Melick v. Darling
Ohio Supreme Court
This is a bill in chancery, from the county of Knox. The object of the bill is to compel the defendant, Abram Darling, to relinquish his claim to the southwest quarter of section 7, township 5, and range 10, in the county of *Knox, or to surrrender his rights under the will of William Darling. At the date of the will, the testator and the defendant were tenants in common of the quarter section, the patent having issued to both.
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This is a bill in chancery, from the county of Knox. The object of the bill is to compel the defendant, Abram Darling, to relinquish his claim to the southwest quarter of section 7, township 5, and range 10, in the county of *Knox, or to surrrender his rights under the will of William Darling. At the date of the will, the testator and the defendant were tenants in common of the quarter section, the patent having issued to both. This community of interest existed at the time of the death of the testator. The testator devises: 1. To his two grandsons, Patrick M. Darling and Wm. Darling, the…
1Opinion of the CourtWood, J.
The complainants claim that the will of William Darling creates a case of election against the defendant.
*300To create a ease of election, there must be a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other. The party who is to take has a choice, but he can not enjoy the benefits of both. The doctrine of election, *says Justice Story, is borrowed from the civil law, and by if a testator may bequeath, not only his own property and that of his heir, but also the property of' other…