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ELECTION

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Originally appearing in Volume V09, Page 172 of the 1911 Encyclopedia Britannica.
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ELECTION , in See also:

English See also:law, the See also:obligation imposed upon a party by courts of See also:equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the See also:person from whom he derives one that he should not enjoy both. Thus a testator died seized of See also:property in See also:fee See also:simple and in fee tail—he had two daughters, and devised the fee simple property to one and the entailed property to the other; the first one claimed to have her See also:share of the entailed property as coparcener and also to retain the benefit she took under the will. It was held that she was put to her election whether she would take under the will and renounce her claim to the entailed property or take against the will, in which See also:case she must renounce the benefits she took under the will in so far as was necessary to compensate her See also:sister. As the essence of the See also:doctrine is See also:compensation, a person electing against a document does not lose all his rights under it, but the See also:court will See also:sequester so much only of the benefit intended for him as will compensate the persons disappointed by his election. For the same See also:reason it is necessary that there should be a See also:free and disposable fund passing by the See also:instrument from which compensation can be made in the event of election against the will. If, therefore, a See also:man having a See also:special See also:power of See also:appointment appoint the fund equally between two persons, one being an See also:object of the power and the other not an object, no question of election arises, but the appointment to the person not an object is See also:bad. Election, though generally arising in cases of See also:wills, may also arise in the case of a See also:deed. There is, however, a distinction to be observed. In the case of a will a clear intention on the See also:part of the testator that he meant to dispose of property not his own must be shown, and parol See also:evidence is not admissible as to this. In the case of a deed, however, no such intention need be shown, for if a deed confers a benefit and imposes a liability on the same person he cannot be allowed to accept the one and reject the other, but this must be distinguished from cases where two See also:separate gifts are given to a person, one beneficial and the other onerous. In such a case no question of election arises and he may take the one and reject the other, unless, indeed, there are words used which make the one conditional on the See also:acceptance of the other. Election is either See also:express, e.g. by deed, or implied; in the latter case it is often a question of considerable difficulty whether there has in fact been an election or not; each case must depend upon the particular circumstances, but quite generally it may be said that the person who has elected must have been capable of electing, aware of the existence of the doctrine of election, and have had the opportunity of satisfying himself of the relative value of the properties between which he has elected.

In the case of infants the court will sometimeselect after an inquiry as to which course is the most advantageous, or if there is no immediate urgency, will allow the See also:

matter to stand over till the See also:infant attains his See also:majority. In the cases of married See also:women and lunatics the courts will exercise the right for them. It sometimes happens that the parties have so dealt with the property that it would be inequitable to disturb it; in such cases the court will not interfere in See also:order to allow of election.

End of Article: ELECTION

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