which this eminent judge1 came is, that a married woman can elect so as to affect her interest in real estate, without deed, acknowledged according to the requisite formalities of the statute; and that where she has, in fact, made such election upon which other parties have acted, the court can order a conveyance accordingly, the ground of such order being that no married woman shall avail herself of benefits arising from a fraud. In discussing this subject the learned judge relied upon Savage v. Foster and Gretton v. Haward,2 as fully recognizing the rule upon which he acted; and he maintained, that the views of Lord Eldon, in Jackson v. Hobhouse, when properly considered, could not fairly be regarded as impugning the doctrine for which he contended. The proposition here maintained, in its application to the cases of married women and infants, and all others laboring under temporary disabilities, rendering them the objects of judicial protection, is so just and reasonable that we should be surprised if, with proper limitations and exceptions, it did not ultimately rent-charge was devised expressly in recompense of dower. And the decision establishes only, that such a benefit so devised is a jointure within the extended construction of the statute, and cannot be claimed after a recovery of dower.' The series of decisions under this statute (the only instances in which the doctrine of election has been applied at law, in a manner analogous to its application in equity), being founded expressly on the provisions of the statute, in contrast to the rules of the common law, constitute (it is conceived) a conclusive proof that the doctrine of election is equitable only. And one of the earliest instances (Lacy v. Anderson, ante) in which the equitable doctrine was enforced, is the case of a copyhold estate devised and accepted, in satisfaction of dower, which, not being either within the strict or the extended import of the stat ute, a jointure would not have constituted bar at law. And the aid of equity was requisite, to prevent the disappointment of the testator's express intention. Accordingly, many authorities occur, in which the doctrine of election is described as exclusively equitable. In the report of Noys v. Mordaunt, by Chief Baron Gilbert, it is distinctly stated, that, although the three daughters shall at law take their proportion of the entailed lands, as co-heirs in tail, yet the eldest daughter in equity shall have an equiva lent out of the fee-simple lands.' [Rep. in Eq. 3.] Lord Hardwicke repeatedly refers to that case, which he considered the first of the kind as founded on equity (1 Ves. 306; 3 Bro. P. C. edit. Toml. 178, 179), a benevolent equity (3 Atk. 715); and describes the right to compel election, as derived from an equity of the Court of Chancery (2 Atk. 629). That description is, in substance, adopted by Lord Eldon (6 Dow, 179). Lord Chief Justice De Grey has accurately distinguished between the mode of indirectly disposing of the property of a stranger by express condition at law, or by implied condition in equity (3 Ves. 530). And Lord Commissioner Eyrie describes the practice of putting devisees to election, as a strong operation of a court of equity (4 Bro. C. C. 24; 1 Ves. Jr. 523)." [Synge v. Synge, L. R. 9 Ch. App. 128.] 1 [* 9 Mod. 35. But see Griggs v. Gibson, L. R. 1 Eq. 685. That a married woman can elect as to personalty seems settled. Ibid. 21 Swanst. 413. prevail. The cases of Lassence v. Tierney,' and Field v. Moore,2 are there explained and made consistent with the decision of the learned Vice-Chancellor. § 1080 b. It seems courts of equity will not aid a married woman in giving up property settled upon her, with restraint upon anticipation, although she would thereby become entitled to property of much greater value.3 But where she has settled at the same time, but by different instruments, some property which is settled with restraint upon anticipation and some without that restraint, and subsequently violates the rights of those entitled in remainder, by converting the entire interest in a portion to her own use, the court will apply the property settled to her separate use, without such restraint, to make an indemnity to those entitled in remainder. It was held that she could not in any way so conduct as to affect the fund which had thus been put beyond her reach, by the restraint upon anticipation.*] § 1081. But, whatever may be the truth of the case as to the recognition of the doctrine of election in courts of law, it is very certain that it is principally enforced in courts of equity, where, indeed, the jurisdiction to compel the party to make an election is admitted to be exclusive. But, independent of this broad and general ground of jurisdiction, the doctrine must be exclusively enforced in equity, in all cases of mere trust estates; or where there is the intervention of complicated cross equities between different persons, claiming in different degrees, and under different limitations and titles; or where conveyances are necessary to be decreed; or where the recompense is not of a nature, capable of being applied as a bar at law. Thus (to put a plain case), at the common law no collateral recompense, made in satisfaction of dower, or of a right of freehold, could be pleaded in bar of such right of freehold or of dower.5 But, in equity, it would be clearly held obligatory; and the party would be perpetually enjoined 1 1 Macn. & Gor. 551. 2 19 Beavan, 176. As to whether a married woman or her heir can be put to an election by marriage articles, operative as to personal estate, but not as to real estate because entered into by her when a minor, and not confirmed, see Campbell v. Ingilby, 21 Beav. 567; 1 De G. & J. 393; Willoughby v. Middleton, 2 J. & H. 344; Brown v. Brown, L. R. 2 Eq. 481; Codrington v. Lindsay, L. R. 8 Ch. App. 578. 8 Robinson v. Wheelwright, 6 De G., M. & G. 535. See also Jackson v. Hobhouse, 2 Meriv. 483. 4 Clive v. Carew, 5 Jur. N. s. 487; B. C. 28 L. J. N. s. 685.] 5 Co. Litt. 36 b; 1 Swanst. 426, 427, note; ante, § 1080, note (4). against asserting the title at law, or put to an election, as the circumstances of the case might require.1 § 1082. In the actual application of the doctrine of election, courts of equity proceed upon principles, which are wholly incapable of being enforced in the like manner by courts of law. Thus, for example, suppose a case of election under a will, which disposes of other property of a devisee; and the devisee should elect to hold his own property, and renounce the benefit of the devise under the will, or (as the compendious phrase is) should elect against the will; in such a case, it is clear, that the party disappointed of his bequest or devise by such an election, would, at law, be wholly remediless. The election would terminate all the interest of the parties respectively in the subject-matter of the devise to them. The election to hold his own estate would, of course, maintain the original title of the devisee; and his renunciation of the intended benefit in the estate devised to him would leave the same to fall into the residuum of the testator's estate, as property undisposed of. § 1083. But the subject is contemplated in a very different light by courts of equity; for, in the event of such an election to take against the instrument, courts of equity will treat the substituted devise, not as an extinguished title, but as a trust in the devisee for the benefit of the disappointed claimants, to the amount of their interest therein; or, as it has been well expressed, they will assume jurisdiction to sequester the benefit intended for the refractory donee, in order to secure compensation to those whom his election disappoints.2 § 1084. The reasoning, by which this doctrine is sustained, has been stated by Sir William Grant, in his usual clear and felicitous manner. "If," said he, "the will is in other respects so framed as to create a case of election, then not only is the estate given to the heir under an implied condition that he shall confirm the whole of the will; but, in contemplation of equity, the testator means, in case the condition shall not be complied with, to 1 Ibid.; Lawrence v. Lawrence, 2 Vern. 366, and Mr. Raithby's note (1); 1 Swanst. 398, note. Gretton v. Haward, 1 Swanston, 441, note; Green v. Green, 2 Meriv. 86; 8. c. 19 Ves. 665; Pulteney v. Lord Darlington, cited in Green v. Green, 2 Meriv. 93, 94, and in Cavan v. Pulteney, 2 Ves. Jr. 560. [So where a widow elects to waive the provisions of her husband's will, under the statutes as to waiver. Roe v. Roe, 6 C. E. Green, 253; Plymp ton v. Plympton, 6 Allen, 178; Firth v. Denny, 2 Allen, 468.] |