APPROBATE and REPROBATE, This is a technical expression in the law of Scotland, which signifies one of those rules of justice which commend themselves by their reasonable logic, and which are to be found in all enlightened systems of jurispru dence. It simply means tbat no one can be permitted to A. and R.—that is, to accept and reject the same deed or instrument. Thus, if a will or Settlemeat, purporting to dispose of real and personal property, all of which it directs to be converted into money, and in that form either to be equally divided or apportioned among the testator's children, consisting of a son or sons, and daughters, should, owing to some flaw or material defect, be invalid for the conveyance of the real estate, which, accordingly, by the operation of the law of descent, becomes the exclusive property of the eldest son as his father's heir, the law does not permit the latter to enjoy such estate, and at the same time to take benefit under the will in other respects, for this would be simultaneously to accept and reject the same instrument: he must elect between the two alternatives, and either avail himself entirely of his rights at law, as heir, or claim his share of the whole estate according to the testator's manifest intention—he cannot do both. Other illustra tions might be given, showing distinctions too nice perhaps for popular information. The analogous doctrine in the law of England is called election (q.v.). In one case
decided by the house of lords in 1819, the lord chancellor Eldon treated the rule in the Scotch and English legal systems as identical, observing that it was equally settled in Scotland as in England that no person can accept and reject the same instrument; and lie puts the case of a testator giving his estate to A., but also giving the estate to which A. would otherwise have been entitled, to B.; in that case his lordship stated that courts of equity hold it to be against conscience that A. should take the estate bequeathed to him, and at the same time refuse to effectuate the implied condition contained in the will of the testator. The court will not permit him to take that which cannot be his but by virtue of the disposition of the will, and at the same time to keep what, by the same will, is given, or intended to be given, to another person. It is contrary to the estab lished principles of equity that he should enjoy the benefit while he rejects the condition of the gift.
It is chiefly in the case of wills and other testamentary dispositions that this legal doctrine most frequently arises in practice, although there can be no question that both in the English and Scotch systems of law it extends to all other writings, deeds, and instruments.