124 HALL v. HALL.—1 BLAND.

This suit has been instituted to recover a legacy given by the
late Thomas Hall to his son William W. Hall, the late plaintiff.
This Thomas Hall, in the life-time of his wife, had, besides the
late complainant, William W. HalS, seven other children; and was
then in possession of personal property to a considerable amount
in * value; and was seized of two tracts of land, as tenant
in tail male: and of other parcels of land, in fee simple.
Under which circumstances he made his will, wherein be says:
"I request my executors, hereafter named, to dispose of all my
estate, both real and personal, except some legacies, hereafter
mentioned, to the best advantage, and after having first paid all
my just debts, out of the sales of my personal property, to pay
unto my wife Isabella, one-third part of the remaining balance,
which the law gives her." And he then goes on to dispose of his
estate among his children: giving to his son William W. Hall, the
late complainant, one thousand pounds.

Soon after making this will, Thomas Hall died. Whereupon the
late plaintiff, William W. Hall, as heir in tail, entered upon, held
and disposed of the entailed estate to his own use. In conse-
quence of which, Edward Hall and William Hall, the executors of
Thomas Hall, deceased, refused to pay William W. Hall the legacy
given him by his late father; alleging, that he could not be thus
permitted to disappoint the will of their testator, by taking both
the estate tail and the legacy; since the estate tail constituted a
material part of the fund, out of which the legacy was given.
And, to shew that such was the intention of their testator, they
exhibited, as a part of their answer, a paper purporting to be a
schedrde, made by him, of all his estate, and upon which, as they
allege, he predicated his will. But this schedule has neither been
admitted nor established by proof; and therefore cannot be per-
mitted to have any bearing whatever upon this case. From the
pleadings, proofs, and agreements of the parties, it appears, that
the whole controversy has been reduced to a single question; that
is, whether William W. Hall can be put to his election to take
either the entailed estate or the legacy; or be allowed to have
both?

Wherever a testator devises a part of his estate to one, who has
a claim upon it independently of him; it is a settled principle of
equity, that the devisee shall not be allowed to disappoint the ex-
press, or obvious intention of the testator by taking both; to in-
sist upon his claim, to its full extent, and also to take all the bene-
fit bestowed upon him by the will. The devise, in such cases, is
considered, in equity, as having been made upon an implied con-
dition, that the claim shall be waived; and therefore the devisee
will be bound to make his election to abide by the will, and take
under it entirely, relinquishing his clam; or to abandon the will
altogether.