| Mo. | Feb 10, 1904
— This is an action under the statute to contest the will of William T. Cook.
The plaintiff is a daughter of the testator, and the defendants are the other children, grandchildren, daughter-in-law, and executors of the deceased. The will was executed on December 17, 1895. Shortly thereafter the testator died, and the will was probated in- March, 1896.
By the first item of the will the testator bequeathed to his grandson, E. C. Cook, one hundred and sixty acres of land to enable him to support and care for his invalid mother. By the second item of the will the testator bequeathed to his daughter, Martha Corner, eighty acres of land. By the third item of the will the testator bequeathed to his daughter, Mary Stone, the plaintiff,
After reciting the relationship of the parties litigant and after setting out the will in full, wherein the testator declares himself to be ninety-one years old and of sound mind, the petition charges that at the time the will was made the testator “was old, feeble of body and was of unsound mind and incapable of making a will, ’ ’ and then charges that the. will was procured by the undue influence of the grandson E. C. Cook, and of the daughter-in-law, and of a witness to the will. The petition then states that the will was admitted to probate in Audrain county at the March term, 1896, of the probate court.
The petition then alleges that the plaintiff received from the executors the special legacy of five hundred dollars, bequeathed to her by the third item of the will, and also received six hundred dollars under the seventh-item of the will, being one-third of the residuum of the
The prayer of the petition is that issue be joined as to whether or not the will is the will of William T. Cook.
The suit was made returnable to the September term, 1901, of the Audrain Circuit Court.
The defendants demurred to the petition on the ground that it does not state facts sufficient to constitute a cause of action, in this, first, because it shows on its face that it was not instituted within five years after the will was probated in common form, and hence is barred by limitation; and, second, because the petition shows on its face that the plaintiff accepted the benefits accruing to her under the will, and is therefore estopped to deny or contest the validity of the will.
The circuit court sustained the demurrer, the plaintiff refused to plead further, judgment was entered for the defendant, and the plaintiff appealed.
I.
The pivotal question here involved is whether the plaintiff having received the legacies bequeathed to her by the will, can be heard to contest the validity of the will, upon bringing into court the sums she has received under the will.
The fact that she received the legacies under protest or under a claim that they constituted only a part of what she was entitled to by law, outside of the will, is wholly immaterial, and avails nothing. [Pollman Coal Co. v. St. Louis, 145 Mo. 651" court="Mo." date_filed="1898-10-17" href="https://app.midpage.ai/document/pollman--bros-coal--sprinkling-co-v-city-of-st-louis-8012939?utm_source=webapp" opinion_id="8012939">145 Mo. 651; McCormick v. Transit Co., 154 Mo. 191" court="Mo." date_filed="1900-02-06" href="https://app.midpage.ai/document/mccormick-v-interstate-consolidated-rapid-transit-railway-co-8013455?utm_source=webapp" opinion_id="8013455">154 Mo. 191; McCormick v. St. Louis, 166 Mo. l. c. 345-6.]
The general rule laid down in the text is supported by the following cases, cited in the notes to the text: Smart v. Easley, 5 J. J. Marsh. 214; Herbert v. Wren, 7 Cranch 370" court="SCOTUS" date_filed="1813-02-26" href="https://app.midpage.ai/document/herbert--others-v-wren--others-85015?utm_source=webapp" opinion_id="85015">7 Cranch 370; Preston v. Jones, 9 Pa. St. 456; Smith v. Guild, 34 Me. 443" court="Me." date_filed="1852-07-01" href="https://app.midpage.ai/document/smith-v-guild-4929219?utm_source=webapp" opinion_id="4929219">34 Me. 443; Hyde v. Baldwin, 17 Pick. 303; Benedict v. Montgomery, 7 Watts & S. 238; Smith v. Smith, 14 Gray 532; Van Duyne v. Van Duyne, 14 N. J. Eq. 49; and Fulton v. Moore, 25 Pa. St. 468. To the same effect is Syme v. Badger, 92 N.C. 706" court="N.C." date_filed="1885-02-05" href="https://app.midpage.ai/document/syme-v--badger-3664209?utm_source=webapp" opinion_id="3664209">92 N. C. 706.
In all these cases it is held, without qualification, that one who accepts a benefit under a will or deed thereby elects to take under the instrument and is estopped thereafter from contesting the validity of the instrument. Nothing is said in any of these eases about the right of such person to bring into court the benefits so received, and thereupon to contest the instrument.
However, in Holt v. Rice, 54 N. H. l. c. 402, while the general rule is announced and affirmed, it is held that one who has received a benefit under a will, may pay the amount so received into court, and thereafter contest the will, though it is said, “under circumstances of delay, connected with other circumstances, it has been held to preclude the party from contesting the will after-wards,” and it was allowed in that case because there had been no great delay. In Miller’s Appeal, 159 Pa. St. l. c. 574, the contesting legatee was required to pay the money received into court before he was permitted to proceed, and it was held that “where the acts set up are equivocal, or were done in ignorance of the rights of the doer, or where they consist merely of the receipt of a pe
In the Matter of Soule, 1 Connoly’s Repts. l. c. 54,. the sufficiency of a mere offer to refund, contained in a petition to contest a will, is discussed, and held to be insufficient, and that nothing short of an actual payment into court of the benefits.received before the filing of the petition, will entitle a beneficiary under a will who has received benefits thereunder, to repudiate and contest the will.
In the Matter of Peaslee, 73 Hun l. c. 114, the rule is so admirably stated as to justify the following excerpt therefrom:
“It is a well-settled proposition in law, as well as in equity, that he who accepts and retains a benefit under an instrument, whether deed, will, or other writing, is held to have adopted the whole, and to have renounced every right inconsistent with it. The rule has found expression in many actions and with widely differing facts. A few of them only will b,e referred to.
“In Chipman v. Montgomery (63 N. Y. 234), which was an action in the Supreme Court to obtain a judicial construction of a will, and for an accounting, Judge Allen, speaking for the court, said: ‘ Two of the plaintiffs have received in whole or in part the legacies given them by the will, and having accepted the benefits of the provision made for them, can not be heard in opposition to other parts of the instrument, except by proof of circumstances showing that they had not intelligently elected to take under the will, rather than in opposition to it, and a return of all that has been received by them. ’ And he quoted with approval Uord Redesd ale’s decision, in Birmingham v. Kirwan (2 Sch. & Lef. 444), that this rule of election is applicable to every species of instrument, whether deed or will, and to be a rule of law as well as equity.
*543 “The rule is also asserted in Havens v. Sackett (15 N.Y. 365" court="NY" date_filed="1857-06-05" href="https://app.midpage.ai/document/havens-v--sackett-and-havens-3577128?utm_source=webapp" opinion_id="3577128">15 N.Y. 365.)
“In Mills v. Hoffman (92 N.Y. 181" court="NY" date_filed="1883-04-17" href="https://app.midpage.ai/document/mills-v--hoffman-3578945?utm_source=webapp" opinion_id="3578945">92 N. Y. 181), which was art appeal from a decree of the Surrogate’s Court compelling an administrator to account, the objection overruled by that court being that the petitioner was barred, because of an entry of judgment, in which she was a party-defendant, although an infant, and the subsequent distribution of the estate in pursuance of the judgment by which the moneys came into the hands of her guardian and upon her majority to her. After this latter event the judgment was vacated and set aside as to her, on the ground that the appointment of a guardian ad litem to represent her had been irregular, and the Court of Appeals held that she was estopped from controverting in the Surrogate’s Court the judgment under which she had received benefits.
“In Matter of Soule (1 Connoly 18" court="N.Y. Sur. Ct." date_filed="1888-12-15" href="https://app.midpage.ai/document/in-re-the-application-for-the-revocation-of-probate-of-the-will-of-soule-6139514?utm_source=webapp" opinion_id="6139514">1 Connoly 18), the right of a legatee who had received moneys under a will to claim revocation of probate without making full restitution to the executors was denied.
“Numerous cases have arisen under wills where this principle has been applied. (Hamblett v. Hamblett, 6 N. H. 333; Van Duyne v. Van Duyne, 14 N. J. Eq. 49; Weeks v. Patten, 18 Me. 42" court="Me." date_filed="1841-04-15" href="https://app.midpage.ai/document/weeks-v-patten-4927220?utm_source=webapp" opinion_id="4927220">18 Maine 42; Smith v. Guild, 34 Id. 443; Hyde v. Baldwin, 17 Pick. 303; Smith v. Smith, 14 Gray 532; Bell v. Armstrong, 1 Adams 365; Braham v. Burchell, 3 Id. 243.)
“The learned counsel for the appellant, while citing no authorities asserting a contrary proposition, has carefully analyzed and elaborately discussed nearly all the cases we have cited, in order to make it appear that they are distinguishable from the ease at bar. In their facts; they are different from this case and they differ from each other, but they all tend to make good the assertion which may be found running through the books, that he who receives money or property, or a benefit of any kind, under aft instrument, whatever its character, or his*544 relation to the maker of it, can not question the instrument in whole or in part. But the appellant urges that the reason for the rule does not apply in this ease, and. therefore, the rule should not obtain. Here he says no injury can result to the executors or any one else, because the petitioner is permitted to contest the will while retaining the $7,000 which she received from the executors, because if the will be set aside, she as one of the next of kin, will be entitled to receive a larger sum of money than $7,000, and, therefore, the executors can be amply protected by the surrogate. It may be true that if the contest should proceed it would so turn out, but of that we are not assured.
“It does not appear that should the petitioner be successful in her contest, as a result her mother’s intestacy will be established.
“ There may be other and prior wills in existence, the validity of one of which may be established, with the possible result that the petitioner will not receive thereunder a legacy sufficient in amount to make good the advancement to her by these executors. Certainly the contrary can not be safely assumed.
“The fact that the petitioner received this money, and expended it before becoming aware of the facts which encouraged her to enter upon a contest of the will, may perhaps be unfortunate for her. If misfortune it be, it arises of course from the necessities which induced her to expend the money. Where a person asks that a rule be not applied, on the ground that the reason upon which it is founded is not present, the burden rests upon him to establish clearly the facts which he relies on to support his contention. The petitioner took the money and used it, and until she puts the parties in a position where, whatever the result may be, no one can be the loser, because of the payments originally made to her, she is not in a situation to attack the will. ’ ’
The general doctrine of election is well stated in 11 Am. & Eng. Ency. Law (2 Ed.), p. 59, and the note to
And on page 98 the same author says, “Applying the principle that knowledge is essential to constitute a valid election, it is established that where the act is induced by deception or fraud, or where the person electing acted under an ignoránce of the facts or under a misapprehension of his rights, and innocent third parties will not suffer by a revocation, the act may be revoked or set aside. But such election can be revoked only by restoring the property received under it. ’ ’
And at páge 78 the author says that while some courts hold that a married woman can not elect, other courts hold to the contrary, and in any event if she seeks to revoke the election she must bring the benefits she has received into court. '
In Fox v. Windes, 127 Mo. l. c. 511, this court quoted the rule laid down by Herman on Estoppel as follows: ‘ The doctrine of election is founded upon the principle that there is an implied condition, that he who accepts a benefit under an instrument must adopt the whole of it, conforming with all its provisions, and renouncing every right inconsistent with them. The principle is recognized and established in this country almost precisely the same as in England, and rests upon the equitable ground that no man can be permitted to claim inconsistent rights with regard to the same subject, and that any one who claims an interest under an instrument, is bound to give full effect to that instrument as far as he can. A person can not accept and reject the same instrument, or, having availed himself of it as to part, defeat its provisions in any other part; and this applies to deeds, wills, and all other instruments whatever. [2 Herman on Estoppel and Res Judicata, sec. 1028, p. 1156. See, also, 2 Story’s Eq. Jur. (13 Ed.), sec. 1080.] This doctrine of election which prevents the assertion of repugnant rights, is but
The sum of the matter then is, that as a general rule one who has received a benefit under a deed, will, or other instrument can not thereafter contest its validity, but the general rule is subject to this qualification, .that if the benefit was received without a knowledge of his right to elect between the benefit so conferred and of his right to the property outside of the deed, will or •instrument, or if he was induced by fraud or deception -to accept the' benefit conferred by the instrument, he may revoke the election and contest the validity of the -instrument and claim under the law, provided that innocent third persons will not suffer by a revocation, and provided there has been no unreasonable delay in exercising the right of revocation, and provided he pay into court the benefits received.
Apply this rule to the case at bar and the case is easily solved. It expressly appears from the face of the petition that the plaintiff knew that she had a right to elect to take under the will or by operation of law, at the time she received the legacies, for she says she “accepted the same under protest and insisted that the will was invalid and only received the same because under the law she would be entitled to one-third of the entire estate, a sum and an amount much larger than the amount received by her as herein stated. ’ ’ Therefore the plaintiff acted with full knowledge of her legal right of' election, and there is no charge that she was induced to accept the- benefit by any fraud or deception. It does not appear how long she waited after receiving-the benefit before she attacked the validity of the will.
The allegation that she is ready and willing to pay the amount received into court or to have it deducted from her share of the estate if the will is set aside, is not sufficient to bring her within the rule which entitles one to contest an instrument after receiving a benefit under it, for the rule requires that the benefit received
In addition to this, innocent third persons will suffer if she is allowed to revoke her election, upon returning the benefits she has received. The major portion of the benefits she has received arose out of the residuum of tbe estate. That means that all the special legacies had been paid, before such residuum was ascertained and paid. These special legacies arose solely out of the will, and without the will that money would have gone to other persons. Upon the faith of the plaintiff’s acceptance of the benefits conferred upon her by the will, the executors paid out the special legacies to other persons. The plaintiff stood by and saw the executors do so. If the plaintiff should now be permitted to have the will set aside, upon payment into court of the benefits received by her, the special legacies paid by the executors would be lost to them, for the money so expended would go to the heirs, of whom the plaintiff was one. Thus the executors would suffer by a revocation. It is-true that the statute permits a will to be contested at any time within five years after its probate in common form, and the statute contemplates that the estate may or will be wound up before that time, and persons who take under a will know that the estate thus derived is liable to be divested by a successful attack, thereafter, upon the will. But whilst this is true, the lawmakers never intended to permit a legatee under a will to accept the benefits conferred by the will, and- then stand by and see the estate wound up, or practically wound up, and then begin proceedings to contest the will, upon returning only the amount received by the contesting legatee. Such a proceeding falls within the rule that denies the right to contest where there has been unreasonable delay.
In short, it is plain from the petition that the plaintiff thought she could accept the benefits and then contest the will, and simply have the benefits received de
It follows that the plaintiff has not shown herself entitled to maintain this action.
It is contended, however, that estoppel is an affirmative defense and can not be raised by demurrer. Estoppel is an affirmative defense, and so is coverture, and the statute of limitations, and contributory negligence, and payment, and release and many others, and such defenses must be expressly pleaded in the trial court. But where the facts constituting such defense affirmatively appear on the face of the petition, the question can be raised by demurrer to the petition, just as effectually and equally as scientifically, as by answer ■or plea. The petition in this case stated the facts upon which the defense of estoppel is predicated, and it would seem as if the pleader had invited a determination by the inexpensive and speedy method of a demurrer, in order to avoid the costly and tedious method of raising the same question of law, by an answer and a trial. Wherever or however tire essential facts appear, all else is a question of law, and can be raised by any of the methods provided for the determination of questions of law.
This conclusion makes it unnecessary to decide whether, since the adoption of the married woman’s acts, the five-year limitation for instituting suits to contest wills, applies to a married woman.
The judgment of the circuit court is affirmed.