or against a will may be manifested in cther modes. An express and positive declaration by the party who is required to elect, to the effect that he accepts one or the other of the two inconsistent benefits, is usually conclusive of an intention to elect. So the fact that the person who has the right to elect expresses satisfaction, orally or in writing, with the provisions of the will which are in his favor, is strong evidence of his intention to abide by it. And expressions of satisfaction, coupled with an entry upon the lands devised; or, where no actual entry or occupation is possible; where he receives and enjoys the rents and profits of the land; and a fortiori, where he conveys the land devised to him to another by sale or mortgage, may raise a conclusive presumption that he has elected to take under the will. Having gone so far in asserting his claim to the estate which the will gave him, he cannot be heard to object to its provisions; for, by taking title under the will, he has recognized the force and validity of its provisions for all purposes, and is estopped to assert that it is inoperative as regards the claims of others.2

1 Craig v. Walthall, 14 Gratt. (Va., 510; Smart v. Easley, 5 J. J. Marsh. 1858), 518, 525.

2 Reeves v. Garrett, 34 Ala. 563; Clark v. Hershey, 52 Ark. (1889), 473, 12 S. W. R. 1077; Burroughs v. De Couts, 70 Cal. 371, 11 Pac. R. 734; Bennett v. Packer, 39 Atl. R. 739, 741 (Conn., 1898); Shivers v. Goar, 40 Ga. 676; Sewell v. Smith, 52 Ga. (1874), 567; Vanzant v. Bigham, 76 Ga. (1886), 759; King v. Skellie, 94 Ga. 147, 3 S. E. R. 614; In re Smith, 108 Cal. 116. 40 Pac. R. 1037; Fry v. Morrison, 159 Ill. 254, 42 N. E. R. 774; Davis v. Hoover, 112 Ind. (1887), 423, 14 N. E. R. 468; Larkin v. McManus, 81 Iowa, 724, 726; Richart v. Richart, 30 Iowa, 465; Stoddard v. Cutcompt, 41 Iowa, 329; Herr v. Herr, 90 Iowa, 538, 58 N. W. R. 897; Reppert v. Pel lizzarro, 83 Iowa, 497, 500, 50 N. W. R. 19; Craig v. Conover, 80 Iowa, 353, 355; In re Franke's Estate, 97 Iowa, 704, 66 N. W. R. 918; Gore v. Stevens, 1 Dana (31 Ky., 1833), 201, 204; Grider v. Eubanks, 12 Bush (75 Ky., 1877),

(28 Ky., 1830), 215; Smith v. Bone, 7 Bush (Ky., 1870), 367; Weeks v. Patten, 18 Me. (1841), 42; Sanders v. Sanders, 22 Miss. 81, 87 (1850); Macknett v. Macknett, 29 N. J. Eq. 54; Jones v. Powell, 6 Johns. Ch. (N. Y.) 194, 199; Thompson v. Hook, 6 Ohio St. 480; Fulton v. Moore, 25 Pa. St. 368; Bradfords v. Kent, 43 Pa. St. 474; Cox v. Rogers, 77 Pa. St. 160; Chace v. Gregg, 88 Tex. 552, 32 S. W. R. 520; Waterbury v. Netherland, 6 Heisk. (Tenn.) 512; Hatch's Estate, 60 Vt. 160, 18 Atl. R. 814; Craig v. Walthall, 14 Gratt. (Va.) 518, 525; Beem v. Kimberly, 72 Wis. 343, 39 N. W. R. 542. See also Wake v. Wake, 1 Ves. Jr. 335, 3 Bro. C. C. 255; Padbury v. Clarke, 2 Macn. & G. 298, 306, 307; Dillon v. Parker, 1 Sw. 359, 380, 387; Spread v. Morgan, 11 H. L. Cas. 588; Sopwith v. Maugham, 30 Beav. 235; Dewar v. Maitland, L. R. 2 Eq. 834; Campbell v. Ingilby, 21 Beav. 582; Tibbitts v. Tibbitts, 19 Ves. 663. Tes

The legal presumption is that a widow knew, if she accepted a legacy, she would be barred from claiming against the will. Whether the facts as proved constitute an election is always a question of law to be determined by the court.1

It cannot, as matter of law, be said that the fact that the person who has the right to elect accepts the office of executor under the will, performs the duty of that office and receives proper compensation therefor, or even a specific legacy for his trouble, which would be remuneration for services and not bounty, constitutes an election on his part to take under the will. Thus, in Massachusetts it was held that the mere receipt of compensation by a husband, who was his wife's executor, did not constitute an election by him to abide by his wife's will which gave him no property.2

The contrary has been held where a husband wrote his wife's will, qualified and acted as executor under it, paid debts and legacies, filed his accounts and received his compensation as the executor. He was held to have elected to take under the will. But in each case he had paid to himself, as legatee, the

tator's widow, who was given a life estate in realty and specific personal chattels by the will, with a direction that she would convey her own realty to testator's son, did not, by entering into possession of such realty and chattels, elect to take them and convey her own estate, where she also kept the latter, and no affirmative action was had to compel her to so elect. Shanley v. Shanley, 54 N. Y. S. 653. An election to take land, either for or against the will, is shown by mortgaging or selling it. Pratt v. Felton, 4 Cush. (Mass.) 474; Borden v. Ward (S. C., 1889), 9 S. E. R. 300; Rogers v. Jones, L. R. 3 Ch. Div. 688. If a wife accepts a legacy she will be barred of dower after enjoying the same for a year and acquiescing in the sale of land in which she was dowable. Jones v. Powell, 6 Johns. Ch. (N. Y.) 194, 199.

1 Elton v. Moore, 25 Pa. St. 368. A widow who has accepted personal

property bequeathed to her, and has also received from the executor the rents of land given her in lieu of dower, will prima facie be presumed to have consented to take under the will, and the burden of proof is then on her to show that she had not made an election or renounced her dower. Hill v. Hill (N. J. Eq., 1898), 41 Atl. R. 943. A legatee's recognition of the executor named in the will by executing an order on the executor to pay a third person a specified sum, where the legatee herself received nothing therefrom, and the money was paid from a fund undisposed of by the testator, does not constitute an election to take under the will, so as to estop the legatee from denying its provisions, where such act caused no injury to the other legatee. Pryor v. Pendleton (Tex., 1898), 47 S. W. R. 706.

2 Tyler v. Wheeler, 160 Mass. 206, 35 N. E. R. 666.

sums of money which the testator had bequeathed to him.1 On the other hand, the fact that the widow qualifies as the executrix of her late husband, takes possession of the land and sells under a power of sale conferred upon her as executrix, does not show an intention upon her part to take under the will, as she acts solely as an executrix and not for herself individually. But where the widow, having been appointed executrix, in her account as such took credit for a balance of personal property retained by the executrix according to the will, it was held that she had elected to take under the will.3

§ 736. Not material that the testator supposed he owns the property devised. It is not material, in determining whether a party is put to an election, that the testator, in disposing of that person's property, was in error as to its ownership, or that the testator in fact knew that he had no title to it. In either case if the party whose property is given away decides to take against the will, he must relinquish his legacy under the will. While the presumption is that a testator intends to give only his own property, his actual knowledge of his title or lack of title is usually unascertainable; and where accurate knowledge is impossible, speculation and conjecture are useless; “for," as was said by an eminent equity authority, "nothing can be more dangerous than to speculate upon what he would have done had he known one thing or another." The assertion of title by A., under a deed from B., conveying to A. land which both believed belonged to P. by inheritance from C., being ignorant of the fact that C. had, by will, devised it to A. as a separate estate (the will not having been discovered and admitted to probate till after the death of B.), does not estop A. from claiming the property under the will of C.5

§ 737. Election by infants and incompetent persons.— An infant, though he has a right, has no capacity to elect. Nor

1 Coe's Appeal, 64 Conn. 352, 30 Atl. R. 140; Scholl's Appeal (Pa., 1889), 17 Atl. R. 206.

2 Procter's Estate, 103 Iowa, 232,237. 3 Fulton v. Moore, 25 Pa. St. 368. 4 By Sir R. P. Arden, in Whistler v. Webster, 2 Ves. Jr. 370. See also Thelluson v. Woodford, 13 Ves. 221; Gore v. Stevens, 1 Dana (Ky.), 201, 204; Weeks v. Weeks, 77 N. C. 421, 424.

5 Rasberry v. Harville (Ga.), 16 S. E. R. 299. See also Whistler v. Webster, 2 Ves. Jr. 367, 370; Welby v. Welby, 2 Ves. & Bea. 190, 199; Whitley v. Whitley, 31 Beav. 173; Coutts v. Ackworth, L. R. 9 Eq. 519; Boscawen v. Scott, L. R. 26 Ch. Div. 358.

6 Hamblett v. Hamblett, 6 N. H. (1832), 333; Robertson v. Stevens, 1 Ired. (36 N. C., 1841), Eq. 247, 251; Mc

can his guardian elect for him, unless pcrmitted to do so by a decree or order of a court having jurisdiction, which will be granted only upon proof of the facts showing a necessity that an election shall be made in this manner.1

An insane person or an habitual drunkard is incapable of electing, nor can his committee or guardian act for him in this respect, for the exercise of this right involves the exercise of a discretion which is beyond the general powers of the committee. When, however, it becomes necessary that a person who has not capacity to elect shall have an election made for him, a court of probate or a court of equity will, upon the presentation of a petition and proper proof of the essential facts, order a reference for the purpose of ascertaining if a necessity for an election exists; and also to determine how it shall be made so that it shall result most advantageously for the incompetent person. Having been placed in full possession of the facts, the court will by its officers elect for the person entitled. The same rule would be applied to the case of a lunatic or habitual drunkard under the charge of a committee.3

In equity a married woman has always possessed capacity to elect, and when she has made an intelligent election with a full understanding of her rights and of the value of the property involved, a court of equity will direct a proper conveyance to be made by her. If there is any doubt as to the circumstances of the election, or if the facts show that she is not in a position to make a free and intelligent choice, or one which will be for her best interests, a court of equity ought to order a reference to ascertain what will be most beneficial for her,

Queen v. McQueen, 2 Jones' Eq. (N. C.) 16; Tiernan v. Rowland, 15 Pa. St. 429.

1 Bassett v. Durfee, 87 Mich. 167, 49 N. W. R. 558; Huston v. McCune, 24 Ohio St. 11; Tomlin v. Jayne, 14 B. Mon. (Ky.) 162; Addison v. Bowie, 2 Bland Ch. (Md.) 606, 623; McQueen v. McQueen, 2 Jones' Eq. (55 N. C., 1854), 16; Grettan v. Haward, 1 Sw. 409, 413. 2 Andrews v. Bassett, 92 Mich. 449, 52 N. W. R. 743; Weeks v. Weeks, 77 N. C. 421, 424; Van Steenwyck v. Washburn, 59 Wis. 483; Addison v.

Bowie, 2 Bland Ch. (Md.) 606, 623; Flippin v. Banner, 2 Jones (N. C., 1856), Eq. 450; Chetwynd v. Fleetwood, 1 Bro. P. C. 300; Goodwyn v. Goodwyn, 1 Ves. 228: Bigland v. Huddlestone, 3 Bro. C. C. 285, n.; Gretton v. Haward, 1 Swanston, 409, 413; Ebrington v. Ebrington, 5 Madd. 117; Brown v. Brown, L. R. 2 Eq. 481; Griggs v. Gibson, L. R. 1 Eq. 655; Blunt v. Lack, 26 L. J. Ch. 148.

3 In re Marriott, 2 Moll. 516; Kennedy v. Johnson, 65 Pa. St. 451; Young v. Boardman, 97 Mo. 181.

and she will be decreed to elect accordingly. The femme coverte having made an intelligent election is bound thereby in the absence of fraud or mistake, and cannot subsequently renounce the property she has taken.?

$738. The doctrine of election in relation to the claims of creditors. A case for an election did not arise when, prior to the passage of the statute making real property assets for the payment of the simple contract debts of the testator, the testator devised lands for the payment of his simple contract debts and bequeathed his personal property to others. The creditor was not compelled to elect between the land which had been devised for the purpose of paying his claim and the personal property, which by the law was also assets in the hands of the executor for that purpose. He might exhaust the land thus devised and then have any deficiency made up out of the personal property bequeathed.3

§ 739. Election between gifts by the same will.- The doctrine of election, as the term is used in equity, has relation to a choice between a gift under the will and a claim against it. The term may sometimes be used in a restricted sense, as indicating a choice between two legacies given to one person by the same will. In this latter case the property is owned wholly by the testator. In giving two gifts he may express his intention that the legatee shall not have both, but shall select. Thus a testator may, in giving property by his will, direct that the legatee shall be permitted to choose in what form or character he may take it. And generally, where several pieces of prop

1 Robertson v. Stephens, 1 Ired. Eq. (N. C.) 247, 251; Pulteney v. Darlington, 7 Bro. P. C. 546, 547; Vane v. Lord Dungannon, 2 Sch. & Lef. 118, 133; Davis v. Page, 9 Ves. 350; Cooper v. Cooper, 7 H. L. Cases, 53, 67, 79, L. R. 6 Ch. App. 15, 21; Wilson v. Townshend, 2 Ves. Jr. 693, 697; Porsons v. Dunne, 2 Ves. 60; Robinson v. Buck, 71 Pa. St. 386.

2 Ardesoife v. Bennet, 2 Dick. 463; Wilder v. Piggott, L. R. 22 Ch. D. 263; Barrow v. Barrow, 4 Kay & J. 409, 18 Beav. 529; Sisson v. Giles, 11 W. R. 558, 32 L. J. (N. S.) 606; Smith v. Lucas, L. R. 18 Ch. D. 531; In re

Quead's Trusts, W. N. 1885, p. 99; Frank v. Frank, 3 My. & Cr. 171. See as to the power of a married woman to relinquish a reversionary right in action, Whittle v. Henning, 2 Phil. 731; Robinson v. Wheelwright, 6 De Gex, Mac. & G. 535, 546; Williams v. Mayne, 1 Irish R. Eq. 519; Robertson v. Stephens, 1 Ired. Eq. (N. C.) 247, 251; Tiernan v. Roland, 15 Pa. St. 430, 432.

3 Kidney v. Coussmaker, 12 Ves. 136; Clark v. Guise, 2 Ves. Sr. 617.

4 Baum v. Bowen (S. C., 1898), 31 S. E. R. 338; Ridgway v. Manifold, 39 Ind. 58, 63.