H

are involved, it will be ruled that she has manifested an election to take under the will."1 Where a widow offered her husband's will for probate and qualified as executrix thereof, and for nine years and until her death remained in possession of the property and acquiesced in the disposition made by her husband, the administrator of her estate, against the consent of her real representatives, was not permitted to make an election.92 The principle is, courts will not disturb things long acquiesced in by families regarding which those most interested during their lives had never raised a question.93

$830. The Same Subject: Effect of Acceptance of Benefits Under Will.

The general rule is that one who accepts benefits under a will is estopped to deny it; this applies to all legatees and devisees. This rule, however, is subject to qualification. If the beneficiary accept benefits under a will without knowledge of the fact of his right to elect between the benefits so conferred and his right to certain property of the estate on account of a claim dehors the will; or, if he be induced by fraud or deception to accept the benefits given him by the will, he may revoke his election and claim under the law, provided, however:

91 Churchill v. Bee, 66 Ga. 621, 632.

92 Hoggard v. Jordan, 140 N. C. 610, 6 Ann. Cas. 332, 4 L. R. A. (N. S.) 1065, 53 S. E. 220.

93 Tomkyns v. Ladbroke, 2 Ves. Sen. 593; Dewar v. Maitland, L. R. 2 Eq. 834.

94 Herbert v. Wren, 7 Cranch (U. S.) 370, 3 L. Ed. 374; Smith v.

Guild, 34 Me. 443; Hyde v. Bald-
win, 17 Pick. (34 Mass.) 303; Van
Duyne v. Van Duyne's Exr., 14
N. J. Eq. 49; Syme v. Badger, 92
N. C. 706.

The right to repudiate the election must be asserted before the rights of innocent third persons have intervened. In re Peaslee's Will, 73 Hun 113, 25 N. Y. Supp. 940.

(1st) That the rights of innocent third persons will not thereby suffer; (2d) that there has been no unreasonable delay, and (3d) that he returns to the estate all benefits received. The mere fact, however, that the beneficiary accepts a testamentary gift under protest or under a claim that it is only a part of what the law entitles him to, is wholly immaterial and will not give him the right thereafter to repudiate his election."

The requirement that the beneficiary repay all benefits received or bring the same into court is not satisfied by an allegation in his petition that he is ready and willing to pay into court, or to the executor any amounts which he has received under the will or have the same deducted from his share if the will be set aside.97 The defense of election by estoppel, however, is an affirmative defense and can not be raised by demurrer unless the facts constituting such defense affirmatively appear on the face of the petition.98

§ 831. What Law Governs Election in Case of Conflict.

There is some conflict of authority as to what law governs the construction of a will wherein a husband has made a testamentary gift in favor of his wife, whether such gift, in the absence of express intention, is to be considered in lieu of dower. In some jurisdictions, if a husband makes a testamentary provision for his wife, it is presumed to be in lieu of dower unless he expressly states it is to be in addition thereto; in others, and generally, the widow may take both her dower and under the will, unless the testator express a contrary intent. The question of construction of the will may therefore be important since a testator may execute his will under the law of his domicile and thereafter remove to another jurisdiction where the law is different. The general rule is, as to personalty, that the law of the domicile of the

97 Stone v. Cook, 179 Mo. 534, 64 L. R. A. 287, 78 S. W. 801.

Contra: In Medill v. Snyder, 61 Kan. 15, 78 Am. St. Rep. 306, 58 Pac. 962, the legatee who accepted the benefits offered to restore what had been received, and as

no one could be prejudiced or be loser by the conduct of the beneficiary, the mere offer was deemed sufficient.

98 Stone v. Cook, 179 Mo. 534, 64 L. R. A. 287, 78 S. W. 801.

testator at the time of his death governs the construction of his will.99 The authorities, however, are not unanimous.1 As to real property and rights therein, the law of the situs prevails, irrespective of the domicile of the testator. But with regard to the intention of the testator as drawn from the provisions of the will, the rule is that such intention is to be determined by the law of the domicile of the testator, there being a conflict, however, as to whether it shall be that of his domicile at the time of the execution of the will or of his domicile at the time of his death.

99 See §§ 273, 275, 276.

1 See § 274. See, also, Martin v. Battey, 87 Kan. 582, Ann. Cas. 1914A, 440, 125 Pac. 88; Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354.

2 See §§ 269, 271.

The effect of a conflict of laws upon provisions in lieu of dower is illustrated by a case in Massachusetts. A testator domiciled in Massachusetts died, leaving real estate in that State and in Rhode Island and Minnesota. By a will made while domiciled in Rhode Island he had made provision for bis widow, without expressing it, however, to be in lieu of dower. Under the laws of Rhode Island and Minnesota it is provided that a widow may have her dower although provision be made for her in the will, unless a contrary intention be indicated in the will. But under the Massachusetts statute, "a widow shall not be entitled to her dower in addition to the

provisions of her deceased hus-
band's will, unless such plainly
appears to have been the intention
of the testator." It was decided
that the Massachusetts act did not
apply to land out of that state, and
that upon the sale of the lands in
Minnesota the widow was entitled
to one-third of the proceeds; but
that she must contribute out of
these proceeds with the legatees
under the will to the payment of
the debts secured by mortgage
upon the Massachusetts lands.-
Staigg v. Atkinson, 144 Mass. 564,
12 N. E. 354; Mass. Pub. Stats.,
(1882) ch. 127, § 20.

But see, in a case where the
domicile was New York, and the
land devised was situated in Vir-
ginia, it was held that the right
of the widow to dower in land in
Virginia should be determined by
the rule in New York, rather than
by the rule in Virginia.-Bolling v.
Bolling. 88 Va. 524. 14 S. E. 67.

3 See § 272.

As to the effect of an election, however, no matter in how many jurisdictions the property may be situated, an election in one jurisdiction is binding upon the electing party in all other jurisdictions. The rule is that one can not claim both under a will and against it. If a second election was the same as the first, it would be useless; whereas, if it was different, one of the principles upon which the doctrine of election is founded would be violated. And, generally, the proper jurisdiction wherein