The action was one to partition real estate. Willard Ralston claimed to own the entire estate, was defeated, and appeals. The question presented is whether he lost his right of appeal by acceptance of benefits under the challenged judgment.
The facts are substantially these: Robert Ralston died in 1912, intestate, leaving as his survivors, his widow, Hannah Ralston, and five children, Willard, Carhartt, R. L., Emily and Mary. Prior to his death he had deeded 160 acres of land to his children, Carhartt, Emily and R. L., taking from the first two a release and relinquishment of all interest they might have in his estate. The daughter Emily paid to her father the sum of $500 in ordеr to equalize her share in the distribution of the estate. The land deeded to the son, R. L., was valued at approximately $8,500, but the father failed to take from him any release or relinquishment of his right to share as an heir in the estate. The widow died in January, 1926, intestate, leaving the five children above named surviving her. On March 10, 1926, the daughter Mary, who was unmarried, died, leaving as her heirs the four rеmaining brothers and sisters. R. L. Ralston filed this action, making his brothers and sisters defendants. Emily (Davis) answered, stating that-her two brothers and herself hаd received certain lands from their father, and that they should not, therefore, participate further in the distribution of his estate, but alleged further that her mother inherited one-half of his estate, and Mary and Willard each one-fourth of the father’s еstate, and that of the mother’s one-half each of the five children should inherit an equal share. Willard answered stating substantiаlly that it was the father’s intention that each of his children should share equally in his estate; that three-of the children had received their shares, although no release was taken from the one; that the fourth had died, and that he, therefore, was entitlеd to the entire estate remaining.
The court found that the deeds to Emily and Carhartt were given in consideration of the relеases and relinquishments signed by them and that the deed to R. L. was to be considered as an advancement; that on the 'death of the father the estate passed to the widow, his son Willard and his daughter Mary; that the widow received eighteen-thirtieths of the estate, and the two children six-thirtieths
After judgment and before lodging his appeаl in this court, Willard elected to take some of the property at its appraised value. Later he purchasеd two tracts of the land, and his attorneys were paid their fees from the allowance of his distributive share. Thereupon, the appellees moved to dismiss his appeal on the ground that a litigant may not contest the validity of a judgment where hе has accepted substantial benefits thereof. The appellant, now represented by other attorneys, cоntends that he “has taken nothing, received nothing and benefited in no way by his acceptance, except to an еxtent much less than it is admitted by all parties he should be benefited,” and “that none of the acts set up in the motions to dismiss have substantially affected either the rights of the appellant or the rights of any of the appellees.” Numerous authorities аre cited in support of the contention (29 L. R. A., n. s., 30 et seq.), which, however, are not supported by the general rule, which is to the effеct that a litigant who complains of a judgment must be consistent in his conduct with reference to it. If he recognizes its validity, he will nоt be heard to say that it is invalid. He cannot on appeal contest its validity where he has accepted the benefits or a substantial part of the benefits of the challenged judgment. (Cronkhite v. Evans, etc., Co.,
The appeal is dismissed.