The Equitable Doctrine of Election*
Bill Long 12/3/05
Trying to Solve Another Puzzle
[*This is to be distinguished from the common law and now statutory, doctrine of election of remedies.]
I came upon this issue or doctrine, usually appearing in the area of wills and trusts, when I was searching the meaning of reprobate. As I mentioned in that essay, I learned that reprobate had a significance in law in the maxim quod approbo non reprobo--"that which I approve, I cannot disapprove." A search of cases which use the phrase "approbate and reprobate" showed me two things: that the Virginia appellate courts use the phrase quite freely in our day to mean almost anything they want but that a few state courts use the phrase in its proper historical connection with respect to will contests. But, I further discovered, once I began to scratch beneath the surface of the way that "approbate and reprobate" was used in the law of wills, I sank into a swamp of almost inpenetrable murkiness. Let me see if I can show you what I mean.
The Basic Principle
It has been a basic principle of equity jurisprudence for three hundred years (going back to Noys v. Mordaunt in 1706) that if a person devises his estate to his two children (he gives to one his land in fee and to the other his entailed land, in this case) that one of the two cannot claim his/her half share and then bring a successful contest to get the other half of the property. The principle was stated by the judge as follows: "it is upon an implied condition, that each party acquit and release the other; especially as in this case, where plainly he had the distribution of his whole estate under consideration." In other words, we may say that equity accepted the principle that a person taking property under an instrument such as a will must accept the whole of the instrument. S/he cannot "approbate" the will by accepting the benefit it confers and at the same time "reprobate" it, by denying th effect of its other terms which awards something to someone else. This principle of not approbating and reprobating is also known as the equitable doctrine of election. In the words of the Illinois Supreme Court:
"Election under a will consists in the exercise of a choice offered a devisee or legatee of either accepting its benefits and surrendering some claim, right or property, which the will undertakes to dispose of, or of retaining his claim, right or property, and rejecting the provisions made for him by the will" (Lloyd v. Treasurer of the State of Illinois, 82 NE 2d 470, 473 (1948)).
Complications Enter
It seems so simple so far. If you accept your share under the will, you can't contest anyone else's share. But let's throw in the simple, and not at all uncommon fact, that the testator, in drawing up the will, actually devises property he doesn't own to someone else. More specifically, the following very common situation has arisen over time. A parent owns a piece of property in joint tenancy with a child ("A"). Forgetting that reality or thinking that s/he still owns 1/2 of the property, the parent draws up a will bequeathing the property to someone else. At the same time there is a provision in the will that the child (A), who actually holds the property in joint tenancy with the parent, should receive a sum of money, or other property or is a residuary legatee, receiving what is "left over" after other bequests have been made. After the parent dies the joint-tenant child sees what has happened. The parent has improperly devised the jointly held property to "B." And, the parent has given the first child, let's say, a cash gift. What to do?
Let's give an example. Suppose the real estate was worth $100,000 and suppose the cash gift was $100,000, with the parent wanting the real estate to go to the second child ("B", even though by operation of law it passes to "A" at the parent's death) but the cash to go to the first ("A"). In other words, the parent was trying to go for an equal distribution of the remaining assets. But, in fact, the parent had no authority to hand over the land at all to anyone. Thus, under the strict terms of the will, the bequest of the land would have no effect and A would get the $100,000 in cash and keep the land worth $100,000. Thus, A would get all $200,000 and B would get nothing.
It is here that the doctrine of election or quod approbo non reprobo has been extended in equity. In his classic treatise on wills, Page deals directly with this issue:
"[a] tenant in common, joint tenant, or tenant by the entirety, who devises the whole of such real estate to some one other than the other tenant, and then gives to such other tenant other property by will, puts such other tenant to an election between retaining his original interest in such real estate or accepting the benefits of the will" (5 Bowe & Parker, Page on the Law of Wills, sec. 47.13, at 618-19 (1962)).
Thus, in the magesterial opinion of Page, it is clear that mistake in a will regarding one's property creates the issue of election for the affected heir. The heir may either take under all provisions of the will or none. S/he cannot claim one benefit and then disapprove of the others. In this scenario, "A" would have to keep either the real estate or the money, but not both.
Atkinson, the other "big authority" on wills, has this to say about election in a situation that I posed:
"Election is the choice of a devisee or legatee between provisions made for them by will and some inconsistent or alternative claim when there is an evident intention on the part of a testator that both should not be enjoyed." "Election is required...when the testator devises property of one beneficiary to another devisee." And, "It is not material whether the testator was in error as to his ownership or whether he knew he had no title thereto" (Atkinson on Wills, 2nd Ed. at 768).
Here we have two other facts not mentioned by Page. Election seems to apply whether or not the testator knew he had no title to the property (why is he devising if he knew he had no title?) and election seems to take place when there is an "evident intention" that both claims shouldn't be enjoyed by the devisee. In order to get to a modern statement of the issue, through considering a case, we need to try to understand what Atkinson might mean when he says that this applies whether or not the testator knew he had no title to the property. A short detour through Roman law will consider the subject of the testator's knowledge that he is bequeathing property that he does not own.
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