Determination of ownership required prior to election.

- A plaintiff would not be compelled to elect between a legacy and a "mere claim" to property until after there has been an adjudication of the question whether or not he is in fact the owner of an interest in the property disposed of by the will, and then only in the event this issue is determined in his favor; since, if he were first compelled to elect, and he should for any reason fail in the trial to establish his claim, there would be no defeated or disappointed legatees to compensate, but, on the contrary, the other legatees would get the very property he claimed. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937).

Cited in Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505, 170 S.E. 504 (1933); State Banking Co. v. Hinton, 178 Ga. 68, 172 S.E. 42 (1933); Head v. Scruggs, 178 Ga. 324, 173 S.E. 113 (1934); Brown v. Smith, 50 Ga. App. 332, 178 S.E. 180 (1935); Irwin v. Willis, 202 Ga. 463, 43 S.E.2d 691 (1947).

Election is choice between proffered benefit and retention of own property.

- An "election" in equity is a choice which a person is compelled to make between the acceptance of a benefit under an instrument and the retention of his own property which is attempted to be disposed of by that instrument. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937).

The doctrine of election as applied to wills, against one claiming inconsistent benefits, arises when the testator "has attempted to give property not his own, and has given a benefit to a person to whom that property belongs," in which case "the devisee or legatee shall elect either to take under or against the will." It is applicable where the instrument confers upon one a benefit while attempting to dispose of his own property, in which event such person must elect whether to accept the benefit under the instrument or retain his property. However, this doctrine does not apply where testamentary disposition describes no specific property so as to identify it with that of the claimant, but describes the property only generally, as "all my real and personal property and all property of every kind and character owned by me at my death," since the testator would be presumed to have intended to bequeath only what he actually owned and could lawfully dispose of. First Nat'l Bank & Trust Co. v. Roberts, 187 Ga. 472, 1 S.E.2d 12 (1939).

A case of election only arises when a person is entitled to one of two benefits to each of which he has the legal title, and an election can exist only where there is a choice between two or more inconsistent remedies actually existing at the time of election. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937).

The choice is compulsory between two inconsistent rights or claims where there is a clear intention of the testator that the beneficiary shall not enjoy both. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937).

Where a testator, after devising property owned by him to one beneficiary, assumes to devise to another property belonging to the first devisee, the devisee of the property owned by the testator, if he accepts the devise with knowledge of the facts, is precluded from asserting a claim to his own property devised to the other beneficiary. The beneficiary must elect between keeping his own and taking what is given by the will. Rieves v. Smith, 184 Ga. 657, 192 S.E. 372 (1937).

The fact that a sheriff who had collected taxes which were unaccounted for, had given a bond with a surety, conditioned on the faithful performance of his duties, would not create a case for compulsory election, so as to require the county officials claiming the tax moneys to relinquish, for the benefit of a creditor bank, their direct claim of priority from the funds of the decedent in the registry of the court, and to proceed, with delay and additional expense, by a suit on the bond. Savannah Bank & Trust Co. v. Meldrim, 195 Ga. 765, 25 S.E.2d 567 (1943).

C.J.S.

- 28 C.J.S., Election of Remedies, § 2.

ALR.

- A provision in land contract for pecuniary forfeiture or penalty by a party is default as affecting the right of the other party to specific performance, 32 A.L.R. 584, 98 A.L.R. 877.

Election of remedies: inconsistency of action for damages for fraud and suit to establish constructive trust based on same transaction, 43 A.L.R. 177.

Attempt to reform contract as election of remedies precluding action to enforce contract as written or vice versa, 49 A.L.R. 1513.

Revocation of election to take under or contrary to will, 81 A.L.R. 740, 71 A.L.R.2d 942.

Election of remedies by owner against public authority or corporation having power of eminent domain which unauthorizedly enters land without instituting valid eminent domain proceedings, 101 A.L.R. 373.

What amounts to widow's election as between antenuptial or postnuptial settlement and husband's will or her rights under statute of descent and distribution, or attack by her upon such settlement, 117 A.L.R. 1001.

Judgment for debt without foreclosure of mortgage securing it as affecting mortgage, or right to foreclose the same, where no execution or attachment is levied under the judgment, 121 A.L.R. 917.

Bank depositor's act in seeking restitution from third person to whom, or for benefit of whom, the bank has paid out the deposit, as election of remedy precluding action against bank, 144 A.L.R. 1440.

Revocation or withdrawal of election to take under or against will, 71 A.L.R.2d 942.

Notice of rescission as irrevocable election when other party refuses to assent thereto, 1 A.L.R.2d 1084.

Conclusive election of remedies as predicated on commencement of action, or its prosecution short of judgment on the merits, 6 A.L.R.2d 10.

Election to take against will as extinguishing power of appointment, 38 A.L.R.2d 977.

Factors considered in making election for incompetent to take under or against will, 3 A.L.R.3d 6.

Time within which election must be made for incompetent to take under or against will, 3 A.L.R.3d 119.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another, 69 A.L.R.3d 1081.