A party claiming under an instrument, raising, as he contends, a case of election in equity against a party in possession under a legal right, must make out a clear and satisfactory case to entitle him to displace the legal right.
Where, under the will of a son, giving benefits to his father, but of doubtful construction, there was no evidence that the father understood that a case of election was raised by the will, or that in fact he elected to take under it, and to give up estates disposed of by the will, to which he was entitled under a marriage settlement; and where it was in evidence that the father did acts in opposition to the will of the son ; and where, by his own will, he so disposed of the estates, that his daughters might either claim life estates under that will, or estates in fee under the will of the son ; and it was in evidence that they by letters declared and executed deeds, reciting that they took as tenants for life under the will of their father ; and especially where the equity, if any, arose forty – three years before the suit, and the daughters had then the opportunity to call on the father to elect and failed to do so : Held, that it was doubtful whether a case of election existed, and that a party claiming under the daughters as heir could not assert such right after such lapse of time in a court of equity.
Where possession is referrible to either of two inconsistent rights, the acts of a party bound to elect, in order to constitute election, must imply a knowledge of the rights, and an intention to elect.
Citations:
[1833] EngR 137, (1833) 7 Bligh NS PC 325, (1833) 5 ER 796
Links:
Jurisdiction:
England and Wales
Equity, Wills and Probate
Updated: 30 June 2022; Ref: scu.318131
