72 Pa. Super. 143 | Pa. Super. Ct. | 1919
Opinion by
The controlling facts in this case are not in dispute. Alice Swartz died testate, February 21,1917. On February 28,1917, her husband, R. J. Swartz, executed a notice of election to take against the last will and testament of his deceased wife, and to “accept and take under the laws of Pennsylvania.” This was acknowledged before the recorder of deeds and placed on record the same day in the recorder’s office in “Election Under Wills Book, vol. 1, page 21.” R. J. Swartz, the surviving husband, died on May 20, 1917. The only question for our consideration is the effect to be given undisputed facts relating to the delivery of the notice of R. J. Swartz, the surviving husband, to the executor to take against the will of the deceased wife, under the Act of April 21,1911, P. L. 79, which provides as follows: “Section 1. Be it enacted, etc., That surviving husbands or wives electing to take under or against the will of decedents shall, in all cases, mani
We cannot agree with the auditor’s conclusion of fact. The written paper was in due form, — it was exhibited to the executor. Its purpose being unmistakenly declared, the executor knew its contents and the effect it was intended to have. He made no objection or protest; the paper was placed on record almost in his very presence, without objection. His standing mute under such circumstances cannot nullify the effect of a delivery of the paper to him. When the attorney stated “'it would have to be recorded and he would take it over to the recorder’s office” and the executor made no objection, all rules of common sense and fair dealing would necessarily imply that, without objection on the part of the executor, the act of the attorney was with his assent. “If a person by his conduct induces another to believe in the existence of a particular state of facts, and the other act thereon to his prejudice, the former is estopped, as against the latter, to deny that the state of facts does in truth exist.” Yol. 16 of Cyc., pages 680 and 681. “Estoppel by silence arises where a person who by force of circumstances is under duty to speak refrains from doing so and thereby leads the other to believe in the existence of a state of facts in reliance upon which he acts to Ms prejudice.” His silence, which is now so earnestly relied on, was grossly misleading. The attorney could have simply handed the paper to him and complied with every legal requirement. The paper was not for the executor to keep, but to pass on for record, as the attorney did, as a record memorial of the husband’s declaration of intention. The mere fact that the executor did not take physical control of the paper, but was satisfied to be advised of its contents and see it when it was laid before him within
The decree of the court below is reversed, the record remitted with a procedendo to make distribution in accordance with this opinion.