#### EDMUND McQUEEN AND JAMES H. McQUEEN, EXECUTORS, *against*JAMES S. McQUEEN AND OTHERS.

Where a father in his will alludes to.an expectancy that the children born to him of one marriage had of a legacy from their maternal grandfather, and provides that should these children get property from this source, it was to be divided in certain proportions between all his children, (including those of another marriage) and postpones the division of his own property for two years, and within that time property does come to these children by the death of their grand father, *held*that this is a case coming within the principles that constitute the doctrine of *election.*

Where the persons put to an *election*by a bequest, are infants, the Court will order a reference to the master to enquire concerning the relative values of the two interests, and will direct the election to b.e made of that, which shall appear the more advantageous for them.

Where a legacy to an infant is charged with the payment of a sum of money, the Court of Equity will order a reference to the master, to ascertain whether it will be to the infant’s advantage to accept of the legacy with the burthen, and will direct according to such ascertainment.

Cause transmitted from the Court of Equity of Richmond County, at the Spring Term, 1854.

The executors of Archibald McQueen filed their bill praying for advice and directions as to their duty in distributing *17the estate of the testator under the following provisions in the “will:—

“ *Item*1. It is my desire that my daughters and sons shall receive of my estate in the following proportion: my daughters to have three portions, and my sons two portions of all the estate not hereafter excepted.

*“Item*2. Inasmuch as I expect that my children, Archibald Alexander, John Knox, Almina Diana, Julia Catharine and William McLeod, may receive property from their grandfather, William McLeod, it is my wish and desire, and I enjoin it as a last request, that whatever *such*property may be, it shall be estimated in the proportion of *three*and *two,*specified in the above article, so as to carry out this *my division.*

“ *Item 3.*I authorise my executors, should they at any time deem it advisable, to sell my property at Moral College, and also my plantation at Shoe Ileel, known as the McBryd© place, all of which I devise to my said executors in trust for that purpose, and I direct that the proceeds be divided in the proportion specified in article first.

“ *Item*4th. (Not necessary to be set out.)

“ *Item*5th. It is my wish and desire, that at the end of two years from the probate of my will, my executors shall apply to the Court of Pleas and Quarter Sessions for the County of Robeson and have a committee appointed bjr the Court to make *a dimisión*of my estate between such of my children as shad then be of' age and those who are minors, observing the proportions above specified, giving to the adults their share in severalty, and leaving to the minors their estate as tenants in common,'to be managed by a guardian, who I desire shall be appointed for that purpose as soon as practicable after the division is made. * * * * * * ■ ***. Dated 28th of May 1851. T'> this will is attached the following *codiail:*

“ In addition to my will above, it is my desire to add the following items: It is my desire that whatever moneys come into the hands of my executors from the profits of the farm, moneys collected or negro hire, be applied to the education of my younger children ; and it is my earnest desire that their *18education, be not neglected. I desire that my Kingsboro’ farm, adjoining the lands of Dr. John Malloy, be retained as a common home for my dear children, so long as they may think proper to remain on it: and should they leave it, that thenit shall be the property of my youngest son, "William McLeod, should he survive ; but that he pay to his brothers and sisters one half the estimated value thereof, in the proportion mentioned in the first article of my above will; except that I desire my son, Archibald Alexander, to receive one hundred dollars above either of the others.” Dated 30th May 1851.

Before the time arrived for the division of the testators estate, under his will, William McLeod, mentioned in the foregoing as the grandfather of some of these children, died, having made his will, in which, among other things, he bequeaths as follow's-

- “ Unto my grand sons, Archibald Alexander and John Knox McQueen, I give and bequeath my negro woman Lydia, and her four children, Martha, Sandy, Amanda and Leston, together with all their increase. I also give them my negro boy John. Unto my grand children, Almina Diana, Julia Cath-arine and William McLeod, I give my negro woman Sarah and her child Henry, wdth their future increase. Also, my negro woman Eliza, and her daughter Mary.”

The testator, Archibald McQueen, was married three times. James S. and Flora Bunting are the issue of his first marriage, hnd are of full age. His second and third wives wrnre the.daughters of William McLeod above named, and Archibald Alexander and John Knox, are the issue of one of these marriages, and Almina Diana, Julia Catharine and William McLeod McQueen, are the issue of the other, and are all minors.

The questions propounded by the pleadings are sufficiently apparent from the opinion of the Court.

The cause was heal’d upon the bill and answers and the two exhi its, (the wills) filed.

*Kelly*for the plaintiffs.

*Ba/nks*for the defendant.

Battle, J.

The difficulties suggested by the pleadings as *19to the construction of the will and codicil of the plaintiffs’ testator, do not arise so much from ascertaining what his intention is, as from determining whether it be in accordance with law. He declares in terms, which cannot he misunderstood, that all his property with certain specified exceptions, shall be divided between all his children, but in certain proportions between his sons and daughters, and that such division shall be made at a certain time. He then, after expressing the expectation that the grandfather of his children by his last two wives, (who were sisters) would give them some property, declares in unequivocal language that such property is to be taken into the account and divided among all the children in the prop ortion above specified. The only question upon this part of the will is, whether the equitable doctrine of election applies ? and we do not hesitate to say that it does. To originate this doctrine, two things are said to be essential: First, that the testator shall give property of his own; and secondly, that he shall profess to give also the property of his legatee or devisee. *Adams Eq.*93; *Wilson*v. *Arny.*1 *Dev.*and *Bat. Eq. Rep.*376. The present case would be directly within the rule, if 'William McLeod had died in the life time of the plaintiffs’ testator, so that the property which he bequeathed to his grand children had become theirs in the life time of their father. Can it make any difference in principle that the property w-as not acquired by the five younger children of the testator in his life time, though it did become theirs prior to the time fixed upon by their father for the division of his estate? The counsel for the younger children contend that it does make a difference, and for it cites the case of *Owen*v. *Owen,*Bus. Eq. Rep. 121. The argument is, that the testator cannot assume to dispose prospectively of property which may or may not become vested in his legatees or devisees, so as to pat them to an election. But we think that the principle upon wli ich *i*lie doctrine of election is founded, will apply to that case as well as any other. It is this, “that one who takes a bounty Tinder an instrument, is under an obligation to give effect to the whole instrument, or rather that tho donor intended that he should not enjoy that bounty if lie disappointed that *20bestowed on another in the same instrument.” Th¿ case of *Owen*v. Owen, instead of militating against, rather confirms this view. The decision was, that as a period for the division-of his property between his wife and children was fixed by the testator, the Court could not postpone that division for an indefinite period to await the uncertainty, whether one of the children should get any property from her grand father, who was- then living. The Court abstained indeed from expressing any positive opinion upon the effect which the daughters getting property from her grandfather might have produced, but from the manner in which they expressed themselves, it may at least be inferred, that they thought it would have been taken into account, had she received it before such division was required to be made.

That the parties who are required to elect in this case are infants, will not prevent an election, from being decreed. *Robertson*v. *Stephens,*1 Ire. Eq. 247. The Court will in sucb cases refer it to the master to enquire- and ascertain the value of both interests, and then direct what election shall be made. *Adams Eq.*96. *Gretton*v. *Howard,*1 Swan’s Rep. 409.

The second and only remaining question arises upon the codicil. There can he no doubt of the power of the testator to-provide for the disposition of his Ring boro-’ farm in- the manner specified. It is admitted by all the parties, that it has been abandoned, and will never be occupied again as a common home. "Were theparties all adults, there eouldbeno question but that "William McLeod McQueen would be entitled to-falce tire farm upon paying one half of its estimated value to-bis brothers and sisters in the. proportion mentioned. But as minors cannot make any admission to their prejudice, a reference must he made to ascertain the facts, and enquire whether it would be to the advantage of the minors to occupy the farm as a common home *\*A decretal order inay he drawn in accordance with this opinion, and the cause will be retained for further directions upon the coming in of the report.

Pee OuRiAM. Decree accordingly.