Wake v Wake
| Jurisdiction | England & Wales |
| Judgment Date | 31 May 1791 |
| Date | 31 May 1791 |
| Court | High Court of Chancery |
English Reports Citation: 30 E.R. 372
HIGH COURT OF CHANCERY
[335] wake v. wake. May 31st, 1791. Butter, J., for the Lord Chancellor.-3 Bro. C. C. 255.--Widow put to election to take under the will of her husband or dower notwithstanding great disproportion. Keceipt of a legacy and annuity under the will for three years did not prevent her right of election, being presumed not to have acted with full knowledge, which would bind her. Testator bequeathed to his wife £100 to be paid out of his personal estate within six months after his death ò and after some particular dispositions gave all his estate 1VES. JUN. 336. WAKE V. WAKE 373 and effects whatsoever upon trust, subject to an annuity of £35 to his wife for life, for his son by a former wife, whom he made residuary legatee. The widow received her legacy, and also the annuity for three years ; and then brought the bill, claiming both the interests under the will and her dower, which was about £80 a-year, the real estate being admitted to be about £240 a-year. The trustees had let the son into possession of the real estate upon attaining 21 ; as was directed by the will. Butter, J. Must she not elect \ Mr. Mif.ford, for Plaintiff, said, that it was so like the case of Jones v. Cottier, Amb. 730, that he found it difficult to argue it, unless upon the ground of the great disproportion. Butter, J. But even that will not do. She must elect. Solicitor General [Scott] for Defendant. She cannot now elect. For Plaintiff. That is contrary to all the cases. In Boynton v. Boynton (1 Bro. C. C. 445) the wife had received it; and the Master of the Bolls said, that should not prejudice her. Pusey v. Desbouverie, 1 P. Will. 316. £10,000 was bequeathed to a person entitled under the custom of London to a share of her father's fortune : she had released all her claim; and brought a bill on account of the disproportion; [336] and she was held not to be bound till after the accounts taken. Lord Beaulieu v. Lord Cardigan, Amb. 533, where the devisee was considered as entitled to elect all his life. If he elected to take under the will, he was to make a conveyance by way of condition : but, as he did not, his representatives were held to be entitled to elect. In Hender v. Hose, 3 P. Will. 125, n. the same doctrine was held ; that parties are not to be taken to have made election without complete knowledge of their rights; and, that in no case shall a child be obliged to elect till after the accounts...
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