
    
      J. W. Thompson v. H. H. Thompson.
    Where the testator, after the date of the codicil,.and long after the dale of the will, conveyed land to one who was also a devisee under the will, — the Court held that the testator thereby gave him the land in addition to what was given by the will, and that the doctrine of election did not apply to the case.
    A case of election arises “ when the testator gives what does not belong to him, but does belong to some other person, and gives that person some estate of his own, by virtue of which gift a condition is implied, either that he shall part with his own estate, or shall not taire the bounty.” — Broome v. Monk, 10 Ves. 609.
    
      Before Withebs, J. at York, Fall Term, 1847.
    This action was brought to recover a valuable tract of land, the title to which was admitted to have been perfect in the late Richard Thompson, of Spartanburg. The plaintiff claimed the premises by virtue of a devise in the will of Richard Thompson — and the defendant claimed it by virtue of a conveyance from him, dated the 31st August, 1844. The plaintiff and defendant were sons of the said Richard Thompson.
    His will was dated June 12,1838 ; the 6th clause of which devised the land in question to the plaintiff, and the will was re-published by a codicil; on the 8th July, 1842, and again by another codicil on the 15th Jan. 1844. He died in October of the last.mentioned year.
    It will be observed that the conveyance to the defendant (which was in due form according to the form prescribed in the statute,) was dated more than six years after the execution of the will, and more than seven months after the execution of the last codicil. The deed was attacked by the plaintiff. on the grounds of imbecility of intellect on the part of Richard Thompson, when he signed it, and undue influence by the defendant over him. A very large mass of testimony was adduced upon these points, which was resolved in favor of the defendant by the verdict of the jury.
    It ought to be stated (in reference to one observation in the grounds of appeal as to the commencement of the real interest of the defendant in the premises in question,) that the defendant executed to Richard Thompson a lease of the land for the term of Richard Thompson’s life, bearing even date with the conveyance of the latter.
    The defendant had taken possession and used other legacies and devises under the will of his father, and held the land in question under the deed before mentioned.
    The question raised in the grounds of appeal, and presented at the trial, is, had the defendant concluded himself as to the land sued for, by having accepted the legacies and devises in his behalf, upon the doctrine of election ? The presiding Judge held that the doctrine of election did not apply to the case at all — and if it did, the defendant had elected to claim and take the land, in his judgment, by his plea and defence — that he had decided to take the land at the instant of the testator’s death, and before the legacies and devises could have been assented to under the will. And therefore if the doctrine applied at all, and the plaintiff had any confidence in his power to enforce it, the court of equity was open to him to strip the defendant of his legacies and devises.
    The jury were instructed to pass only upon the questions ©f imbecility or competency of mind of Richard Thompson, and whether he had the requisite free agency in executing the deed. They rendered a verdict for defendant.
    The plaintiff appealed, on the following grounds, viz:
    1st. Because his Honor charged the jury that the doctrine of election, as contended for on the part of the plaintiff, did not apply to this case, and could not be applicable in a court of law, but applied to the court of equity exclusively.
    2d. Because his Honor should have submitted the question to the jury, whether the defendant had not accepted the land devised to him under the will of his father.
    3d. Because the defendant had clearly made his election, and had accepted legacies and devises under the will of his father, and was therefore barred — the more especially as the defendant really had no interest under the deed for the land in dispute, until after his father’s death ; as he was not entitled to it under the arrangement with his father, when he accepted the deed, until after the death of Richard Thompson.
    A. W. ThomsoN, for the motion.
    The doctrine of election applies in this case. There is no difference between the" Courts of Law and Equity in principle. The Court of Law can determine whether an election is made^ or not. — 4 Kent’s Com. 58. As soon as a party makes an election, he is bound by it, and the Court of Law will hold him to it. — Hill v. Hill, 4 McC. 277; 3 Bac. Abr. 307, — title, Election; Collins v. Janey, 3 Leigh’s Rep. 389 ; 2 Shoales & Lefroy, 449 and 50. Election applies to every species of instrument, deed as well as will. — Field v. Eaton, 1 Dev. Eq. Rep. 283; 2 Story’s Eq. 468, sec. 1080; Griffith v. Harrison, 4 T. Rep. 743. Whoever takes under a will, must support the titles of all who take likewise, unless he renounce his claim. It is as the rule that a tenant shall not dispute the title of his land
      lord. — Berry v. Hoke, 1 Rich. Rep. 76; Gray v. Brown, 1 Rich. Rep. 351; State v. Stein, 1 Rich. Rep. 181; Avant v. Robertson, 2 McMul. 215. A widow may elect to take her third instead of her dower. Election is a matter of fact, and the fact being proved, the Law enforces the election.
    Dawkins, contra.
    
    Neither the case cited from Devereaux, nor that from Leigh, is applicable to the present case. We concede that the Court of Law can decide upon an election, but deny that any election has been made in this case.
   Frost, J.

delivered the opinion of the Court.

The result of the motion depends on the correctness of the decision below, that the doctrine of election does not apply to the case.

Lord Eldon, in Broome v. Monk, 10 Ves. 609, states a case of election to arise when the testator gives what does not belong to him, but does belong to some other person, and gives that person some estate of his own, by virtue of which gift a condition is implied, either that he shall part with his own estate or shall not fake the bounty.” The principle of election is, that a party shall not affirm the will, in one part, by taking what is given to him, and at the same time reject it in that part which gives his own estate to another. A gratuity can be claimed only on the condition the donor may see fit to annex to it. When the testator gives his own estate to one person, and the estate >of that person to another, the intention is manifest that the second devisee shall have the estate of the first, and that intention creates a condition that the first devisee shall not take the estate given to him, unless he relinquish his own estate to the person to whom the testator has devised it. If, in this case, the testator had first conveyed the plantation to the defendant, and afterwards devised it to the plaintiff, the defendant could not take by the conveyance, without defeating the devise to the plaintiff. To take his own estate by the deed, and in addition claim what was given by the will, would be against the intention of the testator: and the defendant would be put to an election, either to take under the deed and relinquish his claim under the will, or to take under the will and relinquish to the devi-see the plantation claimed by the deed. But the conveyance to the defendant was made after the date of the last codicil, and long after the date of the will. The testator thereby gave him the plantation, in addition to what was given by the will. By the conveyance to the defendant the devise to the plaintiff was revoked, with the same effect as if the plantation had been devised to the defendant by a codicil. It was the intention of the testator that the defendant should take both under the deed and under the will; and there is no subject for election.

The motion is refused.

Richardson, J. O’Neall, J. Evans, J. Wardlaw, J. and Withers, J. concurred.

Motion dismissed.  