Utermehle v. Norment , 22 App. D.C. 31 ( 1903 )

Mr. Justice Morris

delivered the opinion of the Court:

There are seven assignments of error: (1) That it was error to hold that the caveator was estopped, at the time of the filing of his caveat, from disputing the will of George W. Utermehle as a will of personalty; (2) that it was error to hold that he was estopped from disputing it as a valid will of realty; (3) that it was error to instruct the jury to return a verdict against the caveator on the issues of estoppel; (4) that it was error to direct a verdict against the caveator on all the issues; (5) that it was error to direct a verdict against the caveator on the issues that did not involve the question of estoppel; (6) and (7), which are merely duplications of each other ■— that it was error to exclude the testimony of the caveator as to certain alleged statements and declarations claimed to have been made to him by his grandfather as to his testamentary intentions toward the caveator.

1. Taking np the last of these assignments first, we find that the purport of the statements and declarations referred to is that George W. Utermehle stated to the caveator on one or two occasions, that if he, the caveator, would not take sides in certain legal proceedings then pending in which he, the grandfather, was involved, he, the grandfather, would leave to the caveator a share of his estate equal to that which he would leave to each of the caveator’s two aunts. Now it is very plain to us that under the decision of the Supreme Oourt of the United States in the case of Throckmorton v. Holt, 180 U. S. 552, evidence as to such alleged statements was properly excluded.

It is argued, however, that notwithstanding that decision, such statements are admissible in evidence where there is question of the mental capacity of a testator. But we fail to see the force of this argument. No one questions, and least of all the caveatees question, the mental capacity of George W. Utermehle at the time at which these statements and declarations are alleged to have been made. And if the meaning of the argument is that they tend to show his subsequent mental incapacity at the time of the making of his will, the plain answer is that they are utterly irrelevant and ineffectual for any such purpose.

2. The substantial question in the present case is that of estoppel. This question controls the whole case, and if the trial court has decided it correctly, the rulings upon other questions are of no consequence. We think that it did decide it correctly.

The doctrine is too well established to need either argument or citation of authority in support of it, that one, who takes a benefit under a will, cannot thereafter be heard to dispute or deny the validity of the will, and it is needless to say that the doctrine is founded upon the plainest principles of justice. We do not understand that this rule of the law is in any manner questioned by counsel for the caveator, nor do we understand it to be denied tbat in tbe absence of fraud or misrepresentation the action of tbe caveator in tbe premises, as detailed by himself, would constitute a full and complete estoppel upon him to prevent bim from contesting tbe validity of his grandfather’s will. He agreed to tbe probate of tbat will, and be took property under it, both real and personal, and tbat this, especially after tbe lapse of so long a period as eleven years tbat intervened between tbe probate and tbe filing of bis caveat tbat led to tbe present proceedings, would constitute an estoppel, is very evident.

Tbe claim, however, on behalf of tbe appellant is tbat what be did be was induced to do by misrepresentation and fraud; tbat be was ignorant at tbe time and for a long time afterwards of the law of estoppel, and tbat as soon as be discovered what be calls bis rights, be notified Mrs. Taylor and Mrs. Nonnent, and repudiated tbe will of bis grandfather, and offered to account to bis aunts, in some way not very clearly defined, for what be had received under tbe will. This offer to account be regards as equivalent to a tender of tbe property received by him.

It is exceedingly improbable tbat all tbe caveator’s relatives, including bis grandmother, conspired to defraud this young man. It is more than probable tbat tbe promise, which was made to bim, if any there was actually made, was tbat be should share equally with bis aunts in bis grandmother’s estate; and this promise bis grandmother fully and faithfully performed. But, however this may be, and even if tbe alleged promise was in fact what be now claims it to have been, it is difficult to see bow a promise by bis •grandmother and subsequent failure on her part to perform it can constitute misrepresentation and fraud on tbe part of Mrs. Taylor and Mrs. Norment sufficient to induce tbe appellant to refrain for eleven years from contesting tbe validity of bis grandfather’s will. And this is absolutely all tbe misrepresentation and fraud tbat is charged or sought to be shown.

There is no pretense tbat Mrs. Taylor was not acting in good faith when she made the alleged promise on behalf of her mother; nor is there any pretense that Mrs. Norment was guilty of any fraud in connection with it when she merely stood by and said nothing. Neither of them made any promise whatever on her own account; nor is there either allegation or evidence of any fraud, or fraudulent concealment, or fraudulent inducement of any kind practiced by them upon the appellant or held out by them on their own account on which he was led to act. That they were probably desirous to have the will of their father probated without controversy and its validity conceded may well be assumed, although it is not entirely apparent that they received any more of the whole estate under the will than they would have received under the law if there had been no will. But any desire which they may have had to avoid a possible contest cannot be charged to them as fraud. We find no evidence whatever in the record of any fraud or mispresentation on their part.

The only promise which was made was the promise of the appellant’s grandmother, made, it is true, through Mrs. Taylor, but yet, notwithstanding that fact, the promise exclusively of the grandmother. And it was the grandmother who mainly, if not exclusively, profited by the exclusion of the appellant from any large share in the estate. But if the plaintiff relied upon this promise and was induced thereby to forego any action against the will, and that promise was not afterwards performed by his grandmother, the remedy of the appellant was not to return to an attack upon the will, but was by action of some kind against his grandmother’s estate, and he took no such action. Her delinquency, if there was any such, which we greatly doubt, should not be visited upon Mrs. Taylor and Mrs. Norment, who are not shown to have had any part in it.

Then, if there was no misrepresentation or fraud on the part of Mrs. Taylor or Mrs. Norment, it is wholly unimportant whether, at the time when he committed the acts which constitute the estoppel, the appellant was or was not ignorant of the law of estoppel. By those acts he led Mrs. Taylor and Mrs. Norment into a situation from which, notwithstanding the ingenious argument of counsel to the contrary, they cannot now be restored to their original status. Upon the faith of those acts and the probate of the will they surrendered their right to a large amount of personal property, and a large amount of real estate also, to which they would have been entitled in the absence of a will. It is impossible to tell from the record before us whether they fared any better with the will than they would have fared without it; but it is very evident that, by the bequest of the entire personalty by the will to their mother, they lost a valuable interest to which they cannot now be restored. It is impossible to restore the original situation; and the attempt to do so would be wantonly to question titles that have long since accrued, including the very title which the caveator has himself disposed of, to the Young Law Building.

3. Certain cases are cited to show that, when a person has acted in ignorance of his legal rig’hts under a will as to election whether to take under the will or to assert an independent title against the will, he will not be estopped, if in due time he tenders back to the executor what he has received under the will. These cases are Spread v. Morgan, 11 H. L. 588, and Watson v. Watson, 128 Mass. 152. But we do not understand that these cases are here applicable. It is, perhaps, a matter of minor importance that there is here no executor now in existence of the estate of George W. Utermehle to whom the appellant could tender back the amount of the personalty which he received from that estate; and perhaps it is equally unimportant that no tender of the real estate received and appropriated by the appellant under the will could be tendered back to such executor in any event, as such executor had nothing to do with the real estate. It is perhaps more important that the appellant has precluded himself from making any tender whatever of such real estate to any one by the fact that he has conveyed it away; but assuming that such tender or surrender could be made by the appellant, and assuming that the offer to account which he has made is the equivalent of a proper tender, which is very greatly to be doubted, but which we do not decide, yet the appellant’s case is not governed by the authorities cited.

The two cases in question were cases in equity wherein, according to the rule of equity, a party was required to make his election as to which he would take of two inconsistent rights. In the first-mentioned case, that of Spread v. Morgan, in the English House of Lords, a man had come into the possession of one piece of property under an ancient entail, and into the possession of another piece of property under a more recent family settlement. The details of the case are complicated, but it will suffice to say that it was inconsistent in equity for the party to hold both pieces as against another man who was also entitled in a subordinate manner to one of the pieces under the family settlement. He was required to elect which of the two pieces he would hold; or rather, the inquiry was whether he had in fact elected when a court of equity held that he should have done so. It appeared that he knew all the facts, but that he did not know that by the rules of equity he was bound to elect.

Sneaking for the House of Lords, sitting as a court of appeal, Lord Chancellor Westbury said:

“ It is true, as a general proposition, that knowledge of the law must be imputed to every person; but it would be too much to impute knowledge of this rule of equity. Election, as a question of intention, of course implies knowledge. There may be a series of unequivocal acts from which an intention to elect and the fact of actual election may be inferred; but, under the circumstances of the present case, it does not appear to me that any such inference can be drawn.”

And Lord Chelmsford, in the same case, said: “ In order that a person who is put to his election should be concluded by it, two things are necessary: Eirst, a full knowledge of the nature of the inconsistent rights and of the necessity of electing between them; second, an intention to elect, manifested either expressly or by acts which imply choice and acquiescence.”

In the case of Watson v. Watson, in the Supreme J'udicial Court of Massachusetts, three nephews and an uncle held a piece of real estate as tenants in common. The uncle died leaving a will, by which he made bequests of his personalty specifically to his nephews; devised about two acres of the common property, by specific description of it, to one of the nephews, J ames; devised ten acres of the same property, by similar specific description, to a grandnephew, Horace ; and devised the remainder of his real estate, specifically excluding that previously devised, to another nephew, Albert, for life, with remainder in fee simple to Albert’s son. One nephew, Edward, received none of the real estate, and only a legacy of $50 in money. All the parties received their legacies and entered upon the lands devised to them, notwithstanding that, as stated by the court, the devises were ineffectual as against the co-tenants, unless they had confirmed it.

It appears that all the parties were ignorant of the rule of law laid down in Massachusetts in the case of Hyde v. Baldwin, 17 Pick. 308, by Chief Justice Shaw, which was this, as stated by the chief justice himself:

“ It is now a well-settled rule in equity that, if any person shall take any beneficial interest under a will, he shall be held thereby to confirm and ratify every other part of the will; or, in other words, a man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat or in any way prevent the full effect and operation of every part of the will.”

Hpon being informed of this rule two of the three nephews took no steps to restore to the executor the personal property which they had received, or otherwise to renounce their claims under the will, further than to sign a paper wherein they reserved to themselves the right thereafter to elect, upon a decision of the law, if they should desire. As to them the court held that the rule of law, as laid down in the case of Hyde v. Baldwin, applied. But the third nephew, Edward, who had received a legacy of $50, but none of the land, stood, it was said, in a different attitude. “ Immediately upon being informed of the rule of law, little more than a year after the probate of the will, and before the executor had settled any account in the probate court, or the position of any other person had been changed, he returned his legacy to the executor, and gave him notice that he elected not to take it.” It was said by the court, in a suit thereafter instituted for partition of the whole property, that he could not be held to have made such an election as should deprive him of the right under his independent title to partition of the whole estate.

In that case the Supreme Judicial Court of Massachusetts, by Mr. Chief Justice Gray, said:

“ In this commonwealth it has been decided, in accordance with the opinions of Lord Mansfield, Lord Loughborough, and Lord Redesdale, that the rule (that laid down by Chief Justice Shaw, as already stated) holds good at law as well as in equity. * * * But this doctrine, whether applied in practice on the common law or on the equity side of the court, depends not upon technical rules, but upon principles of equity and justice, and upon actual intention. An election made in ignorance of material facts is, of course, not binding when no other person’s rights have been affected thereby. So if a person, though knowing the facts, has acted in misapprehension of his legal rights, and in ignorance of his obligation to make an election, no intention to elect, and consequently no election, is to be presumed. This has been settled in England by a long series of authorities, of which it is sufficient to cite a few. (Citing cases.)

“ "Where the law allows the probate of a will in either of two forms — in common form, ex parte, upon being presented by the executor, or in solemn form, upon the application of any person interested and notice to all others — a person who has received a legacy under a will proved in common form is permitted, on tendering back the amount to the executor, or bringing it into court, to contest the validity of the will, and compel it to be proved in solemn form. Bell v. Armstrong, 1 Add. Eccl. 365, 374, and cases cited. Hamblett v. Hamblett, 6 N. H. 333; Holt v. Rice, 54 N. H. 398.”

We have been at pains to cite these two cases in extenso, because they are tbe principal reliance of tbe appellant, and his cause was tried in the court below with special reference to the case of Watson v. Watson. But we are very clearly of opinion that the appellant is not aided by these authorities. His case is not one of election, but of estoppel. He made his election, when election was open to him; and he is'now es-topped from seeking that which he declined. It is idle for him to say that he did not know that he had the right of election, and that he acted in ignorance of his rights. Every man of ordinary sense and capacity is bound to know that he cannot take a benefit under a will and at the same time seek to overthrow the will. It was distinctly presented to him to make that election when he was asked to sign the consent to the probate of his grandfather’s will; and he then made it, and he confirmed the election by taking his legacy and the real estate devised to him and disposing of it beyond the possibility of his ever being able to return it to the estate. The election referred to in the cases of Watson v. Watson and Spread v. Morgan is election between two inconsistent rights, not election between two inconsistent courses of action. At the time of the probate of his grandfather’s will he knew, as well as he did at any time after-wards, that, if there were no such will, or if he could overthrow such will, he could get a larger share of his grandfather’s estate than he could get, or did get, under the will. There was no ignorance on his part of any rights which he might have. What he discovered afterwards, if he discovered anything, was not any alleged right, but the testimony to support that right, which makes a very different proposition.

It is very plain from what is distinctly stated by the Supreme Judicial Court of Massachusetts in the case of Watson v. Watson that the right of election there mentioned must have been exercised before the executor has settled his accounts, and before the position of any person in interest has been changed. It is idle to argue here that, because the appellees in these proceedings are in possession of some of the real estate that belonged to George W. Htermehle, therefore the position of no one in interest at the time of the probate of his will has been changed. It is sufficient to say in answer to this argument that the action of the appellant enabled the executrix of George W. Utermehle to divert the whole of the personalty of that estate from Mrs. Taylor and Mrs. Norment, who would have been entitled to a large share of it in the absence of a will. They lost all right to this personalty; they lost all right to a large portion of the real estate, and it is not apparent that the appellant could compensate them for this loss by the surrender of all that he received under the will, even if he were in condition to make such surrender.

We are very clearly of the opinion that it is now too late for the appellant to question the validity of his grandfather’s will, and that he has estopped himself from so doing. His course of conduct, as conceded and proved by himself, conclusively and as matter of law operates as an estoppel upon him. There was nothing whatever in the case to be submitted to a jury; and the court was entirely right in directing a verdict for the' caveatees. A verdict for the caveatees on the question of estoppel necessarily superinduced a verdict for them on the other issues.

é. We may add here that it is greatly to be questioned whether the probate court had jurisdiction in this case to formulate and try the first of the six issues which were drawn up — that of the estoppel of the caveator to dispute the validity of the will of George W. Utermehle as a will of personalty, or whether, if it had the jurisdiction, the issue should have been allowed under the circumstances of the case.

The will had been admitted to probate as a will of personal property in 1889, with the concurrence and consent of the appellant. Even if that consent had been procured by misrepresentation and fraud, as claimed by the appellant, that fact would have made no difference in the present connection. Acting upon that consent, the executrix took possession of the personalty and distributed it, in accordance with the provisions of the will, to the legatees therein, the principal part of it to herself as the principal legatee. She settled her account, and the administration was at an end; and there had been no case in court for ten years before the appellant’s caveat was filed. Even if the will were declared null and void as the result of that caveat, the statute of limitations would interpose an insuperable bar to the recovery of that personalty, or of any part of it, by any administrator of the estate of George W. Utermehle, or by any one else in interest.

Moreover, upon the caveator’s own showing, he received one-third of his grandmother’s personal as well as real estate, equal to what each one of his aunts received. Apart from the estoppel which would preclude him from denying that this was the money of his grandmother after he had received it as such, and presuming that it was lawfully and in fact the money of his grandfather, he received more of the personal estate of his grandfather, by the amount of the note for $750 and interest, than either Mrs. Taylor or Mrs. Norment received. With what propriety, then, or to what reasonable purpose could he seek to have the will declared void as a will of personalty? He would not be entitled to any more, or to as much as he actually received, if the will were so declared.

There was nothing in the appellant’s caveat that justified the reopening of any inquiry as to the validity of the will of George W. Utermehle as a will of personal property, and it was an irregularity to have allowed it. But no harm has come from this irregularity, since the result has been to confirm the previous probate of the will, and consequently the settlement of the personal estate thereunder.

From what we have said it follows that the decree appealed from must be affirmed, with costs. And it is so ordered.

A writ of error to the Supreme Court of the United States was prayer by the appellant and allowed June 2, 1903.