Election, in English law, the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Thus a testator died seized of property in fee simple and in fee tail—he had two daughters, and devised the fee simple property to one and the entailed property to the other; the first one claimed to have her share of the entailed property as coparcener and also to retain the benefit she took under the will. It was held that she was put to her election whether she would take under the will and renounce her claim to the entailed property or take against the will, in which case she must renounce the benefits she took under the will in so far as was necessary to compensate her sister. As the essence of the doctrine is compensation, a person electing against a document does not lose all his rights under it, but the court will sequester so much only of the benefit intended for him as will compensate the persons disappointed by his election. For the same reason it is necessary that there should be a free and disposable fund passing by the instrument from which compensation can be made in the event of election against the will. If, therefore, a man having a special power of appointment appoint the fund equally between two persons, one being an object of the power and the other not an object, no question of election arises, but the appointment to the person not an object is bad.
Election, though generally arising in cases of wills, may also arise in the case of a deed. There is, however, a distinction to be observed. In the case of a will a clear intention on the part of the testator that he meant to dispose of property not his own must be shown, and parol evidence is not admissible as to this. In the case of a deed, however, no such intention need be shown, for if a deed confers a benefit and imposes a liability on the same person he cannot be allowed to accept the one and reject the other, but this must be distinguished from cases where two separate gifts are given to a person, one beneficial and the other onerous. In such a case no question of election arises and he may take the one and reject the other, unless, indeed, there are words used which make the one conditional on the acceptance of the other.
Election is either express, e.g. by deed, or implied; in the latter case it is often a question of considerable difficulty whether there has in fact been an election or not; each case must depend upon the particular circumstances, but quite generally it may be said that the person who has elected must have been capable of electing, aware of the existence of the doctrine of election, and have had the opportunity of satisfying himself of the relative value of the properties between which he has elected. In the case of infants the court will sometimes elect after an inquiry as to which course is the most advantageous, or if there is no immediate urgency, will allow the matter to stand over till the infant attains his majority. In the cases of married women and lunatics the courts will exercise the right for them. It sometimes happens that the parties have so dealt with the property that it would be inequitable to disturb it; in such cases the court will not interfere in order to allow of election.
