¶1The complainants claim that the will of William Darling creates a case of election against the defendant.
¶2*300To create a ease of election, there must be a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other. The party who is to take has a choice, but he can not enjoy the benefits of both. The doctrine of election, *says Justice Story, is borrowed from the civil law, and by if a testator may bequeath, not only his own property and that of his heir, but also the property of' other persons; so that the heir may be obliged to purchase and deliver it, or, if he can not purchase it> to give the legatee its value. To give effect to a legacy in such case, it is necessary the testator should know the property bequeathed by him was not his own; and the devisee, whose property has been thus disposed of, can hold, under the will, only by giving up his own, by which alone the will can have effect. 2 Story’s Eq, 338.
¶3Is this, then, a ease of election ? This must be determined from the whole provisions of the will. The testator when he executed his will was a tenant in common, only with the defendant. The southwest quarter of section seven, etc., was patented to both. The testator, therefore, it is true, owned but a moiety, and in the devise in question he gives the southwest quarter of section seven, etc., to his grandson, Jeremiah Beatty. The language, it is said, is plain, clear, and operative, and includes the whole tract.
¶4The case does not appear to us to be so clear “.that he who runs may read;” but nevertheless, when we consider the almost perfect equality with which the testator has distributed his property among his children and grandchildren; that when he has given to one, he has likewise given to others, “share and share alike,” a majority of the court arrive at the conclusion that by the devise of the whole quarter to Jei’cmiah Beatty, the testator only designed to convey his own interest. This construction places the devisee on an equality with the other grandson, to whom the half of another quarter in the same section is given, and carries out the general design of the testator, arising on the face of the will, of placing his devisees on a perfect equality in the disposition of his property; sons, daughters, grandsons, and granddaughters, with few exceptions, “ share and share alike.”
¶5We think no case of election is created, and the bill must be dismissed. Bill dismissed.