devise of after-acquired land, it will fall under the head of express conditions, and will be enforced under the doctrine of forfeiture, and not under that of equitable election, as was stated above. 300. Another case of election sometimes arises under powers. If, for example, A. has a power of appointment in favor of B., and in default thereof the property is limited to C., and A. exercises the power in favor of D., and by the same instrument gives a benefit to C., the latter must be put to his election. If he claims under the instrument, he must give effect to the defective execution of the power. If he claims adversely to the instrument, he must compensate the disappointed appointee out of the benefit which the instrument confers upon him.1 So, also, if there is a power to appoint to two, and the donee of the power appoints to one only, and gives a legacy to the other, he cannot claim the legacy and also dispute the validity of the appointment. But where a testatrix made an appointment under a power in favor of her son, which partially failed for remoteness, and made a general residuary appointment under the power to her daughters, to whom certain other benefits were also given; it was held that the daughters might claim the benefit of the appointment which had failed, without being put to their election in regard to their legacies. The reason of this decision was, that the daughters claimed the benefit of the appointment which had failed, not as persons who took in default of a proper execution of the power, but under the general residuary appointment; in other words, they claimed this fund, as well as the legacy, under the will, and not by any title adverse to the will; hence there was no room for the doctrine of election. The rule as to election is to be applied only as between a gift under a will and a claim dehors the will and adverse to it, and is not to be applied as between one clause in a will and 1 2 Sug. Pow. 148; note to Streatfield r. Streatfield, 1 Lead. Cas. Eq. 351; Whistler v. Webster, 2 Ves., Jr. 267; Coutts v. Ackworth, L. R 9 Eq. 519. See, also, Blacket v. Lamb, 14 Beav. 482; and the criticism in Snell's Eq. 174. 2 In re Fowler's Trust, 27 Beav. 362; Woolridge v. Woolridge, Johnson, 63; Churchill v. Churchill, L. R. 5 Eq. 44; 2 Spence, 520; 2 Sug. Pow. 148. Wollaston v. King, L. R. 8 Eq. 165. See Wallinger v. Wallinger, L. R. 9 Eq. 301. another clause in the same will. Where a person appoints to the object of the power, and gives him a legacy, and then directs him to settle the appointed property on persons who are not the objects of the power, a case of election is not raised, unless there is a clause of forfeiture on non-compliance with the directions.2 301. It was stated above, that one of the two requisites necessary to give rise to a case of election was that the donor should give property of his own. This may, also, be illustrated by a reference to the execution of powers. If A. has a power of appointment among B., C., and D., in default of the due execution of which B. is entitled to take; and A. exercises the power validly as to B., but invalidly as to C. and D.; B. is, nevertheless, entitled to make good his claim in default of the proper execution; because the benefit that he receives by virtue of the appointment is not a benefit fed (so to speak) out of property belonging to A., but is derived from that in which A. has no ownership, but only a power of appointment.3 302. Nor will a person be compelled to elect unless his property is attempted to be disposed of by the testator. Thus, where a testator assumed to dispose of the whole of a fund by virtue of a power in a settlement, and appointed a moiety thereof to C., and the other moiety to S., whose wife was in fact entitled to a moiety under the settlement, and S.'s wife subsequently died, and S. administered upon her estate, it was held that there was no case for an election, because the gift, under the will, was to him in his own right, and his claim adversely to the will was as the representative of his wife; in other words, his property was not attempted to be disposed of by the gift to C. 303. The doctrine of election only obtains in those cases in which the twofold gift is made by the same instrument. If, therefore, a benefit is conferred by deed upon a person whose property the donor afterwards affects to dispose of by will, this is no case 1 Per James, V. C., in Wollaston v. King, L. R. 8 Eq. 174. 2 King v. King, 15 Irish Ch. 479, overruling Moriarty v. Martin, 3 Irish Ch. R. 26. 3 Bristow v. Warde, 2 Ves., Jr. 336; In re Fowler's Trust, 27 Beav. 362. 4 Grissell v. Swinhoe, L. R. 7 Eq. 291. See Cooper v. Cooper, L. R. 6 Ch. App. 21, and Wilkinson v. Dent, Id. 339. of election, because the donee is not called upon to attack and Evidence dehors the instrument is not admissible.1 It is immaterial whether the testator knew that the property was not his own, or conceived it to be his own. The doctrine of election will exist in either case. Cases of no little difficulty, however, sometimes arise where a testator assumes to deal with property in which he has but a limited interest. Where he has any interest at all, the leaning of the courts is towards a construction which would make him deal only with that to which he is entitled, and not with that over which he had no disposing power, inasmuch as every testator must prima facie be taken "to have intended to dispose only of what he had power to dispose of, and in order to raise a case of election, it must be clear that there was an intention on the part of the testator to dispose of what he had not the right or power to dispose of." Moreover, it may be stated generally that the intention to raise an election must be a clear one; for a party will never be put to his election upon a doubtful construction.* 304. As to the manner in which an election may be made, it may be either by some decisive act by which the party may be at once estopped from afterwards setting up any title adverse to the disposition to which he has thus given effect,5 or by some silent acquiescence in the changed condition of things upon the faith of which other parties have acted and acquired rights which it would be inequitable afterwards to disturb. But a Clementson v. Gandy, 1 Keen, 309; 2 Whistler v. Webster, 2 Ves., Jr. 367; Wintour v. Clifton, 8 De G. M. & G. 641; Shuttleworth v. Greaves, 4 My. & Cr. 35; Dummer v. Pitcher, 2 My. & Keen, 262. See Wilkinson v. Dent, L. R. 6 Ch. App. 339. 376; Hall v. Hall, 1 Bland, 130; McEl- 5 See Snell's Principles of Equity, 182. 4 Wilson v. Arny, 1 Dev. & Bat. Eq. Hart, 7 Dana, 1. bare acquiescence, without a deliberate and intelligent choice made under a full knowledge of all the circumstances, and of the party's rights, will not be an election.1 If the fact of election is doubtful, it may be sent to a jury for determination.2 Parties competent to make an election must usually be sui juris, but elections may sometimes be made by a court of equity on behalf of infants and married women.3 A party compelled to elect is entitled to know the value of the properties previous to election; and may file a bill to have all necessary accounts taken." 305. It was at one time doubted whether the consequences of an election, adverse to the will of the donor, were to be measured by the theory of forfeiture, or by that of compensation; that is to say, whether the gift was absolutely forfeited by the refractory donee for the benefit of the disappointed beneficiary, or whether the donee was only obliged to make good the other gift to the extent of its value. The law is now settled in favor of the doctrine of compensation." 306. It was said by Sir Wm. Grant, in Kidney v. Coussmaker," that the doctrine of election did not apply in the case of a creditor. This dictum is true enough if confined only to those cases in which property is charged by will with debts; for in such a case the creditor may claim the benefit of the charge, and still seek satisfaction of his debt out of other assets. But the rule is, nevertheless, not of universal application; for it has been decided that where a creditor decisively acquiesces in a certain disposition of the debtor's property, he will not be allowed to Duncan v. Duncan, 2 Yeates, 302; Snelgrove v. Snelgrove, 4 Desaus. 274; 1 Lead. Cas. Eq. 419 (Am. note). ♦ Boynton v. Boynton, 1 Bro. C. C. 445 ; Buttricke v. Brodhurst, 3 Bro. C. C. 88; Kreiser's Appeal, 19 P. F. Sm. 200. See, 2 Roundel v. Currer, 2 Bro. C. C. 67; however, Douglas v. Douglas, L. R. 12 1 Swanst. 383, n. Davis v. Page, 9 Ves. 350; Barrow v. Barrow, 4 K. & J. 409; Willoughby v. Middleton, 2 J. & H. 344; Addison v. Bowie, 2 Bland, 606; Streatfield v. Streatfield, Cas. Temp. Talbot, 176; 1 Lead. Cas Eq. 333. Eq. 637. 5 Buttricke v. Brodhurst, 3 Bro. C. C. 88; 1 Ves., Jr. 171. 6 Spread v. Morgan, 11 H. L. Cas. 588; Key v. Griffin, 1 Rich. Eq. 67; Stump v. Findlay, 2 Rawle, 174. 7 12 Ves. 136. enforce the collection of his debt by proceedings by which that disposition may be violated. Thus, if a creditor accepts a dividend under an assignment for the benefit of creditors, he will not afterwards be allowed to avoid that assignment in order to render the assets covered thereby liable to execution for his debt.1 CHAPTER V. CONVERSION AND RECONVERSION. 307. General nature and extent of equi- | 316. Ackroyd v. Smithson; Smith v. Clax 311. In what ways a trust to convert may 320. Time from which a conversion takes 312. Question of conversion one of inten- 321. Conversion under optional contracts. 322. Reconversion may be by act of party tion. 313. Contract, to work a conversion, must be binding. 314. General results of a conversion; or by act of law. 323. Election to reconvert may be either by express declaration, or by acts. 324. By whom such election may be made. 315. Failure of the purposes of a con- 325. Reconversion by operation of law. version; resulting trust. qualifications. 307. By Equitable Conversion is meant a change of property from real into personal, or from personal into real, not actually taking place, but presumed to exist only by construction or intendment of equity. "Nothing" (it has been said) "is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted, and this in whatever manner the direction is given, whether by will or by way of contract, marriage articles, settlement, or otherwise; and whether the money is actually deposited, or only covenanted to 1 Adlum v. Yard, 1 Rawle, 163; Perry on Trusts, & 596. |