#### *Dr. Daniel Long vs. Dr. Thomas Wier and wife.*

Testator bequeathed to his son, Dr. L. a slave named Amy. To his other children, of whom Mrs. W. was one, he bequeathed divers specific legacies, all of which, including the legacy to Dr. L., he directed should be appraised, with a view to ascertain the value of each ; and he directed that the legacies should be equalized out of the sales of a portion of his estate. After the execution of the will, on the marriage of Mrs. W., he gave her the slave Amy. *jHeld,*that Mrs. W. was not bound to elect between the legacy to herself and the slave Amy, but that she was entitled to both.

The doctrine of election is founded on the apparent intent of the testator, that the legatee should surrender soma right in exchange for the legacy. To ascertain, therefore, its application in any particular case, reference must be had to the state of things existing at the tirrie the will was executed, and not to subsequent contingencies, Unless they are expressly referred tó and provided for.

*Before*Johnson, CJh. *at*Laurens,

June, 1845.

*The Chancellor.*The late Robert Long, by his last will and testament, bequeathed to his son, this complainant, amongst other things, a female slave called young Amy. He also gave to his other children, of whom the defendant, Mrs. Wier,- was one, divers specific legacies, all of which he directed should be appraised, with the view to ascertain the value of each,- including the specific legacy to the complainant; and that the legacies of all should be equalized out of the Sales of a portion of his estatei After the execution of the will, he gave the slave Amy to the defendant, Mrs. Wier, on' her marriage ; and the bill prays that the' defendants maybe compelled to elect between the legacy and the slave, and for her specific delivery, in the event of their electing to take the legacy, and for an account of hire.

The doctrine of election, as defined in *Broome vs.*Monde, 10 Yes. 611, is where the testator gives what does not belong to him, but does belong to some one else, and gives that person an estate of his own, whereby a condition is implied, either that he shall part with his own estate, or shall not take the bounty. It is founded on the apparent intent of the testator,- that the legatee should surrender some right in exchange for the legacy, and *284can, therefore, never arise where the legatee had not, at the time of the execution of the will, any interest or right in the property devised. A will is said to ambulatory until the death of the testator, and speaks in reference to that time. This is true, as to its legal effect — it can only operate upon things as they then exist; but in arriving at the intention, regard must be had to the state of things existing at the time, and not to subsequent contingencies, unless they are expressly referred to and provided for — 1 *Roper on Wills,*493, *note,*lsi *Am. ed. Mog-gridge vs. Thackwell,*i Ves. 475.

The defendants here found their claim to young Amy, upon a parol gift from the testator to the wife. The evidence in support of it, refers to two distinct times and occasions. The witness, Jane Smith, testified that Amy was born in 1826, and was one of two children brought forth at the same birth, and that the testator said he would give her to the defendant’s wife, his daughter, and the other child to another of his daughters ; .but there was no delivery, or other act indicating a consummation of a gift. But Elizabeth Long, one of the testator’s daughters, testified that defendant and his wife lived in the house of the testator some time after their marriage ; and when they were about to remove, the testator enquired of witness, if she knew what property the defendant’s wife wanted as a portion, and the witness told him that she had understood that she wanted young Amy, amongst other things. Testator replied that he had *willed*her to complainant, but that he had a right to do what he pleased with his property, and he would *will*complainant another; and when defendant removed he carried Amy with him, and has had possession ever since. These circumstances are universally considered as conclusive evidence of a gift.

The will is dated in 1830, and the testator died in 1842 ; but it does not appear at what precise time the defendant and his wife removed from the testator’s house, that being the time when the gift was consummated. The evidence of Elizabeth Long shows, however, that it was subsequent to the execution of the will. It is impossible, therefore, that the testator could have intended to put the defendant’s wife to elect between Amy and the legacy. In the state of things existing at the time of the execution of the will, there was nothing between which to make an election, for she had no property in Amy, nor is there any tiling-found in the will indicating an intention that it should operate, *285in this respect, prospectively. The gift to the defendant’s wife was an ademption of the legacy to complainant; and, a-s to that, operates as a revocation of the will. • As to this question, the bill must, therefore, be dismissed.

The complainants appealed, and now moved this court to.reverse the decree.

*Irby,*for the motion.

*Young,*contra.

*Per Curiam.*

*We*concur in the decree of the circuit court. Appeal dismissed.

Johnson, Johnston and Dunkin, GC. concurring.