majority">Archer, J.,

delivered the opinion of this court.

The controversy in the present case, arises under the will of Caspar Mantz ; and grows out of the following clause in the will:

“ And furthermore, I do hereby make and constitute my sister Theresa, my residuary legatee and devisee; and I do hereby give and bequeath to her all my money, choses in action, and all the rest, and residue, and remainder of my property, real, personal, and mixed, (not hitherto devised or bequeathed,) of which I am now possessed, or of which I may he possessed, at the time of m.y death; to her, my said sister Theresa, her heirs and assigns forever.”

Which said will was executed on the 9th day of August 1832.

On the 18th March 1835, he purchased of a certain Joseph Kenega, a valuable farm, near Frederick town, for which he duly obtained a conveyance; and died on the 29th October 1839.

*198It appears by the facts in the case, that the testator left three sisters, Mrs. Harding, Mrs. Barr, and Mrs. McEIfresh; and that Mrs. McEIfresh is his residuary legatee and devisee.

Among other things, the testator devised to John McEIfresh, in fee, the husband of the residuary legatee and devisee, certain real estate; and fifteen thousand dollars in cash, in trust, for the use of Mrs. Harding, for life, and after her death, the whole, of the said property to go to Mrs Harding’s children ; as in the will is particularly specified.

A devise of certain real estate, and thirty-two thousand dollars, besides bank, and turnpike stocks, particularly specified in the will, was made to the same trustee for the benefit of Mrs. Barr, for life, and after her death, for the benefit of her children ; as set forth particularly in the will.

He also devised sundry lands to Mrs. McEIfresh, her heirs, and assigns; and in the conclusion of his will, constituted her residuary legatee and devisee, in the terms which have been before set forth.

The question submitted to us under the will, above adverted to, as appears by the agreement, and statement in the record, is, whether Mrs. Barr, by her trustee, can claim the property devised in trust to her, by the will of Caspar Mantz; and also, as heir at law, the one-third of the value of the Kenega farm, purchased by Caspar Mantz after the execution of his will ?

The will not having been republished, it is conceded, that the after purchased lands never passed under it; no matter how clear may be the intention of the testator, in the clause under consideration, to pass them.

The answer to the question will be found in the solution of the enquiry, whether the case is one for election, according to the principles of law applicable to such doctrine? The inapplicability of the doctrine of equitable election, to this case, has been urged upon several grounds :

1st. On the intention of the testator, as deduced from the residuary clause.

2nd. Its inapplicability to an heir at law.

*1993rd. Its supposed inapplicability to a clause in a will, which, although it may manifest the intention of the testator, is in itself inoperative to pass any estate by the rules of law. And,

4th. On the ground that the case before us, if the intention were even clear, and if applicable to an heir at law, is not of such a character as comes within the most approved definition of the doctrine.

1. No person will be compelled to make an election, unless the intention of the testator be sufficiently made out. There never can be a case of implied election, but upon a presumed intention of the testator. 3 Bro. Ch. 191, 1 Ves. jr. 257, 557. The degree of intention necessary to raising a case of election, must plainly appear upon the face of the will. On the other hand, it is said, the court is not to refuse attention, to what amounts to a moral certainty of the testator’s intention; where that is to be gathered, either from the state of the property, or the purview of the will. 4 Bro. Ch. 24.

What was then the intention of the testator in the residuary clause ? It is supposed that the residuary clause maybe construed, so as only to shew an intent to pass, that which should constitute a residue of his then existing property, at the time of his death; and not properly, which, after the execution of his will, he might acquire. Such a construction would make the testator guilty of the folly of supposing, that without such clause, either the residue at his death would not pass, by the term, “of which I am now possessed,” or, that any portion of his property, constituting a part of the residuary, if disposed of by him in his life time, would pass under the will: a supposition we should not be justified in making, when the words, themselves, have so plain an import. His design is declared in express terms, to make her his residuary devisee ; and of what, he explicitly announces, by devising the remainder of the property, of which he was then possessed, or of which he might be possessed at the time of his death; the term “which,” referring in the mind of the testator to the word “property” and not to the word “remainder.” It then stands as a devise of all the estate of which he died possessed, or of which he might be possessed at the time of his death,

*200We agree with the Vice Chancellor, in 4 Sim., 520, that such words show in a most marked manner, that he intended to pass, not only the estates he had at the date of the will, but all that he should be in possession of, at the time of his decease. It cannot be denied, that the words would pass all the personal estate, that the testator was possessed of at his death; and if it is clear as to future personal estate, bow can it be said he had not the same intention as to real estate, when they are both disposed of in the same sentence ? Can any one say, that he had one intention as to personal estate, and a different intention as to the real estate, when he uses “the same words as to both.” And he overrules a contrary construction put upon words of the like import,, in Back if Kett, Jacobs Rep., 540.

2. That this doctrine is applicable to an heir at law, is clear from the authorities. 2 Vern. 586. 2 Ves. Jr. 696. 2 Scho. & Lef. 449. 2 Story Eq. note, 338. 2 Ves. Jr. 544, 559. 2 Ves. & Bea. 187, are all cases where the heir at law was put to his. election; and in 10 Ves, 593., the point was admitted, that the doctrine reached the heir. The same doctrine was applied in 2 Eq. Ca. 2, referred to in 2 Rop. Leg. 405; and in the case of 2 Ves. & Bea. 187, it was applied in a case, in which the devise to the heir was inoperative.

In the case of an express condition, there never could have been a doubt, because the testator may annex what condition he pleases to his estate. Why should not election occur in the case of an implied condition, if the intention be plain and clear, as against the heir ? It is said, that the devise to the heir is read as if it were to him absolutely, if he confirm the will; if not, then in trust for the disappointed devisees as to so much of the estate given to him, as shall be equal in value to the estates intended for them. It is only carrying out a plain intent of the testator, and giving to the residuary devisee, that which the testator intended, and forbidding the heir from taking property not designed for him. From the earliest case on the subject, the rule is, that a man shall not take a *201benefit under a will, and at the same time defeat the provisions of the instrument. If he claims an interest under an instrument, he must give full effect to it, as far as he is able ío do so. lie cannot take what is devised to him, and, at the same time, what is devised to another; although, but for the will, it would be his : hence he is driven to his election to say, which he will take.

3. But we have seen that the will is inoperative to pass the lands acquired after its execution. Will this fact prevent the application of the doctrine of election ? The English cases since the revolution, are, we think, decisive of this subject. 13 Ves. 219. 4 Simons, 520. 4 Con. Ch. Rep. 412. The first of these cases was affirmed in the House of Lords, and is considered, notwithstanding the opinion of Sir T. Plumer, in Back & Kett, Jacobs 534, as a case of great authority ; and is now the settled law of England. We could add nothing to the convincing reasons by which these cases are supported, by the judges who decided them. There are cases of void wills, such as the will by a feme covert, or an infant, which certainly, by established cases, will not demand an election ; but these have been rightly placed on a ground, which does not affect the present question. So too, a will not executed and attested according to the statute, creates no case of election from implication. They are considered as no wills ; they cannot he read as evidence ; and there is nothing, therefore, to indicate intention. But in the case before us, the will is properly in evidence; and the intention is clearly indicated. The cases above referred to may be the first in which the law of election was applied to a will, ineffective to pass after acquired lands; but no case from the English books has been cited against such application, and we consider them as the strongest evidence of the pre-existing law ? We have examined an opposing case, cited from 1 Whar. Pen. Rip. 509, but cannot agree with it, in confining the rule of election to the operative parts of the will, from the fear of being led into error, by endeavoring to give effect to an intention imputed to the donor. It would he only in such cases where the inten*202tion was plain, that the rule would or ought to be extended, and when this is clearly ascertained, it would be unbecoming a court of conscience to allow the heir to take the devise to himself, and also as heir, what was manifestly intended for another.

4. The modern English cases do not, we apprehend, extend or enlarge the principle of election. That principle, as applicable to this case, we take to be this ; that no one shall be permitted to take under an instrument, and defeat its provisions ; or, in the language of Lord ErsJcine, a person shall not claim an interest under an instrument, without giving full effect to that instrument as far as he can. This is not a new doctrine; it will be found to have been announced as long since as the case of Noys & Mordaunt, 2 Ves. 581. Lord Redesdale, in 2 Scho. Lef. 449, 451, says the general rule is, that a person cannot accept and reject the same instrument; and he declares it to be the foundation of the law of election, upon which courts of equity, particularly, have grounded a variety of decisions in cases, both of deeds and wills.

The complainants allege in their bill, that after the death of the testator, Mrs. Barr was put in possession of the lands devised ; that she had ever since been in the enjoyment of the rents and profits; and had received the interest on the bank stock devised to her; and that her trustee had received in pursuance of the will, the sum of $32,000 for her use, and had invested the same; that she had made efforts to procure the payment of the interest from the said trustee, on the money bequeathed to her. S

It thus appears, that her trustee and herself, are in possession of all the estate devised to her; and she is claiming, as heir at law, the proceeds of the Kenega farm, purchased by the testator after the date of the will. By the agreement of the parties, it is conceded, that the court may make a decree in accordance with the doctrine of election, and to have the same effect as if a cross bill had been filed, to compel Mrs. Barr and her trustee to make their election; provided, the court should be of opinion, that Mrs. Barr could not claim the devises- and be*203quests made in her behalf; and also claim, as heir at law, her proportion of the lands purchased after the execution of the will; and that this is a case in which Mrs. Barr should be compelled to make her election.

We have seen, that the case before us is a proper case for election ; and we perceive nothing in the character of the trusts, which should forbid its application ; or how any injustice could be done to the children oí Mrs. Barr, who take, after her death, by the terms of the trust. If Mrs. Barr elected to take the property devised, then all her right and title in the property purchased after the date of the wrill, would be directed to be conveyed to the residuary devisee. If, on the other hand, she elected to take as heir the after purchased land, her life estate in the lands devised and in the property bequeathed, would be gone, and would pass to the residuary devisee; such an election, however, would not affect the persons in remainder, who would take their estates in the property devised ; just as they would have taken them, if there had been no case of election under the will.

We shall, therefore, sign a decree, that Mrs. Barr and her trustee shall, within sixty days after service of a copy of the decree, make her election; either to take under the will, or to take her proportion of the Kenega farm, purchased by the testator after the date of the will; and if she should fail to make her election within that time, that then she shall convey her part of the said Kenega farm, which descended to her on the death of the testator, to Theresa McElfresh, in fee simple ; and the decree shall provide, in case Mrs. Barr should elect to take the land descended to her, instead of the devises and bequests to her by the will, that then she shall account for the sums by her received under the will; and that, thereafter, the said trustee shall hold the property devised and bequeathed in trust for Mrs. Barr, in trust during the life of Mrs. Barr for Mrs. Theresa McElfresh. And that the principles of this decree may be carried into effect, the decree of Frederick county court will be reversed, and the cause will be remanded to Frederick county court.

DECREE REVERSED AND CAUSE REMANDED.

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