Penn v. Guggenheimer

Citations

• 76 Va. 839
• 1882 Va. LEXIS 86

Syllabus

<p>1. Ejection and Satisfaction.—The doctrine of election rests upon the equitable principle that he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it. If by one clause of a will a legacy is given A, and by another clause an estate, of which A is the owner, is given to B, unless A surrenders to B the estate ■A cannot have the legacy.</p> <p>2. Idem—Intention.—In order to raise a case of election, the intention of the testator to give that which is not his own, must be clear and unmistakable. It is not necessary that the intention be expressly declared; it may be gathered from the whole of the instrument.</p> <p>3. Idem—Presumption.—Where testator owns only part of the thing given, the presumption is that he intended to give only that which he might properly dispose of, and nothing more; and it will always prevail, unless by demonstration plain, or necessary implication, the contrary appears.</p> <p>4. Idem—General words.—If, in making the devise, testator uses'general expressions, such as “ all my lands,” “all my estate,” no case of election arises.</p> <p>5. Idem—Sp/ecific description.—But where testator owns only part of an estate and devises the entire corpus thereof specifically, a case of election does arise. See opinion of Christian, J., in Gregory v. Gates, 30 Gratt. 83.</p> <p>6. Idem—Acceptance.—The election may be made by the legatee impliedly as well as expressly, and whether there has been an acceptance may be determined by the circumstances of the case. Acts of ownership, lapse of time, ability to restore others to the same situation as if there had been no election, are some of the indicia of acceptance.</p> <p>7. Idem.—Election once made, expressly or impliedly, is irrevocable, and binds not only the legatee, but all claiming under him.</p> <p>8. Idem—Creditors.—When election has once been made, and thereby an estate vests in a d