COMMON LAW 251
(i) Election against the instrument is allowed in Equity only where the gift is made upon an implied condition that the donee shall part with his own property. Where the gift is made upon an express condition that the donee shall part with his own property. Equity will not allow Election against the instrument. The donee would take nothing if he refused to comply with the condition.
(ii) No question of compensation arises when a person elects under the instrument.
(iii) Election against the instrument where it is permitted—does not involve a forfeiture of the whole of the legacy but only of a part sufficient for compensation.
IV. C ONDITIONS FOR THE APPLICATION OF THE DOCTRINE
(1) The donor must have given the property of the donee to a third person.
(2) The donor must have by the same instrument given his own property to the donee. To this the following must be added.
(3) The property given to the donee must be such that it can be used to compensate the third person.
(4) The property of the donee must be alienable.
Note. —The donor will be deemed to be disposing of such interest as he may have in the property and no more.
V . S OME CASES WHICH MUST BE DISTINGUISHED FROM CASES OF
ELECTION
(1) Cases of two gifts to one person
In such cases the doctrine of election does not apply. They are cases of gifts of his own property.
Here the donee may accept the one that is beneficial and reject the one that is onerous —unless the intention of the donor was that the acceptance of the onerous was a condition for the grant of the beneficial.
- Case of two properties in one gift.—One beneficial, the other onerous.
The beneficiary must take both or neither unless an intention appears to allow him to take the one without the other.