#### Jackson, *ex*dem. Valkenburgh, *against*Van Buren.

0ne hundred-acres of land, m SS ^easídhe¿etete í,erSreaí'ía!nwa/hei/tSt panícula!0 pan Tested *in M.v*ing made any election in her lifetime, the right of election was gone, and hS«?especMiy aieyeaai!apSfrom !hCT¡s!iíhofth®

THIS was an action of ejectment, tried before Mr. Justice J *Van Ness,*at the *Columbia*circuit, in *January.*1815.

The lessor of the plaintiff is the son and heir of *Maryehe, (Ma*ri«,) a daughter of *Peter Martin Van Burén,*who was married to *Jerome Van Valkenburgh.*She died before the revolutionary war, and her husband after the war. *Peter,*the lessor’s elder brother, died before the war, without issue.

It was admitted that *Peter Martin Van Burén*was seised, in. *e>*_ 1720, of an undivided ninth part of *De Bruvn s*patent, m the' r . *a 1*’ town of *Kinderhook.*He left six chileren, to wit; *Cornelius, Parent, Tobias, Martin, Eytie,*and Maria, or *Maryehe.*

Evidence having been given of the existence and loss of the original will of *Peter Martin Van Burén,*made in 1722, a copy thereof was read in evidence, and which contained the following clauses: “ I give to my daughter *Eytie Vosburgh,*wife of *Martin*Vosburgh, the house in which she now lives, with five *morgan*of land with it; and twenty-five morgan of woodland, and twenty» five *morgan*of pine wood, where she pleases to take the same, out of the right of *De Bruyrds*patent, which I have acquired by deed from *Johannes Van Alen,*for her, her heirs and assigns, for ever.” “ Also, I will that my youngest daughter, *Maryehe Van Burén,*shall have a decent outset, so as her sister *Eytie*has had, &c. and twenty-five *morgan*of woodland, and twenty-five *morgan*of pine-wood, out of the right of *De Bruyrís*patent afore» said, to her, and her heirs and assigns, for ever.” The testa» tor gave to his four sons equal shares of *De Bruyn’s*patent, except what he had before devised.

The plaintiff read in evidence an act passed the 4th of *Fe°**526*braary,*1794, confirming a division and exchange of a certain jracj, 0f Jand in *Kinderhook*granted to *John Hendricks He Bruyn.*The partition was made in 1793, by which lot No. 1 of the third allotment, and lot No. .2., of the first allotment, fell to the share of *Peter Martin Van*Burén. The plaintiff also* gave in evidence articles of agreement made in 1792, to which the defendant was>a party, Confirming the exchange, and authorizing the partition referred *to in*the above-mentioned act.

A written notice, dated the 1st of *August,*.1813, signed by the lessor, was served on the defendant, which referring to the will of P. *M. Van Burén,*and the devise to his daughter *Maria,*stated that he, the lessor, as heir at law of the said *Maria,*gave notice that for the remainder of the land,, which was still'due under the said devise, he had located upon, and chosen, lot number one, of the third allotment, and fifteen acres of thé eastern part of that portion of *lot*No. 2, of the first allotment of *John E. Van Aden’s*division of the said patént, &c., as is .nbw in his, the defendant’s, possession; which said Jots No. 1. and No/2., upon the division aforesaid; were allotted to the heirs and representatives of *P. M. Van*Burén.. . ■ *■'*

The defendant was in possession of about half of lot No. 1., and of the eastern part of lot No. 2.’, on which the defendant’s house stands. - .

*C. Van Alen,*a witness For the defendant, testified that No. of the 7th allotment of *He Bruyn’$*patent fell to the share of *Peter Martin Van Btiren,*containing 2(90. acres. That the lessor ©f the plaintiff, in 1794, after *John E. Van Alen’s*survey., made a location en 51 acres lying west of the *Albany*road, as heir of his mother, according to the will of *P. M. Van Burén-, by*cutting a possession fence around it, and declaring that he took it under the will; and the witness purchased 25,iacres of this lot ©f the lessor, which he held under that title; and the residue was field by other purchasers, from the heirs of P. *M- Van Burén.*The witness had contracted to purchase óf the lessor the whole of the 51 acres, but got a deed for one half, only ; the other half being in possession of persons claiming under thé heirs of *P. M‘ Van Burén,*who'refused to let him have it. This was considered pine land. The lessor got his oak land in another part of the patent. The witness advised- the lessor, as his location was resisted by the possessors, to give it up. ..The lessor, accordingly, gave it up,, and said he; would locate elsewhere, on a lot lying east of the post road. The land in the *527possession of the defendant was considered by some of the wit* nesses as oak land, and by others consisting of oak and pine land.

A verdict .was taken for the plaintiff, by consent, subject to the opinion of the court on a case agreed upon, containing the facts above stated.

*Van Vechten,*for the plaintiff)

contended that the right of election given to *Maria, Van Burén,*descended to her heirs, and might, therefore, be exercised by the lessor of the plaintiff.*

• *Van,*Burén, (Attorney-General,) contra,

insisted that the right of-election must be exercised in the lifetime of the devisee or grantee, and was not descendible,† That it would be against justice and good policy to. allow, it to be exercised after a lapse of near a century, from the death of the testator- He relied on the case of *Vandenbergh*v. *Van Bergen**‡***as in point.

*Van.*Vechten, in.reply,

said, that the devise ought to be earned into effect, so, far as it could be done consistently with the rules .of law. The testator.clearly shewed his intention that the interest devised should vest; and if so, it was a descendible interest. The devise was to JÍ., and her heirs and assigns. There was no limitation as to the person who was to make it and the cases cited, to show that' the right of election must be exercised in the lifetime of the person to whom it was given, were not applicable. Besides, it was in the power of the adverse party to quicken the exercise of the right of election, as soon as the lessor was in a situation to make it.

*

 9 Van. Abr. 359. 361. 362, *363.*36 b. 37 a. Moore. 691. Cro. Eliz 819 2Blst. 7.

†

 2 Co 37. *Dyer,*287. *anders, 11, Hob. 174.*

‡

*Ante,*p.212.

Yates, J.,

delivered the opinion of the court. The devise *toMaryche*was intended, by the .testator, to be the same (as to -the right of election) with the one to his daughter *Eytie,*and must be governed by the same legal principles. She had a. right, then, to locate the twenty five *margan*of pine wood land where she pleased ; and. until the location had been made by •her, the lands thus devised in severalty could not be distinguished, or taken from the residue, owned by the testator in *Be Bruyn^s*patent; and it remained wholly uncertain to what part of them she would have this right in severalty, or to which part such right would attach, until the act was consummated by *528her ; for' this reason no éstate; or ¡Merest, in ,any' -partieüá l&r Part of those lands could pass to her, presently, by *the devise,*but depended Upon the previous act of election to'be made by her; and she not having thought proper to make it in her lifetime, it is important to examine whether the right can be extended to her heirs. • .

In 2 *Coke’s Rep.*36, 37., *(Heyward’s Case,) At*is stated, that when nothing passes to -the feoffee, or grantee, before' the election, to have one thing or the ' other, theixjhe election ought to be made in the'lifétime of the ,parties, arid the heir/or executor, cannot make the election; and *Bullock’s Case*of 10 *Eliz,*281., is there cited from *Moore**81. inwhiqh it is stated, .that if the heir of the feoffee should make the election, he would be in as a purchaser ; for nothing passes to the feoffee before election,; and, by the law, he cannot be a purchaser, for then the words.(his heirs) were words of limitation.

*The*case of *Vandenbergh*v. *Van*Bergen *(Ante,*212.) is, in some measure, .applicable .to this, " There .the defendant, Under a deed for certain lands in *Cbxsáckie*patent,- with full liberty and license to erect and Build a mill on any place at; or on *the Coxsackie Creek,*with liberty, of ground and stream of water,, claimed the right of. overflowing the plaintiff’s land, which was held by the grantor, at the date of the defendant’s deed; this court decided; that though the.grantee, in his lifetime, would have had a right to erect a mill on the creek, and to have overflowed, so far as was reasonable and necessary, the land of the plaintiflV'adjacent to-the creek, which land had been purchased from th,e defendant’s grantor, subsequent to: the date of his deed, yet, not having, elected to erect the mill in his lifetime, the right becameextirict at his death. So here the right was potential, and rested entirely Upon the location and election to be made by the devisee. She was not vested in her lifetime with the title to any particular parcel; By virtue of the will, her election and location were'necessary to consummate/ the title,, and she never having, designated the .land, the exerpise of the right, bythe-heir, is'goné, particularly as. the claim is interposed upwards of forty years after the death of the. ancestor. But this need not be urged in the decision pf the present ■cause; for, .admitting that the right to” elect Was' riot confined to, the,ancestor, and that- it descended to the heir,, there can be, no, doubt but thaty in this instance, the heir has;, by a preyiotis elec*529lion of other lands, extinguished all possible claim to the pre- » . . mises m question.

It appears, by the case, that in 1794, the year after *John E. Van Alen’s*survey, the lessor of the plaintiff elected to locate *SI*acres, or 24 morgan, at another place, as heir of the devisee, according to the will; that he made an entry on the land, and cut a possession fence around it, and actually sold 25 1-2 acre.s parcel of it, which is now held under that title; but to avoid a law-suit with persons claiming under other devisees, he thought-proper to abandon his claim to the residue. If he had any right to make his election, it is extinguished by that location as to any other lands owned by the testator. No acts could be more, prominent; he openly avowed his intention, took possession, and sold part of the land. He was, consequently, obliged, thereafter, *to*confine his claim under the devise to his mother, to those lands, and cannot now resort to other property in the patent belonging to the testator; it would be extending an unreasonable latitude to the exercise of a right of this description; and, in its consequences, would be attended with fraud and injustice to *bona fide*purchasers. The election thus made by the heir, therefore, independent of the reasons before assigned, is sufficient to entitle the defendant to judgment.

Judgment for the defendant.