Cameron v. Cameron

Section 5963 , Rev. Stat., provides that a widow *160should have one year from date of service of citation to make her election. In the case of Bowen v. Bowen et al., 34 O. S. 164, the court held the year within which the election under said section must be made begins to run from the date of the service of a citation. In this case no citation having been served upon her, time did not begin therefore to run against her right to elect. But do the facts show an actual election as will estop her from claiming under the law ?

In this connection it was argued by counsel for the widow that the creditors were not prejudiced, damaged or deceived bj’ anything she has done, nor have they been induced to change their status to the estate, and hence the doctrine of an equitable estoppel does not apply.

It must be conceded that for the application of the doctrine of equitable estoppel, there must generally be some intended deception in the conduct or declaration of the party to be estopped, or such gross negligence on his part as to amount to constructive fraud, by which another has been misled to his injury.

There are cases, however, where a party may be concluded from asserting his original rights to property, in consequence of his act or conduct, in which the presence of fraud, actual or constructive, is wanting.

As in a case where one of two innocent parties must suffer from the negligence of another, he *161through whose agency the negligence was occasioned will be held to bear the loss; and where one has received the fruits of a transaction, he is not permitted to deny its validity, whilst retaining its benefits. While such cases are not governed by the doctrine of equitable estoppel, the same result is attained. That this doctrine may be applicable in cases of this kind is fully recognized in Thompson v. Hoop, 6 O. S. 480; Stilley v. Folger, 14 O. 610; Stockton v. Wooley, 20 O. S., 184; Millikin v. Welliver, 37 O. S. 460 ; Nimmons v. Westfall, 33 O. S., 213.

Are her acts conclusive ? The rents belong to the heirs. Overturf v. Dugan, 29 O. S., 230. She collected and used them for the support of herself and minor children. There is no evidence that she collected them as the sole legatee under the will, nor do the circumstances permit us to draw such conclusion.

There was no personal property to pay debts. She had received $3,000 on policies of insurance on the life of her husband; out of this amount she paid debts against the estate amounting to $1,600. Whatever she did in this respect was done as the executrix of the estate. An estoppel depends on her conduct as widow, and not as executrix. The giving of the mortgage to the building association is a circumstance tending to prove that she was acting under the will, yet we do not think it conclusive. Her acts must be *162done with a full knowledge of her rights and the condition of the estate.

In order that the acts of a widow shall be regarded as equivalent to an election to waive dower, it is essential that she act with a full knowledge of all the circumstances and of the party’s rights; it must be a deliberate and intelligent choice. Milliken v. Welliver, 37 O. S. 460; Anderson’s Appeal, 36 Penn. St. 476; Bradford v. Kents, 43 Penn. St. 474.

It is a general rule that one is not bound to elect until he is fully informed of the relative value of the things, between which he is to choose, and an election before the circumstances necessary to a judicious and discriminate choice are ascertained, is not obligatory. Pinckney v. Pinckney, 2 Rich. (S. C.) Eq. 219-238 ; Upshaw v. Upshaw et al., 2 Hen. & M. (Va.) 381, 390-393; Reaves v. Garrett's Admr., 34 Ala. 558.

It can hardly be claimed that, had she known at ¡the time the condition of her husband’s estate, and liad been cited to appear before the court to make her election, she would not have declined to take under the will, for we may assume that she would have made an election most beneficial to herself.

In the case of Hall v. Hall, 2 McCord (S. C.) Ch. 269, the court went so far as to say where the widow had made her election, and had i'eceived benefits *163under the will, she was allowed to retract and resort to her legal rights when the estate' had turned out differently from what it was believed and stated to be at the time of the election, prematurely made. And this was held to be allowable in Adsit v. Adsit, 2 Johns. (N. Y.) Ch. 448.

We conclude, therefore, that the acts relied on as an election do not estop her.