delivered the opinion of the Cdurt.
This appeal is taken from an order of the Orphans’ Court of Baltimore County, transmitting issues to a Court of Law caveating the will of James Boyce, late of said county.
Two questions are presented by this appeal:
First. — Had the Orphans’ Court, under the circumstances of this case, any authority to order the transmission of the particidar issues prayed for ? and
Second. — Were not the appellees, by their antecedent conduct, estopped from contesting the validity of the will in controversy?
It is not contended by the appellants that the Orphans’ ■Court had no authority to send to a Court of Law for trial, issues which contest the validity, either of the will and codicil in their entirety, or separate and distinct provisions thereof. But it is contended that there is no authority in law justifying the Orphans’ Court in transmitting to a Court of Law an issue or issues which assail as fraudulent and void .certain parts of a will and codicil, which are not in them.selves distinct and severable from the other parts.
The particulars of this controversy are, that James Boyce,
On the 31st of March, 1892, the said Catharine Harrison, by her husband as next friend, filed her petition in the same cause, claiming that she was entitled under said will to the income on the one-sixth of the residue of said estate after paying certain legacies in said will provided, and praying a monthly allowance under the provisions of said will for maintenance pending the settlement of said estate. In the answer to said petition it was claimed that the petitioner had received a large sum of money from her father during his lifetime, amounting to not less than thirty-eight thousand dollars; that the debts, incumbrances and legacies would consume the greater part of the estate, and that her income, if any, from said residue, was then incapable of ascertainment. The petition and answer were heard on the proofs offered, and the petition dismissed. On March 12th,
“ It is my will that all the rest, residue and remainder of my estate, real and personal, situate in the State of Maryland and in other States, shall be divided by my executors into six parts [and all the sums which have been charged by me, or by my authority, on any of my books of account or memoranda, against any of my children, or which may appear on memoranda made by me, and not yet entered into my books of accotmt, shall be treated as parts of my estate, and the charges against each child shall be divided and treated as parts of the share of my estate set apart to such child, or to trustees, to her andhefisstie), it being my purpose, as far as practicable, thereby to promote equality in the benefits which my children have derived and shall derive from my estate.”
That which is included within brackets and italicized is the part of said clause which it is claimed by the appellees is fraudulent and void, as having been procured by the practice of undue influence upon the testator in the execution of the same.
It is also contended that the last line of the codicil, which reads, “ and I confirm my last will and testament in other respects,” was procured to be executed by the testator by the practice upon him of fraud.
We come now to the consideration of the first question arising on this appeal.
The question to be considered and disposed of on this appeal has not received the approval of any of the English or American Courts, so far as we are informed, nor do we think it ought to receive the approval of this Court. From the facts already stated, it is apparent that the caveat filed in the Orphans’ Court of Baltimore County does not seek to strike down the entire will of the testator, but is an effort to carve out of the residuary clause of the will only such parts thereof as conflict with the interests of the appellees. It is clearly manifest that the testator, by the use of the language against which the caveat is filed, sought to promote equality in the final disposition of his estate. This language does not present a proposition distinct and sever-able, but it is so interwoven with the general scope and purpose of the leading provisions of the will, that to eviscerate from the residuary clause the suggestive language contained therein, would be subversive of the objects which the testator has sought to make effective. On this point the observations of Sir James Hannen, in Harter v. Harter, L. R. 3 P. & D. 21, may be referred to: “ Such a mode of deal
The caveat to the codicil would seem to follow as the natural concomitant of the assault on the objectionable features of the residuary clause, as the language of the codicil is in direct terms a republication of the will. In what we have said, we have dealt sufficiently with the subject as not to require further comment.
With respect to the question of estoppel, which is the second question raised by the appeal, we think, in the present state of the record, the appellees have by their conduct denied themselves the right to institute these proceedings. “A party cannot, either in the course of litigation or in dealings in pais, 'occupy inconsistent positions ; and where one has an election between several inconsistent courses of action, he will be confined to that which he first adopts. Any decisive act of the party done with knowledge of his rights and of the facts, determines his election and works an estoppel.” * * * “It is an old rule of equity, that one who has taken a beneficial interest under a will, is thereby held to have confirmed and ratified every other part of the will, and he will not be permitted to set up any
Order reversed and petition dismissed with costs.