1833.

MIREHOUSE

บ.

RENNELL.

consequences might ensue. Not so, if the presentation goes to the successor. The church would take care of the fitness of the appointment. As to the argument from the case of options, it was a bad practice introduced by the pope.

There are some cases in the Courts of Equity where options have recognized as the subjects of limitations in trust. These decisions proceeded upon the assumption that options were disposable at law as property. But the first case to be found of the assignment to an archbishop of a particular benefice, is that of Archbishop Cranmer. The legality of the practice may be doubted. If it had been the common law, it must have existed before the reign of Hen. 8.

I trust that this question will be settled by an act of parliament; and in this hope, although I do not concur in the opinions of the majority of the Judges, I will not oppose the motion for the affirmance of the judgment.

Judgment affirmed.

A party claiming under an instrument, raising, as he contends,
a case of election in equity against a party in possession
under a legal right, must make out a clear and satisfactory
case to entitle him to displace the legal right.
Where, under the will of a son, giving benefits to his father,
but of doubtful construction, there was no evidence that
the father understood that a case of election was raised by
the will, or that in fact he elected to take under it, and to
give up estates disposed of by the will, to which he was en-
titled under a marriage settlement; and where it was in
evidence that the father did acts in opposition to the will of
the son; and where, by his own will, he so disposed of the
estates, that his daughters might either claim life estates
under that will, or estates in fee under the will of the
son; and it was in evidence that they by letters declared
and executed deeds, reciting that they took as tenants for
life under the will of their father; and especially where the
equity, if any, arose forty-three years before the suit, and
the daughters had then the opportunity to call on the father
to elect and failed to do so: Held, that it was doubtful
whether a case of election existed, and that a party claiming
under the daughters as heir could not assert such right after
such lapse of time in a court of equity.

Where possession is referrible to either of two inconsistent
rights, the acts of a party bound to elect, in order to con-
stitute election, must imply a knowledge of the rights, and
an intention to elect.

DILLON บ,

PARKER.

1833.

DILLON
V.

PARKER.

THE question in this appeal arose in a suit in the High Court of Chancery in England. The case of the Appellant, who was Plaintiff in the suit, appearing by his bill and in his printed case, was as follows:

Sir Henry John Parker, baronet, in the year 1741, intermarried with Catherine Page. He was at that time a widower, and had two daughters, Margaret Parker and Ann Parker, by his first marriage.

At the time of his second marriage, he was, among other things, seised in fee simple of the manor of Talton*, with the mansion-house and land thereto belonging, and of a freehold house * in Salisbury Court, in the city of London; he was also entitled to certain premises in the parish of Tredington, in the county of Worcester, held under a lease granted by the Lord Bishop of Worcester to him his heirs and assigns, for the lives of three persons. He was also entitled to a leasehold estate, held under the crown for a term of years, consisting of the manor of Hampton in Arden, in the county of Warwick, the site of the said manor, and the houses, farms, lands, and premises belonging thereto.

By indentures of lease and release, bearing date the 1st and 2d days of October 1741, Sir Henry John Parker granted, &c. to trustees, all that messuage in Salisbury Court; and also all that manor, &c. of Talton; and also all those six grounds, &c. in Tredington; to hold, &c. after the marriage, to the use of Sir Henry John Parker and his assigns, for his life, with remainder to trustees, to preserve

These were the estates in question in the suit.

contingent remainders; with remainder to the use of Catherine Page for life, and after the decease of Sir Henry John Parker and Catherine Page, with remainder to the first and other sons of Sir Henry John Parker, on the body of Catherine Page, to be begotten in tail male; or in default of such issue, to the use of Sir Henry John Parker, his heirs and assigns.

By another indenture of assignment and settlement, dated the 2d of October 1741, Sir Henry John Parker assigned the above-mentioned leasehold estate, at Hampton in Arden, to trustees, upon trust, after the solemnization of the intended marriage, to raise by mortgage the sum of 1,500l. to be paid to Sir Henry John Parker, in discharge of a like sum by him applied in payment of a mortgage upon the said estate at Tredington, and subject thereto, and to certain trusts for the renewal of the lease or leases by which the premises were held, and for the renewal of the lease of the said estate at Tredington, upon trust for Sir Henry John Parker for his life, and then upon trust to raise 5001. for Catherine Page, in the event of her surviving her intended husband, and subject thereto, upon trust, to raise such sums of money not exceeding 5,000l. for the portions of the daughters and younger sons of the intended marriage, as Sir Henry John Parker should appoint; and in default of appointment, to raise and pay 5,000l. to such daughters and younger sons equally, and subject to the aforesaid trusts, upon trust, to raise and pay any sum not exceeding 1,000l., as Sir Henry John Parker should appoint, and subject thereto, upon trust, for such son of the intended marriage as should be the heir of Sir Henry John Parker, and

1833.

DILLON

v.

PARKER.

1833.

DILLON

v.

PARKER.

for default of such son and heir in being at the decease of Sir Henry John Parker, or then in ventre sa mere, upon trust for the daughters of the intended marriage, as therein mentioned.

The marriage between Sir Henry John Parker and Catherine Page was solemnized soon after the date of the above-mentioned settlement, and there was issue thereof one son, namely, John Parker, esquire; and two daughters, namely, Catherine Parker, afterwards the wife of Chichester Fortescue Garstin, esquire, and Margaret Sophia Parker, afterwards the wife of John Strode, esquire. Catherine Parker, formerly Catherine Page, the wife of Sir Henry John Parker, died in the year 1750, leaving her said husband and three children her surviving.

Besides the estates comprised in the settlements of October 1741, Sir Henry John Parker was entitled, under the will of Robert Hyde, esquire, to the reversion in fee simple of a freehold estate at Hatch, in the county of Wilts, expectant upon the death of the Earl of Clarendon without male issue; an event which happened about the year 1758. By indenture, dated the 25th of October 1753, and made between Sir Henry John Parker, of the one part, and John Page and Jonathan Tyers, of the other part, Sir Henry John Parker, in consideration of his natural love and affection for his children, John Parker, Catherine Parker, and Margaret Sophia Parker, and in consideration of 1,000l. paid to him by John Page, their maternal grandfather, settled a moiety of the Hatch estate to the uses following: (that is to say,) as to one moiety of such moiety to the use of himself, till John Parker, his son, should attain twenty-one, with remainder to John Parker, his heirs and assigns; and as to the other moiety,