134 HALL v. HALL.

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 circum-
stances he made his will, wherein he says : "I request my execu-
tors, 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 con-
sequence 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
schedule, 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 permitted
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
express, or obvious intention of the testator by taking both,; to
insist upon his claim, to its full extent, and also to take all the
benefit bestowed upon him by the will. The devise, in such cases,
is considered, in equity, as having been made upon an implied
condition, 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 claim; or to abandon the will
altogether.