delivered the opinion of the court:
Michael Stonebraker died testate in 1859, leaving his wife, Catherine Stonebraker, and his six children, surviving him. He died seized of 709.78 acres of land in Ogle county and a considerable amount of personal property. He residеd upon one tract of this land containing 160 acres and occupied it as his homestead at the time of his death. Adjoining this tract, and constituting a part of what was known as the home farm, were 80 acres belonging tо his wife, Catherine Stonebraker, which had been devised to her by her father. Under the law as it existed at that time he held an estate by the curtesy in this 8o-acre tract. The first clause of the will of Michael Stonebrakеr is as follows:
"First—I give and bequeath to my wife, Catherine Stonebraker, the home farm on which we now reside, during her natural life, described as follows, [describing 240 acres, including the 80 acres owned by Catherine Stonebraker,] and also $3000 in money, and personal property to be selected by her as she may wish, and paid to her by the executors of this will and to be accepted and received by her in lieu of dower, and after hеr death to be equally divided between my heirs, share and share alike, to my children, each to have an equal share of the whole amount.!’
The will appointed his wife and his brother as executors. They qualified, administered upon the estate and were finally discharged. Appraisers fixed the amount of the widow’s award at $692, which she waived and did not accept. She did not renounce the will, but she continued to live in the homestead and remained in possession of that tract, together with the 80 acres adjoining, until the time of her death, in 1910. About a year after the death of Michael Stonebraker, the widow, Catherine, married John Nye, and appellant, Ulysses C. Nye, is a child of this union. The children of Michael Stonebraker always treated the whole of the 240 acres constituting the home farm as a part of the lands which had been devised to them. As the result of various conveyances among them, the undivided one-sixth of the 240 acres was conveyed to Mary E. Bell, the appellee and one of the children, and the undivided two-thirds thereof to her husband. In 1909, about one year before her death, Catherine Nye conveyed the 80 acres which had been devised to her by her father, to her son, Ulysses C. Nye. Upon her death, in the following-year, this bill was filed in the circuit court of Ogle county by Mary E. Bell and her husband to quiet the title to the 80-acre tract and to remove as a cloud thereon the deed from Mrs. Nye to appellant. During the progress of the cause, Thomas J. Bell, the husband of appеllee, died testate, devising all of his property to appellee. The suit thereafter proceeded in her name, as sole complainant. The master found the issues for appellant and reported recommending that the bill be dismissed for want of equity. The court sustained exceptions to the master’s report, and decreed that appellee is seized in fee simple of said land and that appellant has no right, title or interest in the same. From that decree this appeal has been perfected.
The first question presented for our consideration by this record is whether the widow of Michael Stonеbraker was required to elect, in equity, between taking under the will of her husband and relinquishing the title to her own land. In the view we take the determination of this question will dispose of the whole case.
Appellant urges, amоng other reasons, that the doctrine of equitable election does not apply because it does not appear from the will that it was the clear and unmistakable intention of the testator to dispose of the lands belonging to the widow. There is some basis for this contention, but as we are of the opinion that the doctrine of election does not apply in this case in any event, we will treat the will as thоugh the intention of the testator to devise the widow’s lands was clearly expressed.
In Carper v. Crowl,
The question of equitable election involved in Carper v. Crowl, supra, is so nearly identical with the question here that what was said in that cаse is clearly applicable here. We there said: “It is apparent from this record that under the will the widow was not a beneficiary of any fund out of which compensation could be made. By the will the support of the daughter, Maria A. Crowl, and a legacy of $3000 for her benefit, were made a charge upon the homestead devised to the wife for life. By law the widow was entitled to dower in the whole of the 766^ acrеs of land of which her husband died seized. It is shown, as we think, that the land of the husband devised to her for life was not an average one-third of the land owned by the testator, so that it is clear that by the devise of the land she took nothing in excess of her dower. Again, it seems clear from the evidence that, excluding the widow’s award, as must be done, she received under the will less than one-third of the personal estate after the payment of debts, which amount she would have been entitled to under the statute. (Gross’ Stat. 1869, chap. 34.) The provision made by the will was therefore in lieu of, and not in excess of, her rights in her husband’s estate as widow, and she took the same, not as a beneficiary under the will, but as a purchaser. In Blatchford v. Newberry,
Appellee insists that the acts and declаrations of her mother, Mrs. Nye, or her silence when it was her duty to speak, will estop her and her assigns from claiming this land, and particularly the five-sixths part thereof which it is claimed appellee acquired as аn innocent purchaser for value. One of the grounds urged for such estoppel is, that Mrs. Nye and her co-executor attempted to inventory her land as the property of the testator. A certain 80 acres were inventoried by the executors as the property of the testator and as having been willed to him by James Coffman, the father of Mrs. Nye. The land was misdescribed if it was meant to refer to this tract, and no onе can tell with certainty whether it was intended to inventory this particular tract. An examination of the Coffman will would disclose the fact that the land here involved was devised to the daughter and not to her husband, and this statement of the source of the title afforded notice which it would be the duty of anyone dealing with the land to follow up. Nothing is disclosed by the evidence which would estop Catherine Nye from claiming title to this land. She was in possession of it from the timé of the death of Michael Stonebralcer until she conveyed it to appellant. It is not shown that appellee or her husband were ever deceived by Mrs. Nye as to the' cоndition of the title. It appears’ from the evidence that when appellee purchased the one-sixth interest in this land from her sister she made no examination of the record to ascertain the cоndition of the title and was not influenced by anything said or done by her mother. The husband of appellee also apparently" purchased the interests acquired by him without making any examination of the records. Appellee does not occupy the position of an innocent purchaser, but is chargeable with all that an examination of the records would have disclosed as to the condition of the title to this land.
The only election made by Mrs. Nye, and the only one required of her, was the election required by the statute. Her title to the 80 acres in question was not affected by her acceptance of the рrovisions made for her-in the will. That title remained in her to the same extent as if she had formally renounced the provisions of the will for her benefit, and by her deed it passed to appellant.
The decree of the circuit court is reversed and the cause remanded, with directions to dismiss the bill for want of equity. directions.
Reversed and remanded, with directions.