Wise v. Rhodes

Mr. Justice Sterrett

delivered the opinion of the court,

Both parties claim under Mary Rhodes, deceased, whose last will and testament contains the following clause, viz. : “ I give and bequeath to my sister-in-law, Sarah Wise, my house and lot of ground, with all the improvements thereon, in the town of Newry, with all the household furniture and everything therein, for which the said Sarah Wise is to keep and take good care of my dear husband Abraham Rhodes after my death — to provide for him everything necessary to make him comfortable and happy during his natural life. I also will and bequeath to my sister-in-law, Sarah Wise, all the interest of my money during the lifetime of my husband, Abraham Rhodes, so that he may be well taken care of.”

The plaintiff, in the court below, claimed the house and lot, in question, as tenant by the curtesy, alleging that he had declined to accept the provisions of his wife’s will. The defendant claimed as devisee of Mary Rhodes and contended that her. brother had acquiesced in the will, and accepted the provisions intended for his benefit, and that she had been taking good care of him and providing everything necessary to his comfort; and offered testimony tending to show that he had elected to take under the will and had enjoyed the benefit of its provisions. In view of this and other testimony her counsel requested the court to charge the jury as follows, viz. “ If Abraham Rhodes, having a full knowledge of the- property that passed by the will, consented that Sarah Wise should enter under the will, and if she did so enter by his request and consent and there discharged the duties imposed upon her by the will for a period of eight months, it was an election, on the part of Rhodes, to accept under the will and he cannot recover.”

The court declined to affirm the point, and instructed the jury that, if these facts were found, they would be strong evidence of an election on his part, but not necessarily conclusive. In this we think there was error. In the absence of qualifying circumstances, the defendant was entitled to an affirmance of the point. If the facts were found to be as therein stated, the -legal conclusion would be that he had elected to accept the provisions of the will, and having done so, he could not assert his right as tenant by the curtesy. While the facts stated are not, in express terms, notice to *404 the devisee of his election to take under the will, they are equivalent thereto, and at the same time utterly inconsistent with his claim as tenant by the curtesy. If, with a full knowledge of the property, he consented that the devisee should enter under the will, and by his request she took possession of the property devised to her, and for a period of several months discharged the duties imposed upon her by the will, it was too late for him to say that he did not acquiesce in its provisions. Under such circumstances he would be estopped from claiming otherwise than under the will.

There is nothing in any of the other assignments that calls for special notice.

Judgment reversed, and venire facias de novo awarded.