it must be made by the court acting for the best interests of the donee.65

§ 826. Acts Constituting Election.

66

Election may be made in either of two ways: As a matter of record, or by acts amounting to an estoppel. The former is regulated by statute, and the various acts must be referred to.67 Many statutes prescribe the time within which the election must be made. As to election by reason of actions on the part of the donee, if they are clear and unequivocable and done with the full knowledge of all the circumstances and of the rights under the will, there is small room for controversy. But although an election may be a matter of fact, yet there is a difference between waiving rights under the will and waiving a statutory right such as dower. It will not be held that a widow has waived her rights under the law by reason of actions on her part unless they were of such marked character and of such long duration as to clearly indicate a purpose on her part to take under the provisions of the will, and she must act with a full knowledge of her rights both by statute and under the will, and of the true condition of the estate.68

zier's Appeal, 90 Pa. St. 384, 35 Am. Rep. 666. See, also, Millikin . Welliver, 37 Ohio St. 460.

Election may be made by the guardian of an insane person with the approval of the court.-Hardy V. Richards, 98 Miss. 625, 35 L. R. A. (N. S.) 1210, 54 So. 76.

65 Van Steenwyck v. Washburn, 59 Wis. 483, 48 Am. Rep. 532, 17 N. W. 289.

66 Forester v. Watford, 67 Ga. 1508; Davidson v. Davis, 86 Mo.

440; Millikin v. Welliver, 37 Ohio St. 460.

67 In some of the states having laws on the subject, if a widow does not elect to waive the will within a certain time, she will be deemed to have accepted it; but in other states she is deemed to have chosen her intestate share unless she elects to take under the will within a limited time.-Stimson's Am. Stat. Law, § 3265.

68 Matter of Smith, 108 Cal. 115,

§ 827. Election Made Through Ignorance, Fraud or Mistake May Be Repudiated.

70

An election made in ignorance of facts which might influence the choice is not binding," although an intelligent dissent to the will is final. An election made in ignorance may be recalled at any time before the final distribution of the estate.71 But after dower has been assigned and the estate settled, the proceedings can not be set aside in the absence of fraud or mistake.72 Nevertheless, even where it is provided by statute's that, unless the widow elect within a year against the will, she shall be deemed to have elected to take under it, the court may allow her after the expiration of the time to take against the will where it appears that her failure to act

121, 40 Pac. 1037; Benedict v. Wilmarth, 46 Fla. 535, 4 Ann. Cas. 1033, 35 So. 84; Forester v. Watford, 67 Ga. 508; Haynie v. Dickens, 68 Ill. 267; Clark v. Middlesworth, 82 Ind. 240; Wilson v. Wilson, 145 Ind. 659, 44 N. E. 665; Shaw's Devisees v. Shaw's Admr., 2 Dana (32 Ky.) 341; Clay v. Hart, 7 Dana (37 Ky.) 1, 6; Exchange etc. Bank v. Stone, 80 Ky. 109; Reed v. Dickerman, 12 Pick. (29 Mass.) 146; Delay v. Vinal, 1 Metc.

(42 Mass.) 57, 65; Hovey v. Hovey, 61 N. H. 599; Stark v. Hunton, 1 N. J. Eq. 216, 227; English v. English's Exrs., 3 N. J. Eq. 504, 29 Am. Dec. 730; Cory's Exr. v. Cory's Admr., 37 N. J. Eq. 198, 201; Millikin v. Welliver, 37 Ohio St. 460, 467; Colored Industrial School v. Bates, 90 Ohio St. 288, Ann. Cas. 1916C, 1198, 107 N. E. 770; Caston v. Caston, 2 Rich. Eq. (S. C.) 1;

Craig's Heirs v. Walthall, 14 Gratt.
(Va.) 518, 525; Rutherford V.
Mayo, 76 Va. 117; Cooper v.
Cooper's Exr., 77 Va. 198, 205.

69 Kidney v. Coussmaker, 12 Ves. Jun. 136; Evans' Appeal, 51 Conn. 435; Cowdry v. Hitchcock, 103 Ill. 262; Sill v. Sill, 31 Kan. 248, 1 Pac. 556; Hall v. Hall, 2 McCord Eq. (S. C.) 269, 280; Snelgrove v. Snelgrove, 4 Desaus. Eq. (S. C.) 274. 70 Cannon v. Apperson, 14 Lea (82 Tenn.) 553.

71 Evans' Appeal, 51 Conn. 435. 72 Kennedy v. Nedrow, 1 Dall. (U. S.) 415, 1 L. Ed. 202; Pigott v. Bagley, McClel. & Y. 569; Stark v. Hunton, 1 N. J. Eq. 216; Quarles v. Garrett, 4 Desaus. Eq. (S. C.) 146; Upshaw v. Upshaw, 2 Hen. & M. (Va.) 381, 3 Am. Dec. 632.

731 N. Y. Rev. Stats. 741, §§ 13, 14.

in the matter was due to the false representations of her husband's heirs as to the value of the estate."

The fact that a widow without full knowledge of her rights paid her husband's debts and controlled his estate for five months after his death, is not equivalent to an election. So where the creditors refused to give the widow information concerning the estate and there was no inventory thereof, an action brought by her to recover the legacies will not constitute an election to take them in lieu of dower unless she succeeds in recovering them.76

§ 828. Election by Estoppel.

Election by estoppel may arise where the party having the right of election and acting with knowledge of his rights and not because of ignorance, fraud or mistake, deals with the property as his own, exercises acts of ownership over it, or conveys it to another." Under the conditions just mentioned, election by estoppel will likewise arise by a widow joining in a conveyance by the executor with no stipulation in regard to dower's by an entry upon the lands or a suit for dower, from the use and enjoy

74 Akin V. Kellogg, 39 Hun (N. Y.) 252, reversing, s. c., 16 Abb. N. C. 265 (Bockes, J., dissenting).

75 Millikin v. Welliver, 37 Ohio St. 460. See, also, Churchill v. Bee, 66 Ga. 621, 632.

76 Johnston v. Duncan, 67 Ga. 61. 77 Clark V. Middlesworth, 82 Ind. 240. See, also, Matter of Smith, 108 Cal. 115, 121, 40 Pac. 1037; Benedict v. Wilmarth, 46 Fla. 535, 4 Ann. Cas. 1033, 35 So. 84; Koep v. Koep, 146 Iowa 179,

123 N. W. 174; Gusler v. Miller, 10 Lea (78 Tenn.) 90.

A widow may have relinquished her dower for a valuable consideration by contract with her husband in his lifetime, which being referred to in the will is equivalent to a provision for her in lieu of dower. But her statutory right to elect is not taken from her by such a contract.-Ex parte Wilber, 52 Wis. 295, 9 N. W. 162; Wilber v. Wilber, 52 Wis. 298, 9 N. W. 163. 78 Warren v. Morris, 4 Del. Ch. 289.

ment of the provisions under the will, and from various other acts or omissions." Election to take under the will may be presumed also from laches. 80 So, too, enjoying for a number of years the possession of property clearly intended to be in lieu of dower will bar the assertion of a claim thereto.81 But an agreement relating to the management of the estate does not amount to an election on the part of a widow; 82 and a claim to an estate to which she is not entitled, made by a widow in ignorance of the facts, is not paramount to an election.88 Where there are several co-beneficiaries, the acceptance by one of a legacy under the will does not estop the others from contesting the instrument.84

Where facts are relied upon to establish election by estoppel, such as apparent acquiescence in the provisions of the will, the inference raised may be rebutted, and even long acquiescence is not conclusive.85 Mere acquiescence without intelligent choice is not an election.86 Fraud, mistake or ignorance, as before stated, are grounds for setting an election aside;87 and the same is

79 Wake v. Wake, 1 Ves. Jun. 335; Pearson v. Pearson, 1 Bro. C. C. 292; Shaw's Devisees v. Shaw's Admr., 2 Dana (32 Ky.) 342; Clay v. Hart, 7 Dana (37 Ky.) 1, 6; Steele v. Fisher, 1 Edw. Ch. (N. Y.) 435; Wilson v. Hamilton, 9 Serg. & R. (Pa.) 424; Quarles V. Garrett, 4 Desaus. Eq. (S. C.) 146; Watkins v. Watkins, 7 Yerg. (15 Tenn.) 283; Blunt v. Gee, 5 Call (Va.) 481.

80 Blunt v. Gee, 5 Call (Va.) 481;
Cooper v. Cooper's Exr., 77 Va.
198.

$1 Rutherford v. Mayo, 76 Va.
II Com. on Wills-22

117; Penn v. Guggenheimer, 76 Va. 839; Hoggard v. Jordan, 140 N. C. 610, 6 Ann. Cas. 332, 4 L. R. A. (N. S.) 1065, 53 S. E. 220.

82 Payton v. Bowen, 14 R. I. 375. 83 Payton v. Bowen, 14 R. I. 375. 84 Floyd v. Floyd, 90 Ind. 130.

85 Butricke v. Broadhurst, 1 Ves. Jun. 171; Wake v. Wake, 1 Ves. Jun. 335; Beaulieu v. Cardigan, 3 Brown Parl. Cas. 277; Reynard v. Spence, 4 Beav. 103.

86 Sill v. Sill, 31 Kan. 248, 1 Pac. 556.

87 See § 827.

true where the widow holds the property only by consent of the heirs and not in her own right.88

§ 829. The Same Subject: Where the Widow Is Executrix.

A widow who has been named executrix in the will of her husband may offer the will for probate. There is a general rule that a trustee may assume the validity of the trust under which he acts; also that a person can not both accept and reject the same instrument, or, having availed himself of part of it, defeat its other provisions. This general rule is applicable to all instruments, wills as well as deeds. 89 The statute, however, generally allows a given period, as twelve months, within which to make an election. It would, therefore, be inconsistent with the policy of the law to apply the rules strictly to a case where a widow, for instance, had offered the will of her husband for probate within a short time after his death, so as to preclude her from thereafter demanding her statutory rights." But if a widow who has been appointed executrix sells or mortgages the property of the estate and treats it as assets, thus acting in a manner inconsistent with a claim of dower, or if the rights of third parties

88 Phelps v. Phelps, 20 Pick. (37 Mass.) 556. See, also, O'Driscoll v. Koger, 2 Desaus. Eq. (S. C.) 295, 299.

In Archer v. Barnes, 149 Iowa 658, 128 N. W. 969, it was held that a widow's possession for twenty-five years of property given her during widowhood by her husband's will, was not inconsistent with her dower interest, no occasion having arisen calling for an assertion of her statutory rights.

89 Saunders v. Richard, 35 Fla. 28, 16 So. 679.

90 Morrison v. Bowman, 29 Cal. 337; Estate of Silvey, 42 Cal. 210; Estate of Frey, 52 Cal. 658; Matter of Givin, 77 Cal. 313, 19 Pac. 527; Smith v. Olmstead, 88 Cal. 582, 22 Am. St. Rep. 336, 12 L. R. A. 46, 26 Pac. 521; Stephens v. Gibbes, 14 Fla. 331; Hill v. Hill, 88 Ga. 612, 15 S. E. 674.

Contra: Mendenhall v. Mendenhall, 53 N. C. (8 Jones L.) 287.