has appeared to them to show an intention that the issue should take, and this intention could be effected by the issue's taking derivatively through the ancestor, the courts, rather than the intention of the testator should absolutely fail of effect, have put such a construction in the devise as vested the inheritance in the ancestor himself. Such a construction brings all the parties intended to be benefited by the testator, within the operation of the devise, and thus satisfies the general intention of the testator, but in respect to the mode in which the testator would be thought, by the literal meaning of his language, to intend they should take, this materially varied and thus his particular intention is sacrificed"131. Where a will is wholly void, the doctrine of cy pres cannot be applied to sustain it132.

131. Butler's note on Fearne.

132. St. Amour v. Rivard, 2 Mich. 294.

CHAPTER XIV.

ELECTION.

$243. The Right in General.

$244. The Statutory Right.

$245. Common Law and Statutory Rule.

$246. Dower in Relation to the Doctrine of Election.

$247. Failure to File Notice of Election in Time.

$248. Presumption as to "In Lieu of Dower" Under Statutory Rule. $249. Who May Exercise the Right.

$250. Acts Constituting Election.

$251. Taking Under Will.

$252. Taking Against Will.

$253. Void Will Not to be Rendered Valid by Election.

$254. A Widow When Not Precluded.

$255. Taking Under Will Not Entitled to Dower in Addition.
$256. Second Wife's Interest in Will Providing for First Wife.
$257. Abatement.

§243. The Right in General.

Election is the right to choose between two alternative rights or claims, or it is the obligation imposed upon a party to choose between two inconsistent or alternate rights or claims in cases where there is a clear intention of the person from whom he derives one of the rights that he should not enjoy both. The doctrine is clear that where an elective gift is the object of the testator's bounty, if the rights conferred are not inconsistent, no election can take place,1 for the doctrine rests upon the equitable ground that no person will be permitted to claim inconsistent rights with regard to the same subject, and that any one who

1. Smith v. Jackman, 115 Mich. 192, 73 N. W. 228.

asserts an interest under a writing or document is bound to give full effect, as far as he can, to that writing or document, and it may be said that he who accepts a benefit under a deed or will must adopt the contents of the whole instrument; confessing to all its provisions and relinquishing every right inconsistent with it. Thus, where a fund is set aside by a testator for the use of his wife in that she could use the income as long as she chose or could demand a portion of the principal or the entire principal by giving three months' notice, either in writing or verbally, an election does not arise by which she must choose between the income and the principal3. An election may be expressed or implied. The question whether there has been election or not must be determined upon the circumstances in each particular case, for general principles are not available. The election may be inferred from the conduct of the party, his acts, omissions, and mode of dealing with the property. An election to take under a will may be inferred from unequivocal acts of ownership, with knowledge of the right to elect, and not through a mistake with respect to the condition and value of the estate1. The maxim has become established that no one is bound to elect who is ignorant of his rights. Thus, a person who is entitled to any benefit under a will or other writing, must, if he claims that benefit, abandon every right or interest, the assertion of which would defeat, in whole or in part, any of the provisions of the writing or document. The presupposition of a plurality of gifts or rights

2. Penn v. Guggenheimer, 76 Va. 846.

3. Smith v. Jackman, 115 Mich. 192, 73 N. W. 228.

4. Defreese v. Lake, 109 Mich. 415, 32 L. R. A. 744, 63 Am. St. Rep. 584.

5. In re Bloss' Estate, 114 Mich. 204, 72 N. W. 148.

with an intention, express or implied, of the party who has a right to control one or both, is that one is to be substituted for the other. Thus the choice that a widow has between the statutory right of dower and a testamentary devise or bequest in lieu of dower, is an illustration of the right of election. It is manifest that the right of election may be generally regarded as a unit, if there is no provision in the will to the contrary, for a person can not elect to take both of the inconsistent rights, but must elect to take one of them, neither can he elect to take a portion under each right, for the doctrine of election and waiver is applicable to such rights which are given for the sole benefit of the one who possesses the right to elect.

§244. The Statutory Right.

The statute provides that all dispositions of personal property by last will and testament shall be subject to the following limitations and restrictions:

First. If the testator shall leave surviving him a wife, the testamentary dispositions shall be subject to the elections of such wife, to take any interest that may be given her, by the testator in his last will and testament; or in lieu thereof, to take the sum or share that would have passed to her, under the statute of distributions, had the testator died intestate, until the same shall amount to five thousand dollars, and of the residue of the estate one-half the sum or share that would have passed to her, under the statute of distributons, had the testator died intestate, and in case no provision be made for her in said will, she shall be entitled to the election aforesaid.

6. C. L. '97, §9300.

Second. If by any will, any special devise or bequest is made to the wife in lieu of any particular thing or any particular interest to which such wife might be entitled, in case of intestacy, the election by the wife to take the special devise or bequest, or the other particular thing or interest, in lieu of which it is given, shall not deprive the party electing, or any other person, of the right to leave the testamentary disposition of property in all other respects unaffected and unimpaired; and to have the benefit of any other provisions therein, the same as he or she would have had, if this act had not been passed. Again, the election to take otherwise than under the will in any contingency above contemplated, shall be made in writing, and filed in the court in which proceedings for the settlement of the estate are being taken, within one year from the probate of the will; and the failure to file such election within the time above provided shall be deemed an election to take under the will. This statute cannot be so construed that the widow is permitted to make cross elections; that is, she may approve of the action of the testator in devising her the realty, and at the same time refuse the terms given by the testator as to personalty,-in other words, she is permitted to accept the terms of the will in one part, because more favorable, and refuse to be bound by the other, because against her interests. In comparing the old statute with a later one, it was said that by the old law, if a widow elected to claim her dower, she lost, usually, all claim to personalty as well as realty devised or bequeathed. She was not entitled to waive any provision of the will without waiving all, unless the will itself so provided. This statute

7. C. L. '97, §9301.

8. In re Bloss' Estate, 114 Mich. 206, 72 N W. 148.