#### THOMAS ROBBINS *and wife against*SAMUEL WINDLY, *Ex’r., and others.*

Where a testator, by his will, gave a slave to A, which, after the date of the will, he gave by deed to B, having by the same will given legacies of greater value than the slave to B, there is no construction authorised by the Act of 1844, (providing that a will shall speak and take effect as if made immediately before the death of the testator; Bev. Code, ch. 88, sec. 3), that can require B to elect for the benefit of A, between his legacies under the will, and the slave conveyed by the deed.

The act of 1844, ch. 88, sec. 3, relates to the *subject matter*of the disposition only, and does not, in any manner, interfere with the construction in regard to the *objects*of the gift.

This was a bill to recover legacies under the will of John Windly, transmitted from the Court of Equity of Beaufort County.

The only question made in the pleadings was in relation to a slave, Jesse. By his will, which was made in 1854, the testator gave this slave to the wife of the plaintiff Thomas Robbins. Subsequently, to wit, on 14th of June, 1855, he gave the same slave to George L. Windly by deed reciting a consideration of one dollar. By the said will, the testator gave to George L. Windly two plantations and four slaves, and other goods of much greater value than the slave Jesse. The testator died in 1856. Besides a prayer that the executor account, there was a further prayer that George L. Windly should be compelled to elect between the legacies given him by the will, and the gift of the boy Jesse, and that whichever interest he abandoned, should go to the plaintiffs, and that the executor, in paying over the legacies, might be so directed by this Court.

*287The answer of G. L. Windly admits the facts set forth in the bill, with this explanation : In the deed conveying the slave to the defendant George L., there is a condition reciting the bequest of Jesse to his daughter Susannah, in the will in question, and further reciting that there existed unsettled accounts between George L. Windly and Thomas Eobbins, which were’ barred by the statute of limitations; and then these terms are used in the deed : “Now if the said Thomas Eobbins shall well and truly and voluntarily come into afair and full settlement before my death, with the said George L. Windly, according to the accounts kept by them, then these jwesents to be null and void, otherwise to remain in full force and effect.” The defendant avers that the said Eobbins was justly due him, the said George L. a balance on these unsettled accounts; that he had refused to settle them on fair terms, until the defendant’s claims were barred by the statute of limitations, and that he did not come to a fair and full settlement, according to the accounts kept by them, before the death of the testator. So that according to the proper construction of the said will, taken in connection with the deed and the condition thereof, and the failure of the plaintiff to perform the said condition, the defendant George L. Windly says he is not bound to elect between the legacies given him in the will and the gift of the said Jesse by the said deed.

The other defendants answered. Eeplication. Exhibits filed. Set down for hearing, and transmitted to this Court.

*Hodman,*for the plaintiffs.

Donnell, for the defendants.

Battle, J.

The only question which the pleadings present for our decision, is whether the defendant George L. Windly shall be permitted to take the slave Jesse under the deed from his father, and yet claim the legacies given to him in his father’s will. The plaintiff insists that, according to the principles of equily, he cannot take both, and that'the Court will compel him to elect between the two benefits. The doctrine of elec*288tion is well established in the Courts of Equity both of England and this State. To originate it, two things are essential: 1st, 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. Avery, 1 Dev. and Bat. Eq. Rep. 376; *McQueen*v. McQueen, 2 Jones’ Eq. Rep. 16; *Flippin*v. *Banner, Ibid,*450. The principle upon which the doctrine is founded, is “ that one who takes a bounty under -an instrument, is under an obligation to give effect to the whole instrument, or rather that the donor intended that he should not -enjoy that bounty if he disappointed that bestowed on another in the same instrument:” The plaintiffs contend that the actcf 1844, ch. 88, sec. 3, (Rev. Code, ch. 119, sec. 6), brings the present case within the operation of the principle. The act declares that “ every -will shall be construed with reference to the real and personal estate -comprised therein, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the willand the argument is, that at the death of the present testator, the slave Jesse belonged to the -defendant George L. Windly, -under the deed from his .father, and that, therefore, the will, speaking at that time, gave to the feme plaintiff what belonged to-the said defendant. The eon-elusion deduced from this is, that as the defendant George-has •a legacy under the will, he cannot claim under both instruments, -but must elect between them -so as not to disappoint •the legacy to his sister. The legitimacy of this course of res--soning-depends upon the enquiry whether the act can admit of the construction contended for. What then i-s the meaning of the act ? And in order to ascertain this, we must first enquire what were the ..mischiefs which it was intended to remedy. These will be -found to have been of two kinds; one relating to real, and the other do personal, estate.

After the passage-of the statute of wills, it was settled that a devise could pass only-.such lands as the devisor had at the time when his will was -published.,, and that no words, however general, would embrace lands acquired afterwards, either by *289purchase or descent. 2 Black. Com. 378; *Battle*v. Speight, 9 Ire. Rep. 288. The effect of this was, that, as to all after' acquired lands and other real property, the devisor died intestate, contrary to his actual intention, and sometimes to the disappointment of the most cherished objects of his affections. With regard to personal estate, this rule did not prevail; for general words in his will would embrace all the personal effects of every kind of which he died possessed, or to which he was. entitled. But in some cases of specific legacies, his intention •might be frustrated by the operation of another rule. Thus, if a testator, having a lease-hold messuage, or a sum of £1000, three per cent consols, bequeathed “ all that my. messuage in A, ‘ or all that sum of £1000, three per cent consols standing i in my name,’ he is considered as referring to the house or stock belonging to him when he made his will, and,, therefore, if lie subsequently disposes of such house or stock, the bequest fails, though at his decease he may happen to be possessed of mes-suages, or a sum answering to the description in the will.” 1 Jar. on Wills, 280. Cases like this often occurred, and were supposed to disappoint, as no doubt, they often did disappoint,, the testator’s intention. To remedy these mischiefs, applying, though for different reasons, to both real and personal estate, the statute of 1 Vic. ch. 26, (of which our act of 1844, above set forth, is a literal copy), was passed in the year 1837. It needs no argument to show that the mischief did not extend to a case like the one before us. Indeed, to apply it to such a case would defeat the very purpose declared by the testator in the deed which he executed to his son. Mr. Jarman, in the conclusion of his chapter (the 10th) on the subject of *“*Erom wiiat period a will SPEAKS,” remarks “ that it will be remembered that the enactment which makes the will speak from the death, relates to the subject matter of disposition only, and that it does not, in any manner, interfere with the construction in regard to the objects of gift.” 1 Jar. on Wills, 291. The reason must be, that the objects of the testator’s bounty wore not within the mischiefs which the statute was intended to prevent, and it cannot, therefore, upon any *290just principles, be construed to apply to them. For a similar reason, it can not be extended, by construction^ to defeat the manifest intention of a testator to adeem a legacy, by giving effect to it under the doctrine of election.

It is not denied that the plaintiffs are entitled to an account, but they have no right to put the defendant George L. Windly to an election, or to call upon him for an account respecting the slave Jesse.

Pee Cueiam, Decree accordingly..