ADDISON v. BOWIE.—2 BLAND. 591

the testator Barack, to all or any of those children, could be ques-
tioned by any one of them, in opposition to the others, or in dero-
gation of the will of their father; and therefore, the, testator Wil-
liam, by no exercise of his power, which went no further than to
dispose of the land to which it applied, among those children, could
leave them any right of election.

But it will be seen by the comparative view of the actual opera-
tion of these two testamentary acts, as exhibited by the report of
the auditor, that the testator William, has devised to his son and
daughter, Walter and Kitty, other lands, in addition to portions
of that derived from their grandfather, and has also bequeathed to
each of them, a large amount of personal property; that the tes-
tator William speaks of the land derived from the testator Baruck,
as his, the testator William's, dwelling plantation, and then gives
to his wife and daughters, and her son, a home at his mansion
house, until his sou Walter should attain his fall age; and directed
that all the property be kept together, and worked with the family
slaves; and that the profits, after the payment of his debts, be
divided, &c. Here, so far as the donations of other property, not
derived from the testator Baruck, and also of a home, and the
charge for payment of debts, affects the lands and slaves held
under the testator Baruck, by iucumbering them and their profits
with a habitation right, and the payment of the cletbs of the tes-
tator William, or by withholding them temporarily from his chil-
dren by his wife Kitty, are directly at variance with, and go be-
yond a mere execution of the power given by the will of the tes-
tator Baruck, they do most manifestly put the testator William's
children, by his wife Kitty, to an election, to take under, or in op-
position to his will. And those of the testator William's children,
by his wife Kitty, who are now of full age, have all of them elected
to take under their father's will accordingly.

With regard to the infants who have been also put to their elec-
tion, I am of opinion, that in the situation of this case, the Court
may and ought to elect for them; and that in doing so, it must be
guided altogether with a view to the benefit of the infants, on a
* consideration of all circumstances. Gretton v. Howard, 1
Swan. 413. A reference has been made to the auditor, for 624

the purpose of collecting information upon this subject; and the
facts and statements reported by him, have not been questioned.
From those statements, there can be no doubt, that it will be
greatly for the benefit of the infants to take under the will of their
father", in so far as the property given to them by their grand-
father, has been embraced within the terms of the election, offered
to them by the will of their father, which particularly describee
the real estate, and also sufficiently specifies the negroes as being
then a part of the "family slaves." I shall, therefore, in behalf of