The bill alleges that the testator meant to exclude all but his sons from his New Jersey property; and that he intended that his daughters should take no more than the legacies he had bequeathed to them.

The prayer is that the daughters may be put to their election, either to give effect to the whole will, by relinquishing their claim upon the New Jersey property, or from their legacies to compensate the sons for their loss in consequence of the daughters sharing with them the New Jersey property.

Mr. Justice Read, at Nisi Prius, dismissed the bill.

The plaintiffs appealed, and assigned the dismissal of the bill for error.1

SHARSWOOD, J. No question has been made by the parties as to the jurisdiction of a court of equity in this state to give the relief prayed for in this bill. * * *

The jurisdiction in such case is expressly recognized as concurrent in Lewis v. Lewis, 13 Pa. 79, 53 Am. Dec. 443. The decree of this court will doubtless be conclusive as to the subject-matter upon the final settlement of the account of the executors, but so would a judgment against them in a court of law, if no fraud or collusion were shown. We pass, therefore, to the main question.

It may certainly be considered as settled in England, that if a will, purporting to devise real estate, but ineffectually, because not attested according to the Statute of Frauds, gives a legacy to the heir at law, he cannot be put to his election. Hearle v. Greenbank, 3 Atk. 695; Thellusson v. Woodford, 13 Ves. 209; Breckinbridge v. Ingram, 2 Ves. Jr. 652; Sheddon v. Goodrich, 8 Id. 482. These cases have been recognized and followed in this country. Melchor v. Burger, 21 N. C. 634; Beall v. Schley, 2 Gill (Md.) 181, 41 Am. Dec. 415; Jones v. Jones, 8 Gill (Md.) 197; Kearney v. Macomb, 16 N. J. Eq. 189. Yet it is equally well established, that if the testator annexes an express condition to the bequest of the personalty, the duty of election will be enforced. Boughton v. Boughton, 2 Ves. Sr. 12; Whistle v. Webster, 2 Ves. Jr. 367; Rex v. Wauchop, 1 Bligh, 1; Beall v. Schley, 2 Gill (Md.) 181, 41 Am. Dec. 415.

That this distinction rests upon no sufficient reason has been admitted by almost every judge before whom the question has arisen. Why an express condition should prevail, and one, however clearly implied, should not, has never been and cannot be, satisfactorily explained. It is said, that a disposition absolutely void, is no disposition at all, and being incapable of effect as such, it cannot be read to ascertain the intent of the testator. But an express condition annexed to the bequest of the personalty does not render the disposition of the realty valid; it would be a repeal of the Statute of Frauds so to hold. How then can it operate any more than an implied condition to open

4 The statement of facts is abridged and part of the opinion is omitted.

the eyes of the court so as to enable them to read those parts of the will which relate to the realty, and without a knowledge of what they are, how can the condition be enforced? "As to the question of the election," said Lord Kenyon, while Master of the Rolls, "the cases which have been cited are certainly great authorities, but I must confess I should have great difficulty in making the same distinctions, if they had come before me. They have said you shall not look into a will unattested so as to raise the condition which would be implied from the devise if it had appeared; but if you give a legacy on condition that the legatee shall give the lands, then he must elect; however, I am bound by the force of authorities to take no notice whatever of the unattested will, as far as relates to the freehold estate." Carey v. Askew, 1 Cox, 241. "I do not understand," said Sir William Grant, "why a will, though not executed so as to pass real estate, should not be read for the purpose of discovering in it an implied condition, concerning real estate, annexed to a gift of personal property, as it is admitted it must be read, when such condition is expressly annexed to such gift. For if by a sound construction such condition is rightly inferred from the whole instrument, the effect seems to be the same as if it was expressed in words." Brodie v. Barry, 2 Ves. & Beames, 127. So Lord Eldon declared, that "the distinctions upon this head of the law appear to be rather unsubstantial," and that "there are, undoubtedly, these distinctions, and a judge, having to deal with them, finds a difficulty in stating to his own mind satisfactory principles on which they may be grounded." Rex v. Wauchop, 1 Bligh, 1. And in another place: "The reason of that distinction, if it was res integra, is questionable." "With Lord Kenyon, I think the distinction such as the mind cannot well fasten upon." Sheddon v. Goodrich, 8 Ves. Jr. 482. Mr. Justice Kennedy has expressed the same opinion: "When a condition is necessarily implied by a construction in regard to which there can be but one opinion, there can be no good reason why the result or decision of the court should not be the same as in the case of an express condition, and the donee bound to make an election in the one case as well as the other." City of Philadelphia v. Davis, 1 Whart. 510.

There is another class of cases in England wholly irreconcilable with this shadowy distinction; for the heir at law of a copyhold was formerly put to his election, though there had been no surrender to the use of the will. This was previous to 55 Geo. III, c. 192, 1 White & T. Lead. Cas. Eq. 239, note; yet, as Sir William Grant has remarked, "a will, however executed, was as inoperative for the conveyance of copyhold as a will defectively executed is for the conveyance of freehold estates." Brodie v. Barry, 2 Ves. & Beames, 130.

The mind instinctively shrinks from the task of frustrating the clear intention of a testator, aiming too to make all his children equal, upon

authorities establishing a distinction without any difference. The precise point can never arise in this state, for happily our Statute of Wills of April 8, 1833, Pamph. L. 249, wisely provides that the forms and solemnities of execution and proof shall be the same in all wills, whether of realty or personalty. The case before us is of a will duly executed according to the laws of Pennsylvania, devising lands in New Jersey, where, however, it is invalid as to the realty by not having two subscribing witnesses. A court of New Jersey might hold themselves on these authorities bound to shut their eyes on the devise of the realty, and consider it as though it were not written, and so they have held Kearney v. Macomb, 16 N. J. Eq. 189. They might feel themselves compelled to say, with Lord Alvanley, however absurdly it sounds: "I cannot read the will without the word 'real' in it, but I can say, for the statute enables me, and I am bound to say, that if a man, by a will unattested, gives both real and personal estate, he never meant to give the real estate." Buckeridge v. Ingram, 2 Ves. Jr. 652.

But a statute of New Jersey has no such moral power over the conscience of a court of Pennsylvania to prevent it from reading the whole will upon the construction of a bequest of personalty within its rightful jurisdiction. If a question could arise directly upon the title of the heirs at law to the New Jersey land, doubtless the court of any other state, upon the well settled principles of the comity of nations, must decide it according to the lex rei sitæ. We are dealing only with the bequests of personalty, and the simple question is, whether the testator intended to annex to them a condition. If, without making any disposition whatever of the New Jersey estates, dying intestate as to them, he had annexed an express proviso to the legacies to his daughters that they should release to their brothers all their right and title as heirs at law to these lands, it is of course indubitable that such a condition would have been effectual. We are precluded by no statute, to which we owe obedience, from reading the whole will, and, if we see plainly that such was the intention of the testator, from carrying it into effect.

Some cases have arisen in England upon wills disposing of Englisn and Scotch estates, in which the judgments have not been harmonious, nor can any general principle be extracted from them bearing upon this question. In Brodie v. Barry, 2 Ves. & Beames, 127, an heir at law of heritable property in Scotland, being also a legatee under a will not conforming to the law in Scotland as to heritable property, was put to his election. By that law a previous conveyance by deed was necessary, according to the proper feudal forms, upon which the uses declared by the will might operate. As by the law of Scotland the heir at law in such a case was put to his approbate or reprobate (the Scotch law term for election), and it was very similar to a will of copyhold, Sir William Grant considering the law of both countries to be the same, felt himself relieved from the necessity of determining by which

law the decision should be made. Dundas v. Dundas, 2 Dow & Clark, 349, was a case in the House of Lords from Scotland. The will was formal according to the Scotch laws, but was invalid, as to real estate in England under the Statute of Frauds. Yet the decision of the Court of Session putting the English heir at law to his approbate or reprobate was affirmed.

This case is certainly in point, in favor of the position taken in this opinion. It is true, that in the judgment pronounced by Lord Chancellor Brougham, then but recently raised to the wool-sack, it is not put on that ground. He assumes, that in England, while a court of law would be precluded by the statute from looking at the disposition made of the realty, it was competent for a court of equity to do so, and that the Court of Session in Scotland had only done what a chancellor in England had a right to do; a distinction, it must be allowed, not adverted to in any of the previous cases, which were all in courts of equity. In McCall v. McCall, Drury, 283, Lord Chancellor Sugden, held that an heir at law of heritable property in Scotland, who was also the devisee of real estate in Ireland, under a will duly executed as to the Irish, but ineffectual as to the Scotch estate, was bound to make his election. In the later case of Maxwell v. Maxwell, 13 Eng. L. & Eq. 443, which arose in England, the heir at law in Scotland was not put to his election but distinctly on the ground, that the will in the alleged disposition of the Scotch estate, had used only general words. "If the will had mentioned Scotland in terms," said Sir Knight Bruce, Lord Justice, "or the testator had not any real estate except real estate in Scotland, that might have been a ground for putting the heir to his election. The matter, however, standing as it does, we are bound to hold that the will does not exhibit an intention to give or affect any property which it is not adapted to pass," and Lord Cranworth concurred in this view.

In this state of the authorities, we are clear in holding that we are not precluded by force of the New Jersey Statute of Frauds, from reading the whole will of the testator in order to ascertain his intention in reference to the bequest of personalty now in question. We are equally clear that it is a case of election. The intention of the testator does not rest merely upon the implication arising from his careful division of his property, among his children, in different classes, but he has indicated it in words by the clause: "I direct and enjoin on my heirs, that no exception be taken to this will, or any part thereof, on any legal or technical account." It is true, that for want of a bequest over this provision would be regarded as in terrorem only, and would not induce a forfeiture. Chew's Appeal, 45 Pa. 228. But, as has been often said, the equitable doctrine of election is grounded upon the ascertained intention of the testator, and we can resort to every part of the will to arrive at it. "The intention of the donor or testator ought doubtless to be the polar star in such cases," says Mr.

Justice Kennedy, "and wherever it appears from the instrument itself conferring the benefit, with a certainty that will admit of no doubt, either by express declaration, or words that are susceptible of no other meaning, that it was the intention of the donor or testator that the object of his bounty should not participate in it without giving his assent to everything contained in the instrument, the donees ought not to be permitted to claim the gift unless they will abide by the intention and wishes of its author." City of Philadelphia v. Davis, 1 Whart. 510. This, however, is not the only mode in which the equity of the case can be reached. The doctrine of equitable election rests upon the principle of compensation, and not of forfeiture, which applies only to the nonperformance of an express condition. 2 Madd. Ch. 49. Besides, no decree of this court could authorize the guardians of the minors to execute releases of their right and title to the New Jersey lands, which would be effectual in that state. The alternative decree prayed for in the bill is that which is most appropriate to the case.

Decree reversed, and now it is ordered, adjudged and decreed, that the executors of the last will and testament of Frederick Augustus Van Dyke, deceased, shall pay to the defendants, Mary A. Van Dyke, Margaret P. Fernald, and Frederick A. Pease, Elizabeth Pease and Augusta Pease, such sum less than the amount of their respective legacies, as will compensate the said plaintiffs and the surviving sons of the testator for the value of the shares of the said legatees in the said real estate in New Jersey, and that it be referred to James Parsons, Esq., as master to settle and report such respective amounts.

III. Election Between Dower and Testamentary Gift

REED v. DICKERMAN.

(Supreme Judicial Court of Massachusetts, 1831. 12 Pick. 146.) Writ of dower. The following facts were agreed to by the parties. Elijah Reed, the late husband of the demandant, died seised in fee of the land described in the writ. On August 8, 1816, he made his last will, containing the following provisions: "I give and bequeath to my beloved wife, Lucy Reed, and Alice Reed, my daughter, onehalf of my dwelling house where I now live, the southerly part of said house, and the north buttery in said house, during my wife's natural life. Also to my beloved wife I give and bequeath one-half of my indoor movables. I also give and bequeath to my beloved wife one

For discussion of principles, see Eaton on Equity (2d Ed.) § 71.