him to devise the same, Sir Henry John Parker, by accepting the benefits conferred on him by the will and codicil of his son, and by claiming under the same, elected and bound himself to confirm the will and codicil, and to give effect to the devise of the estates therein contained. Edwards v. Morgan.* The will and codicil of Sir Henry John Parker, taken together, did not in the sound construction thereof, and in the state in which his affairs were at the time of his death, raise a case of election as against Margaret Parker and Ann Parker; nor did they take any benefits under the will and codicil of Sir Henry John Parker. Margaret Parker and Ann Parker did not in any manner relinquish, or bind themselves to relinquish, their right and title to the estates in question; and Ann Parker, by her will (made with the privity of the Respondent, and without objection on his part), expressly asserted her right to the same. The possession and enjoyment of the estates in question, having during the period between the death of Sir Henry John Parker and the death of Ann Parker been consistent with the title of the Appellant, his claim has not been barred or prejudiced by length of time. For the Respondent.-The will of John Parker the son did not raise any case of election as against Sir Henry John Parker his father; and if it had raised any such case of election, Margaret and Ann Parker, the daughters of Sir Henry John Parker, could alone have called upon their father to elect, and they never did so; and he never elected to renounce his title to the property claimed by the * 1 Bligh, New Ser., 404. 1833. DILLON บ. PARKER. August 19. Appellant. Margaret and Ann Parker not only did not call upon their father to elect, but they took large benefits under the will by which he disposed of the property claimed by the Appellant; and they by repeated acts confirmed the dispositions made by the will of their father, and elected to take under it; and it is therefore not competent for the Appellant, claiming under them, now to dispute the dispositions of that will. The equity under which the Appellant claims, if any such ever existed, arose upwards of forty-three years before the bill was filed, and never was asserted by the parties through whom the Appellant claims. Cholmondley v. Clinton.* Lord Lyndhurst. I propose to move your Lordships for the judgment of this House in the case of Dillon v. Parker, which was argued last week at your Lordships' bar. It is the case of an appeal from a decree of Lord Chancellor Eldon, which decree affirmed a previous decree pronounced at the Rolls by Sir Thomas Plumer, when he presided in that court. The question relates to certain property that formed the subject of the marriage settlement of Sir Henry John Parker, in the year 1741. There is no question that the title at law to this property belongs to Sir William Parker, who is the Respondent in this case; indeed the very proceeding that has been adopted is an admission that the title at law belongs to him; but it is contended that circumstances of equity arose many years back, as far back as the year 1769 or 1771, which gave to the Appellant an equitable right, sufficient to control the legal right 4 Bligh's Rep., Old Ser., p. 1. of Sir William Parker. Now, where the legal title is admitted, the party who insists on an equitable title for the purpose of over-reaching and controlling the legal title must make out a clear, distinct, and satisfactory case; and the question will be in this cause, whether your Lordships are of opinion, upon the argument which was delivered at your bar, that such a satisfactory case of equity has been made out as ought to induce your Lordships to give judgment in favour of that equitable title so as to displace the legal title of the Respondent. The first question which arises in this case is upon the will of Mr. John Parker, the son of Sir Henry John Parker. It is argued on the part of the Appellant, that that will tendered a case of election. Undoubtedly the Master of the Rolls, when the case was before him, gave it as his opinion, that that will did raise a case of election; but when the case was before the Master of the Rolls, the agreement entered into between the father and the son was not in evidence before him. Some attempt was made to introduce that agreement, but that attempt entirely failed. When the case came before Lord Eldon in the Court of Chancery, that defect was supplied: evidence of the agreement was given by the Appellant; he read that agreement, as part of his evidence, out of the answer of the Defendant; and taking the facts contained in that agreement as proved, and considering the rights and situation of the parties in consequence of it, connected with the obscure inaccurate terms of the will of Mr. John Parker, Lord Eldon was of opinion that it was extremely dif ficult, if not impossible, to come to a satisfactory conclusion as to what the will of testator really was. 1833. DILLON v. PARKER. 1833. DILLON v. PARKER. I have read that will again and again I have attended to the very able argument which has been addressed to your Lordships upon the subject of it; and I confess that at this moment I find great difficulty in coming to any satisfactory conclusion-any sound conclusion, as to what the will of the testator really was. Whether he intended, in the event of his dying in the lifetime of his father, to dispose of that property or not, is extremely questionable; and unless I can see my way so as to ascertain with some degree of satis faction to myself what the meaning of the testator was, the very foundation upon which a case of election is to be raised must altogether fail. But I will assume, for the purpose of argument for a moment, that it was the intention of Mr. John Parker to raise a case of election: the next point which it is absolutely necessary for the Plaintiff to establish to your entire satisfaction is this, that Sir Henry John Parker did elect to take under that will, and not adversely to the will. Now upon the evidence I find nothing clear or satisfactory, to my mind, to show that he made any election to take under that will. Looking at it myself, I am not satisfied that Sir Henry John Parker even knew he was bound to elect under that will; I am not satisfied that he even thought a case of election was raised, so as to call upon him to elect; and I find nothing to satisfy me either that he thought he was bound to elect, or even that he had the means to take under that will rather than in opposition to it. Undoubtedly I find that he took benefits, and considerable benefits, under the will; but at the same time I find evidence to shew that he acted in opposition to that will. I think, according to the language of Sir Thomas Plumer, that the evidence is as strong to show that he acted in opposition to the will, as that he adopted or acted upon it. It was said in the course of the argument, and said with great truth, that he took considerable benefits under the will, and that it was more beneficial for him to adopt that will. That would be an argument if he had been called upon and required to elect, or if his attention had been directed to the subject to show how he had made his election; but there is no evidence to show that his attention was directed to the subject, and I find that in a very few months after the death of the testator (Mr. John Parker), Sir Henry took a course directly at variance with that will, and resisted the provisions of the will as strongly as it was possible for him to do. Instead, therefore, of being satisfied that the Plaintiff has made out a case in equity, founded, first, upon a case of election being tendered under that will, and, in the next place, of Sir Henry Parker having actually elected to take under the will; if I were called upon to come to a conclusion, the conclusion in my mind would be rather that the will did not tender a case of election, and that Sir Henry Parker never did elect to take under that will, that he manifested as strong an intention to take adversely to that will, as he did to elect to take under that will, and that no case of election had been made out. Much argument was addressed to your Lordships from the bar, with respect to the effect of the agreement. That agreement, containing the proviso, was made evidence by the Appellant him 1833. DILLON บ. PARKER. |