160 Mass. 206 | Mass. | 1893
The principal question at issue is whether the defendant’s intestate, after having accepted the appointment
Much of what we have said is applicable to the plaintiff’s contention that the defendant’s intestate is estopped from claiming his share by reason of an election to treat the will as valid. The doctrine is well established, that one who elects to take a devise or legacy under a will is estopped from setting up, a claim which would defeat the operation of the will. Hyde v. Baldwin, 17 Pick. 303. Smith v. Smith, 14 Gray, 532. Smith v. Wells, 134 Mass. 11. The reason of this rule is, that it would be unjust for him to claim property which the will assumes to dispose of, and which was treated by the testator as a part of his estate on which he relied to carry out his intentions expressed in the will, and at the same time to take under the will that which very likely would not have been given if the testator had supposed he would make such a claim. If by his claim he takes out of the estate a part of that which was treated by the will as belonging to it, it is reasonable that he should leave for those whose shares are diminished by his conduct the share which he would
The case of Smith v. Wells, ubi supra, was decided on the ground that the husband had received and held a valuable property under the will, and was thereby estopped from making a claim at variance with any of the provisions of the will.
We do not intimate that, if the law on this part of the case were different, the administrator de bonis non could recover in this form of action, in the absence of an account in the Probate Court, for assets which the executor appropriated and assumed to administer, and which could not be traced or identified as a part of his wife’s estate. A probate account cannot be settled in an ordinary action "at the common law, and in the present case it is agreed that the account as allowed does not correctly show the amount for which the defendant would be chargeable if the plaintiff’s theory of the law were adopted. See Brooks v. Brooks, 11 Cush. 18; Munroe v. Holmes, 9 Allen, 244; S. C. 13 Allen, 109 ; Prentice v. Dehon, 10 Allen, 353 ; McLane v. Curran, 133 Mass. 531; New England Trust Co. v. Eaton, 140 Mass. 532 ; Cobb v. Kempton, 154 Mass. 266.
Judgment for the defendant.