Watson v. Watson

Gray, C. J.

The principle on which the respondent relies was thus stated by Chief Justice Shaw: “ It is now a well settled rule in equity, that, if any person shall take any beneficial interest under a will, he shall he held thereby to confirm and ratify every other part of the will, or, in other words, a man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat or in any way prevent the full effect and operation of every part of the will.” Hyde v. Baldwin, 17 Pick. 303 , 308.

In this Commonwealth, it has been decided, in accordance with the opinions of Lord Mansfield, Lord Loughborough and Lord Redesdale. that the rule hold's good at law as well as in equity. Smith v. Smith, 14 Gray, 532 . Brown v. Brown, 108 Mass. 386 . Hapgood v. Houghton, 22 Pick. 480 , 483. Doe v. Cavendish, 3 *155 Doug. 48 ,55; S. C. 4 T. R. 741, 743, note. Wilson v. Townshend, 2 Ves. Jr. 693, 696. Birmingham v. Kirwan, 2 Sch. & Lef. 444, 450. Were it not so, there were few cases in which it could have been enforced at all before the St. of 1857, c. 214, conferred upon this court full chancery jurisdiction.

But the doctrine, whether applied in practice on the common law or on the equity side of the court, depends not upon technical rules, but upon principles of equity and justice, and upon actual intention. An election made in ignorance of material facts is, of course, not binding, when no other person’s rights have been affected thereby. So if a person, though knowing the facts, has acted in misapprehension of his legal rights, and in ignorance of his obligation to make an election, no intention to elect, and consequently no election, is to be presumed. This has been settled in England by a long series of authorities, of which it is sufficient to cite a few. Pusey v. Desbouvrie, 3 P. Wms. 315. Wake v. Wake, 1 Ves. Jr. 335; S. C. 3 Bro. Ch. 255. Padbury v. Clark, 2 Macn. & Gord. 298; S. C. 2 Hall & Tw. 341. Spread v. Morgan, 11 H. L. Cas. 588, 602, 611, 615. See also Stratford v. Powell, 1 Ball & Beatty, 1; Briscoe v. Briscoe, 1 Jon. & Lat. 334; S. C. 7 Irish Eq. 123; Sweetman v. Sweetman, I. R. 2 Eq. 141. In Reed v. Dickerman, 12 Pick. 146 , 151, and in Delay v. Vinal, 1 Met. 57, 65 , the rule was so stated, and not denied, but the facts did not call for its application.

Where the law allows the probate of a will in either of two forms—in common form, ex parte, upon being presented by the executor; or in solemn form, upon the application of any person interested and notice to all others — a person who has received a legacy under a will proved in common form is permitted, on tendering back the amount to the executor, or bringing it into court, to contest the validity of the will, and compel it to be proved in solemn form. Bell v. Armstrong, 1 Add. Eccl. 365, 374, and cases cited. Hamblett v. Hamblett, 6 N. H. 333. Holt v. Rice, 54 N. H. 398.

In Hyde v. Baldwin, 17 Pick. 303 , where the holder of land under a mortgage title disposed of it by will as if it were his absolute estate, and bequeathed his personal property to the mortgagee, the latter was not allowed to maintain a bill in equity to redeem the mortgage, because, as Chief Justice Shaw *156 said, “ by accepting and retaining the bequest made him in the will, he has manifested his election to hold under the will,” and therefore, by the principle of equity already stated, “ would be precluded from setting up a legal or equitable claim of his own, the assertion of which would defeat a provision of that will, under which he claims and has received, and now holds and intends to hold, a beneficial bequest.”

In Smith v. Smith, 14 Gray, 532 , in which a testator, who had conveyed lands by deed to one person, devised part of the same lands to another, and the rest thereof, with other land, to the grantee; and it was held that the latter could not, when sued at law by the first devisee, set up in opposition to the will a title under the deed; it appeared by the defendant’s own admissions, and by the verdict of the jury under the instructions given them, that he, with a full opportunity to judge and full knowledge of the nature of the estate and its situation, had accepted and was determined to hold all the estate devised to him by the will, and had acted upon that purpose, so that it was established that he had elected to take the estate devised to him; and he intended to hold under the deed, only if the law allowed him to claim under both.

In Brown v. Brown, 108 Mass. 386 , the point adjudged was, that in order to prove an election between a life estate previously existing and a provision made by will, it was necessary to show an intelligent acceptance of the latter, and that there would be no intelligent acceptance thereof if the person accepting had not mental capacity to understand what the life estate was, or what the provision was, and to consider or compare to some extent the advantages of the two; and the further ruling of the court below, that it was not necessary that there should have been a knowledge that the acceptance of the- one was a renouncing of the other, does not appear to have been objected to at the trial, and, being in favor of the party against whom the verdict was returned, was not and could not be drawn int o judgment in this court.

In the present case, the testator and the three petitioners being the owners as tenants in common of the land of which partition is sought, -the testator devised ten acres thereof by metes and bounds to the respondent. This devise is, of course, *157 ineffectual as against the cotenants, unless they have confirmed it. Peabody v. Minot, 24 Pick. 329 . Sullivan v. Holmes, 8 Cush. 252 .

The testator also made bequests to each of the petitioners. To the petitioner James he gave his interest in other two acres and twenty rods of the same estate, and in another lot of land, as well as certain chattels'; to the petitioner Albert, an estate for life, with remainder to his son in fee, in all the testator’s real estate not included in the devises to the respondent and to James, and certain chattels absolutely; and to the petitioner Edward, a legacy of fifty dollars. All the petitioners received these legacies, and James entered upon the lands devised to him, with knowledge of the provisions of the will, but in ignorance of the rule of law stated in Hyde v. Baldwin .

Upon being informed of that rule, James and Albert took no steps to restore to the executor the personal property which they had received, or otherwise to renounce their claims under the will; but, two or three months afterwards, submitted their right to maintain this petition to judgment upon these facts. So far as they are concerned, the case is not distinguishable from Hyde v. Baldwin and Smith v. Smith , and there is no error in the judgment of the Superior Court. , The validity of that judgment upon the case so submitted is not affected by their haying asserted that they did not waive the right hereafter to elect.

But as to Edward the case stands differently. Immediately upon being informed of the rule of law, little more than a year after the probate of the will, and before the executor had settled any account in the Probate Court, or the position of any other person had been changed, he returned his legacy to the executor, and gave him notice that he elected not to take it. He cannot therefore be held to have made such an election as should deprive him of the right under his independent title to partition of the whole estate, not excepting the parcel claimed by the respondent. Judgment accordingly.