75 Tenn. 580 | Tenn. | 1881
delivered the opinion of the court.
Early in the year 1877, Uriel Johnson departed this life, having previously made and published a last will, which was, at the April term, 1877, of the county
The bill insists that defendant Elizabeth is estopped to contest the will by having received the greater part
The defendants demurred to the bill. The chancellor sustained the demurrer, and complainants appealed.
The bill itself shows that in the event the will is set aside, the defendant Elizabeth, as the widow of the testator, would, under the circumstances of the par
To estop a party from the assertion of legal rights, it must, as a general rule, appear that the party was apprised of his rights, and intentionally by acts, silence or acquiescence, influenced the conduct of the person setting up the estoppel to his injury. For, otherwise there could be no just inference of actual or constructive fraud, upon which the doctrine of estoppel in pais rests: Morris v. Moore, 11 Hum., 433. In the case before us, the defendant Elizabeth received from the executors the greater part of her share of the estate under the will, and was present at the sale of the land by the executors, and made no objections thereto. But the bill does not aver that she was at that time aware of the facts on which she is now contesting the
It has been held by this court that the dissent of the widow to the husband’s will, and having had a year’s support assigned her, will not estop her from contesting the will: Miller v. Miller, 5 Heis., 724. And it has been also held by the supreme court of one of our sister States, that the election of the widow to take under the will does not estop her from contesting it, for the obvious reason that if there is no valid will, there is no valid election, and, of course, no estoppel: Carder v. Fayette Co., 11 Ohio St., 358.
There is no error in the chancellor’s decree, and it is affirmed with costs.