Storring v. Borren , 55 Barb. 595 ( 1864 )

By the Court, Foster, J.

I think the findings of the referee are supported by the evidence. The testimony shows that, in the same year that his father died, Henry Storring left home and went to Joel Falkner’s, and remained with him some five years, and there learned the trade of a miller, an employment which it is proved he followed at several places, for several years thereafter. The plaintiffs introduced in evidence the agreement of the 18th of May, 1817, between his three brothers, which made provision for paying him the $100 mentioned in the will. It is true that this would not have" been competent evidence coming from the other side, but they chose to introduce it themselves; and although it does not directly establish, as against Henry, that he had elected to learn the trade and take the $100, it does show that his brothers understood, as late as 1817, that he expected to receive the $100, and that they were not aware that he intended to claim the real estate. Again, there is no proof whatever, to show that he ever did, at any time prior to Ms mother’s death, in 1841, (some 29 years after the death of his father,) make known to any one that he intended to claim the real estate; and although after her death he commenced an action of ejectment in which, in 1845, he was nonsuited, it does not appear that he after-wards made any further claim to it, though he lived till 1860. It is not very material to the determination of the question, whether in fact he had a guardian appointed, or whether the $100 was unpaid to him. The true question is, did-he elect to receive the benefits to be derived from the first branch of the bequest, or did he elect to take under the devise of the real estate; and not whether he afterwards so acted as to carry out all the intentions of the testator in respect to them.

When was his election or preference to be exercised ? If the language of the clause had been indefinite as to time, he would have a right to delay making the choice until he could ascertain, clearly, which would probably be most beneficial to him, and especially as he was under age when his father died. But the will is explicit. It required the choice to be made at the decease of the testator ; meaning at once, after the provisions of the bequest should become known to him. The testator could impose such terms as he pleased, as a condition of his son’s receiving the legacy or bequest, or he could cut him off entirely if he chose; and when he saw fit to impose the conditions, it was for the legatee to make the election at the time required. Infancy is no excuse for not making the election. “ The principle indeed is universal; it prevails in the laws of all countries, is applicable to all interests, to the interests of married women and infants.” (3 Bacon’s Air., title Election [E,] 315.)

I have said that it does not appear that he gave notice in any way, that he elected to take the devise of the real estate; nor does it appear in explicit terms that he chose the legacy. But how did he act. His every act during the five years after his father died, as far as the proof discloses it, was consistent with an election to learn the trade and take the $100. TTpou the question whether or not he elected to take the lands, the plaintiffs have the affirmative. It is not enough for them that the defendants do not prove that he did not elect to take them. They must prove that he did, before they can claim the benefits of an election. Then if he was bound at once to make the election, and if he did make it in favor of the legacy, though he was- under age, and ne^er received the $100, he could not change the election: and the only claim he could have upon the land was his lien upon it, created by the will, for the payment of the money.

[Onondaga General Term, April 5, 1864.

The judgment Should be affirmed, with costs of the appeal.

Morgan, Bacon and Foster, Justices.]