624 ADDISON v. BOWIE.

consideration of all circumstances, (k) A reference has been made
to the auditor, for 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 grandfather, has been embraced within the terms of the elec-
tion, offered to them by the will of their father, which particularly
describes the real estate, and also sufficiently specifies the negroes,
as being then a part of the 'family slaves.' I shall, therefore, in
behalf of these infants, elect that they shall take entirely under the
will of their father, the late William Bowie.

But the one-third of the negroes given by the testator Baruck,
upon his death, immediately vested in the rest of the children of
his daughter Kitty, to be distributed when they should arrive at
age, that is, in these parties, Eliza, Walter, and Kitty. This spe-
cific legacy to them was the immediate gift of a fund, with all its
produce. The testator William, as their father and natural guar-
dian, might well take and hold these negroes for them; but in
doing so he made himself accountable to them for their profits.
Consequently, the amount of those profits which had accumulated
in his hands, during his life-time, was a debt due from him to
them, it was a part of their property in his hands. But it has
been in no way disposed of by him; he has not described, or even
alluded to it as a part of that mass of property, by the special dis-
position of which he has expressly or impliedly driven them to
elect to take under or against his will. On the contrary, consider-
ing it as a debt due from him, he has, together with all others of
his debts, expressly provided for its payment.

The principles of election arise out of the fact, that a party who
has a right to one parcel of property, has another given to him,
with an express declaration, or under circumstances which leave
no room to doubt that the donor, who has disposed of both, in-
tended he should have choice of either; but that he should not be
permitted to take both of them. It is no where spoken of as
arising out of the circumstance of the testator's being a debtor to
his devisee or legatee. In this case the testator William shews
that he perfectly understood the extent of his power to put some
of his children to an election, by the manner in which he has dis-

(k) Gretton v. Haward, 1 Swan. 413.