The Equitable Doctrine of Election
Bill Long 12/3/05
The Relevance of Roman Law
Ever since the 19th century, commentators have laid out the equitable doctrine of election in the context of a cryptic passage in Justinian's Institutes which I shall now discuss. My thesis is that the scholarship on this issue is mistaken, and that actually the Roman law analogy, posited by Story in 1853 and picked up by court and scholar alike in the 20th century is incorrect (Story, Equity Jurisprudence (1853) at Sec. 1078).
Here is how the argument goes. We have a problem with the equitable doctrine of election today (which I discuss below) because of the notion bequeathed to us through the civil law tradition that a person could legitimately devise property he didn't own. This, in some (unspecified) way, forms the background for our modern "problem" of devising property one doesn't own, which triggers the doctrine of election. The scholar on whom all seem to rely in making this claim is Neville Crago, through his 1990 article "Mistakes in Wills and Election in Equity" (106 L Quart R 487 (1990)). He quotes Justinian's Institutes II.20.4 (misidentified in his fn. 20):
"4 A legacy may be given not only of things belonging to the testator or heir, but also of things belonging to a third person, the heir being bound by the will to buy and deliver them to the legatee, or to give him their value if the owner is unwilling to sell them. If the thing given be one of those of which private ownership is impossible, such, for instance, as the Campus Martius, a basilica, a church, or a thing devoted to public use, not even its value can be claimed, for the legacy is void. In saying that a thing belonging to a third person may be given as a legacy we must be understood to mean that this may be done if the deceased knew that it belonged to a third person, and not if he was ignorant of this: for perhaps he would never have given the legacy if he had known that the thing belonged neither to him nor to the heir, and there is a rescript of the Emperor Pius to this effect. It is also the better opinion that the plaintiff, that is the legatee, must prove that the deceased knew he was giving as a legacy a thing which was not his own, rather than that the heir must prove the contradictory: for the general rule of law is that the burden of proof lies on the plaintiff" (Moyle translation).
The Meaning of the Text
Here is what the passage seems to be saying. (1) Under Roman law it was legitimate to devise property not one's own and the legatee (devisee) had two choices. He could either require the heir to purchase the property and give it to him or could take money as a substitute, if the true owner was unwilling to sell. Thus, a choice (election?) of sorts existed for the legatee. (2) Legacies of things that no one could own, such as public buildings or property, are void. (3) It seems like it would only be a valid legacy if the testator knew that he didn't own the property, "for perhaps he would never have given the legacy if he had known that the thing belonged neither to him nor to the heir." (4) In order to seemingly get the benefit of this provision of the will, the legatee must prove the deceased knew he was giving something not his own. The burden of proof, therefore, lay upon him.
It is a confusing passage for a number of reasons. First, is the unclarity of the role of the heir. The first sentence suggests that the testator can give things not only belonging to himself or the heir, but things belonging to a third party. Why isn't the devising of things belonging to the heir "things belonging to a third party?" Second, it says that the heir is bound to buy and deliver the property belonging to someone else to the legatee. What does this mean? Is the heir assumed to be the administrator/executor of the estate? If so, from where will he get the money to buy the property bequeathed? Is he permitted to cash in the other estate assets to do so? Third, what if the legatee wants the money regardless of whether the owner of the land wants to sell? The text cited doesn't deal with that possibility. Fourth, this passage only seems to apply if the testator knew he was granting property not his own. What could possibly be the situation envisioned by this passage? And, why doesn't it relate to unintentional mistaken devises of property in addition to intentional mistakes? Fifth, what is the result if the plaintiff is unable to show that the testator knowingly bequeathed property not his? Does that make the transaction void? Modern commentators seem to say so, but I don't see that said in the text.
Concluding on Justinian
There seems to be no reason for considering Justinian's Institutes in any way related to the problem that the English chancery courts were trying to deal with. They were dealing with unintentional mistakes, though I suppose an intentional one would also have fallen under their purview, but the entire purpose of the Roman law seems to relate to intentional transfers of property not one's own. The English equity courts were also interested in developing a principle of drafter's intention or equitable distribution that would deal with the practical issue that confronted them. In other words, they were interested in "equalizing" the distributions as much as possible, since that would most "naturally" be the intent of the testator. The equity courts were notorious for implying all kinds of motivations in testator's minds (one of the reasons that the common law, as well as the system of equity was attacked so ruthlessly by Jeremy Bentham around 1800).
So, let's leave the Romans aside for now and come to the modern problem of the equitable doctrine of election by giving a few examples, and presenting the facts of a recent case.
Copyright © 2004-2008 William R.Long