ADDISON v. BOWIE. 623

then, as there could have been no choice, the power would have
been thus virtually extinguished. Such only child could not have
been put to an election under such a testamentary provision, and
the right to put to an election, must have rested upon general prin-
ciples, independently of that power. There being in fact, how-
ever, a plurality of such children, no exercise of the power which
merely gave the whole of the lands derived from the testator Ba-
ruck) to all or any of those children, could be questioned by any
one of them, in opposition to the others, or in derogation of the
will of their father; and therefore, the testator William, 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 son Walter should attain his full 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, &e. 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 incumbering them and their profits
with a habitation right, and the payment of the debts 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 beyond
a mere execution of the power given by the will of the testator
Baruck, they do most manifestly put the testator William's chil-
dren, by his wife Kitty, to an election, to take under or in oppo-
sition 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