ELECTION. MISTAKE. PURCHASER NOTICE. Feb. 23, 1818. ticular description confines it to Thomas, the son of his eldest son Sampson. I call your Lordships' attention to this, as he might be considered as having FOR VAL. CON. regard to the circumstance that illegitimate male WITHOUT issue, who might in contemplation of law be legitimate, might be included. The next instrument TIME.-AD- to which I call your Lordships' attention is the will ANSWERS, &c. of August, 1735. And Sir Thomas makes this will Will of old Sir after he had made the settlement of 1727, not inT. Parkyns. Aug. 18, 1735. cluding in that settlement the manor of Rud LENGTH OF MISSIONS IN dington, of which for any thing that appears he had the fee, and having the reversion in fee of the Ruddington estates. After directing the payment of his debts, funeral and testamentary expenses, he gave and devised-" All and sin"gular his manors, lands, tenements, and here"ditaments, situate, lying, and being in the se"veral towns, parishes, fields, precincts, or ter"ritories of Bunny, Bradmore, Ruddington, "Costock, otherwise Cortlingstock, East Leake, "otherwise Great Leake, Wysall, Willoughby, "Reyworth, and Gotham, in the said county of "Nottingham, or in any of them; and all other "his lands, tenements, rents, and hereditaments, 66 lying and being in the said county of Nottingham, " and the advowsons of all churches in the several "towns and parishes of Bunny, Reyworth, and Costock, otherwise Cortlingstock, above-mentioned: "and all his lands, tenements, and hereditaments in Wymeswould and Barrow-upon-Soar, in the county of Leicester, and a fee-farm rent at Bol"sover, in the county of Derby, together with an annuity or rent-charge of 100l. per annum issuing 66 66 "out of the river Wey, near Guildford, in Surry; Feb. 23, 1818. "and all and singular his chief rents and fee-farm ELECTION. PURCHASER rents issuing or payable out of any of the said MISTAKE.— towns before-mentioned, or any of them, or-out FOR VAL. CON. "of any lands or tenements in the precincts of the WITHOUT "said towns. NOTICE.- TIME.-AD- "Unto John Sherwin, of the town and county " of Nottingham, Esq. Richard Porter of Arnold, ANSWERS, &c. "in the county of Nottingham, Esq. Abel Smith, "of the town and county of the town of Notting"ham aforesaid, Esq. George Barratt of the city "of York, woollen-draper, and Samuel Sterropp "of the town and county of the town of Notting"ham aforesaid, Gent., their executors, administrators, and assigns, for the term of ninety-nine years, to commence from his (testator's) death, 66 upon the trusts, and to and for the ends, intents, "and purposes thereinafter mentioned, &c. 66 "from and after the determination thereof. And "To his eldest son, Thomas Parkyns, by his "then wife, Dame Jane Parkyns for life: re"mainder to the said John Sherwin, Richard 66 66 Porter, Abel Smith, George Barratt, and Samuel Sterropp, their heirs and assigns, for the life of "the said Thomas Parkyns, upon trust, to preserve contingent remainders; remainder to the first son "of the body of his said son Thomas Parkyns, "lawfully begotten in tail male; remainder to the "2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and all " and every other son and sons of the body of his said son Thomas Parkyns, lawfully begotten, severally and successively, in tail male; remainder "to George Parkyns, testator's second son, for life; 66 ELECTION. PURCHASER 66 Feb. 23, 1818." remainder to the said John Sherwin, Richard Porter, Abel Smith, George Barratt, and Samuel MISTAKE.- Sterropp, for the life of the said George Parkyns, upon utrst to preserve contingent remainders: re"mainder to the first son of the body of the said "George Parkyns in tail male; remainder to the "2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and ANSWERS, &c." all and every other the son and sons of the body "of the said George Parkyns, lawfully begotten, NOTICE. LENGTH OF TIME.AD MISSIONS IN 66 severally and successively, in tail male; remainder "to all and every other the son and sons of the said "testator's body, lawfully begotten, or to be be 66 gotten, severally and successively, in tail male; "remainder to testator's daughter, Ann Parkyns, "in tail male, with the ultimate remainder or re 66 version to testator's own right heirs for ever: "Proviso, that no wilful waste should be com"mitted on all or any part of the said estate thereby "limited, or that the person or persons for the time "being entitled to the same by virtue of the said limitations, should make sale of, cut down, or 66 destroy, any timber or other trees standing on "said estate (except as therein excepted, and sub"ject to certain restrictions therein mentioned)." Now the utmost construction that can be given to this, prima facie, is that he means to dispose of such estates at Ruddington as were his own; and these were only the manor and the reversion. But although it appears, primâ facie, that he meant to pass only what was his own, yet if the context shows that he means to propose a case of election, and chooses to consider that which was not his own as his own, for the purposes which he had in view ELECTION. PURCHASER NOTICE. TIME.-AD- Pre. in Ch. in making his will, the expression my manor, lands, Feb. 23, 1818. &c. will not prevent a case of election from being raised. And all the cases from that of Noys v. MISTAKE.— Mordaunt, which is usually considered as the first, FOR VAL. CON. though I rather think it is not the first, case on the WITHOUT subject, to the present time, election amounts to this. LENGTH OF If I choose to devise my real estate to the Noble Marquis opposite, I put it in this way because the ANSWERS, &c illustration will make it more familiar: and in the 265. same will I dispose of an estate which is not mine Election. but his, a court of equity will say that he shall take no benefit from that will unless he makes good the whole of the will: and the Noble Marquis would not take therefore, unless he allows the whole of the will to be effectual, i. e. suffers his own to be disposed of according to the will or makes compensation for as much as he takes of mine. That is election. But primâ facie, it is not to be supposed that a testator disposes of that which is not his own. It must be by demonstration plain, by necessary implication, meaning by that the utter improbability that he could have meant otherwise, that the case is raised. But where there is that plain demonstration, that necessary implication, then you must give up all to pass according to the will, or make compensation. But it rests upon those contending for a case of election to show that there is that manifest plain demonstration, and utter improbability. So that the question comes to this, whether it is just reasoning in this case to say that there is that clear manifest declaration of intention which raises a case of election. Now it is unquestionable that if by these words describing the premises ELECTION. MISTAKE. PURCHASER FOR VAL. CON. WITHOUT LENGTH OF MISSIONS IN 514. Feb. 23, 1818. he intended to devise a present interest in the premises in which his first son Thomas had an estate tail, that amounts to a case of election; but that did not touch the term of ninety-nine years for the regular payment of the wife's annuity, nor the term created for the purpose of raising portions. The testator then devises and bequeaths a fee-farm rent ANSWERS, &c. and a rent charge, as a provision for his second son George. And if he had stopped there, this case 1 Ves. Jun. Would have been similar to that of Blake v. Bunbury. But it does not stop there, for he shows that he had in view the settlement of 1727, and declares that this provision was in addition to any portion given to George by that settlement which he expressly ratifies and confirms with every thing therein contained. Now in order to raise a case of election, you must either strike out these words, or you must say that these words have the same meaning as those in Blake v. Bunbury, i. e. that he confirms the settlement only as far as respects the portion given by it to George. George also had an estate tail by the settlement, and he must be supposed to intend to continue that, and to destroy the estate tail of Thomas, or to confirm the settlement, except in so far as respects the estates to Thomas and George; but he has said that he confirms it and every thing therein contained. And upon what principle you are to strike out these words of such mighty import, and without any express declaration to warrant it, is more than I am able to state. Then he declares the trusts of a term to be that the trustees should lay out the rents and profits of |