Weeks v. . Weeks

RodmaN, J. The insurance money ($5,000) which the testator expected to be paid, and which was in part paid after his death, was the property of his six children. Nevertheless he bequeathed it in effect to his four younger children who are plaintiffs. *424 It is immaterial whether he supposed this sum to be hi® own, or knew it to be the property of all the children equally. He owned land which he might dispose of at his pleasure, and he devised that the aforesaid sum should be applied, on an event which took place, to the payment of Ms debts, and that the plaintiffs should first have that value laid out to-them in his land, and that then the residue of the land should be equally divided among all the children* There is no doubt about the intent of the testator,' that the plaintiffs shall have all the land in case the defendants do not release their rights in the insurance money. It is a familiar principle of equity, that a devisee or legatee cannot claim both under a will, and against it. If the will gives his property to another, he may keep his property, but he cannot at the same time take anything given to him by the will; for it was given to him on the implied condition that he would submit to the disposition of his property made by the testator. He is put to his election. Adams Eq. 92. In the present case the defendants who are the two older children of the testator, might have elected to take their' respective sixth parts of the insurance money, abandoning thereby all claim to the land of the testator under his will. They were entitled to a reasonable time for making their election. In case any of the parties put to an election are under a disability, the Court will order a reference to ascertain what is to their advantage, and if an account be necessary for that purpose, will order one. In the present case the defendants are epmpetent to decide for themselves. No account would assist them. There is no way to ascertain the value of the shares of the land which they would get under the will, except by a sale, which neither party has asked for. There is error in the judgment below which is reversed. The defendants will be required to elect; — whether they will take their respective sixth parts of the insurance money, and *425 abandon all claim to any part of the land of tbe testator mentioned in bis will; or, whether they will abandon their' respective shares in said insurance money to be applied as directed by the will, and take the shares of the land given them by the will. If the defendants shall elect the first alternative, their election will be entered of record and the action dismissed, as the plaintiffs will be then sole seized, unless they shall amend their complaint with a view to a partition among themselves. If the defendants shall.elect the second alternative, a portion of the land devised, of the value of the insurance money, ■ will be laid off to the plaintiffs in common, and the residue-divided equally among all the children, or a division upon the principle stated may be made in any way agreed on by the parties, or which the Court considers just and equitable. The case is remanded to be proceeded in according to this opinion. Pee OüRiam. Judgment accordingly.