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liance, as he said, upon the promise above was received by each of his aunts. He rementioned.

ceived, under the will of his grandfather From the time of the probate of his and that of his grandmother a total of begrandfather's will up to the time of the tween $140,000 and $150,000. After the death of his grandmother, he did nothing to death of his grandmother he took no steps attack the will of his grandfather, but relied showing an intention to contest the will of upon the promise made by or on the part either, until May 19, 1900, which was ten of his grandmother, the day after the fu- years after the settlement of the estate of neral. After the probate of his grand- his grandfather, and nearly seven years father's will he received from his grand after the settlement of the estate of his mother, as the executrix, the legacy spoken grandmother. On the date named he adof therein, and gave receipt therefor; he al. dressed two letters of the same tenor, one so took possession of the real estate given to Mrs. Taylor and the other to Mrs. Norhim by the will, called Young's Law Build- ment, in which he states that he had been ing, and received the rents therefor for under a misapprehension and was ignorant nearly two years, and (on March 24, 1891) regarding his rights at the time his grandsold it for $20,000, and kept the proceeds. father died, and that misrepresentations had The sisters took the real estate devised to been made to him from those interested, them by the will. They commenced an ac-touching his rights and interest in his tion of partition, and the real estate was grandfather's estate, and he therefore notipartitioned between them, and each there-fied them that he denied the validity of the after treated the real estate set off to her paper writing alleged to be the last will and under the partition as her own absolute testament of his grandfather, which had property. Some of it they conveyed and been admitted to probate as a will of perdisposed of so that it passed beyond their sonal property, and stated that he contended control. They assumed and supposed that that the alleged will had never been operathe real estate given to them in the will tive in connection with the real property, was their own, as the plaintiff in error had and that his claim to the building and consented to the probate of the will, and had ground known as Young's Law Building was made no objections whatever since that time merely a one-third interest in the property to its validity, or questioned it in any way. as tenant in common with the other heirs

On the 13th of March, 1893, the grand at law of his deceased grandfather; he also mother died, leaving a will dated July 5, stated that he held himself ready to account, 1889, less than three months after the prom- upon demand, to his two aunts for the oneise alleged to have been made by her, or in third interest to which each was entitled in her behalf, to the plaintiff in error immedi- that real estate, as two of the heirs at law ately after the funeral of his grandfather. of his grandfather, in both the property and The will of the grandmother was admitted the rents and profits from the same, from to probate, by the consent of all the parties his grandfather's death; that he held himinterested, on the 17th day of March, 1893. self as ready, upon demand, to make proper The two daughters were executrices under settlement with both of his aunts for the the will, but, on objection being made by $750 note, with the accrued interest thereon, the plaintiff in error to their receiving com- which had been all paid, and was pretended missions, they waived their right to them, to have been bequeathed to him under the and performed the services without pay. will of his grandfather. Plaintiff in error By the terms of this will the two aunts and testified that he did not receive any answer the plaintiff in error were made to share to either letter, nor any communication from equally in the estate of the grandmother, either of his aunts, and soon thereafter he which turned out to amount to something instituted a suit in ejectment, and on June over $200,000, the grandmother having, dur- 9, 1900, filed a caveat in the probate court ing her lifetime, as is stated, disposed of a against the validity of the will, as a will of large amount of the personal property be- personalty. The plaintiff in error there queathed to her under the will of her hus- charged that the will was procured by the band, in charities. When the terms of the fraud, undue influence, and duress of Mrs. will of the grandinother were read to the Taylor and her husband, and that the tesplaintiff in error he testified on the trial tator had no testamentary capacity when below that he then said, “So far as I am the paper was signed by him.

. Mrs. Taylor concerned I have got the worst of and I and Mrs. Norment answered this caveat, have got to stand it. I never made but one and at the same time filed a petition asking mistake in my life, and that was when I for probate of the will of their father, of held still once before, and now I have to December 7, 1887, as a will of real estate, stand still."

under the act of Congress of June 8, 1898, He received under the will of his grand-above mentioned. To this petition the plainmother $84,256.87, being the same share as 'tiff in error made answer.

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Pending proceedings in the probate court | corded. Thereupon an order or decree was on this caveat of the plaintiff in error, and rendered affirming the decree of April 26, the petition for the probate of the will as 1889, admitting the grandfather's will to one of real estate, Mrs. Taylor, one of the probate as and for a will of personalty, and aunts, died, January 22, 1901, leaving a also admitting it now to probate as and will by which she devised all of her estate for a will of real estate, under the act of and property to her husband, subject to the Congress of 1898. The court of appeals, havannuity to her son, and nominated her hus- ing affirmed this decree, the case has come band as executor. This will was duly ad- to us by writ of error on the part of the mitted to probate on the 18th day of March, plaintiff. 1901, and letters testamentary were issued to Dr. Taylor (the husband.) Thereupon Messrs. Wilton J. Lambert and D. W. he filed his petition in these proceedings, Baker for plaintiff in error. wherein he stated that the property devised Messrs. A. S. Worthington and T. Perand bequeathed to him by his wife was in cy Woodward for defendants in error. fact to be held in trust by him for the benefit of his son and his children, with the Mr. Justice Peckham, after making the reservation of certain rights and powers foregoing statement, delivered the opinion for himself, and he asked that the parties of the court: named by him be made parties to the present It is true that the plaintiff in error has proceedings in place of Mrs. Taylor, and received out of the estates of his grandthey were accordingly made such.

father and grandmother only between the The court then determined that issues sum of $140,000 and $150,000, while an should be formulated between the parties to equal division of the estate of his grandbe tried in the probate court with a jury, father, between himself and his aunts, would under the act of June 8, 1898, and there have given him a much larger sum. What were six issues thus drawn: The first was was the reason, if any, for this discriminain regard to the question whether the plain- tion, the record does not show. tiff in error was estopped to deny the valid- When the will of his grandfather was read ity of his grandfather's will as a will of the plaintiff in error was perfectly aware of personal property; the second, whether he its contents. He was a young man, nearly ,

a was estopped to deny its validity as one twenty-four years of age, married, and there disposing of real property; third, was a is no proof that he was not of ordinary inquestion as to the testamentary capacity of telligence and capacity. There is no prethe grandfather; the fourth, whether there tence in the evidence that there was any was undue influence; fifth, whether there fraud or misrepresentation connected with was fraud in obtaining the will from the obtaining his consent to the probate of the grandfather; and sixth, whether there was will, without opposition or contest on his duress.

part. By his own statement he understood It was stipulated that the question of the distinctly from one of his aunts, after the application of the statute of limitations, reading of the will, that it substantially cut which was raised by the caveats and peti- him off; that he would receive under the tions, and all other questions, should be re- will a devise of the Young Law Building, served for future determination by the worth about $20,000, and a bequest of the court. Charles H. Utermehle was made note of $750 and accrued interest, amountplaintiff for the purpose of the trial, and all ing to not quite $3,000, and that that was the other parties were made defendants. On all that was given him under the will. He March 17, 1902, a jury was impaneled and knew it when the will was read. There is the trial commenced. The plaintiff proceed- not a particle of evidence that he did not ed to give his testimony, addressed to the know that, if there had been fraud or undue question of estoppel and to an explanation influence or duress in obtaining the alleged of his delay in asserting his alleged rights. will from his grandfather, or if the latter When the counsel for plaintiff in error an- was without testamentary capacity, such nounced their testimony on the question of will would be void. The trial court, indeed, estoppel closed, they were about to proceed observed that he admitted he knew what his with their testimony on the other issues, legal rights were at the time of the death but counsel for the defendants objected, and of his grandfather, if there were no will. asked the court to direct a verdict against He was ignorant only of any evidence on the plaintiff on the issue of estoppel, and which to base a contest against the proof of against the plaintiff upon all the other the will. He says he did not know at that issues. After consideration the court in time that fraud or undue influence or duress structed the jury to render a verdict against had been exercised, in order to obtain the the plaintiff on each and all the issues, will, nor did he know that his grandfather and a verdict was thus rendered and re- 'lacked testamentary capacity to execute a will, but there is no evidence whatever that not exhibited even reasonable diligence to

were used or representation learn any facts as to the will of his grandmade to prevent him from ascertaining father, and that his alleged ignorance of what the facts really were. The reason for the law was the only excuse which had the his not contesting was, as he said, his reli- semblance of sufficiency. ance on the promise alleged to have been We have, therefore, his consent given in made by or on behalf of his grandmother to April, 1889, to the probate of the will of make him equal by her own will. On ac- his grandfather; his taking the legacy procount of this promise he did not contest the vided for under that will; his taking poswill. By reason of his consent, his aunts, session of the real estate devised to him by the other heirs at law of his grandfather, that will; his receipts of its rents and profproceeded to make partition of the real es- its, and his subsequent sale thereof for $20,tate given to them by the will, and to use, 000, and the retention of that sum for his convey, and dispose of it as if it were ab- own purposes; his consent to the probate of solutely their own property. His grand- his grandmother's will, although it clearly mother received the personal property be- does not fulfil the promise he alleges was queathed to her by the will, and disposed made on her behalf after the death and of large amounts of it prior to her death funeral of his grandfather; no movement by gifts to charity and otherwise. It would is made on his part or sign of discontent be impossible to place the other heirs in the given for about seven years thereafter, and same position that they were in at the time then he writes letters and files his caveat of the death of the grandfather. The two and proceeds, as already stated. We have the aunts, if that will had not been proved, total lack of diligence in the attempt even would have received their share of the per- to ascertain facts. After his grandmother's sonalty instead of almost the whole of it death he says that he was still ignorant going to the mother. Under the will, how of the facts which he alleges he has since ever, the mother took the personalty and discovered of the existence of fraud in obspent or disposed of large portions of it, so taining the will from his grandfather, and that she died possessed of only about $200,- of the latter's lack of testamentary capac000, and the two aunts and the plaintiff in ity, and the existence of duress and undue error have received an equal share of that influence under which the will was obtained; sum. The aunts would have received a much and he also avers that he was ignorant of larger share of the personalty had it not the law at the time that he consented to the been for the will of their father. As is probate of his grandfather's will, that he stated by the court of appeals in the opin- could not take a devise or bequest under ion delivered in this case:

that will, and at the same time seek to pre"It is impossible to tell from the record vent its probate, or to set it aside as an inbefore us whether they (the aunts of the valid instrument. The trial court found plaintiff in error] fared any better with the that right after the death of his grandwill than they would have fared without it; mother he had the advice of counsel, and if but is is very evident that, by the bequest he had been ignorant of any rights he would of the entire personalty by the will to their have been informed of the same. mother, they lost a valuable interest to The plaintiff in error asserts that he gave which they cannot now be restored. It is consent to the probate of his grandfather's impossible to restore the original situation, will because of the promise of his grandand the attempt to do so would be wantonly mother to rectify, by her will, the injustice to question titles that have long since ac-resulting from the will of his grandfather, crued, including the very title which the and when he found that the promise was caveator has himself disposed of to the broken, on reading the will of his grandYoung Law Building."

mother, after her decease, he then waited Of the witnesses to the grandfather's will, seven years before proceeding to attack the two are dead and the third paralyzed. From will of his grandfather, admitted to probate the date of the probate of the grandfather's in 1889. The court of appeals doubted the will in April, 1889, down to the 19th of May, existence of the promise, and said it was 1900, the plaintiff in error took no steps to probably only a promise that he should wards a contest. On that date he wrote the share equally in his grandmother's estate, letters to his aunts, above referred to, and which his grandmother fully performed. He therein he says that misrepresentations were says that after the death of his grandmade to him as to his rights and interest in mother he was very ill for six weeks, and the estate. We find a total absence of all that for two years he was not in good health, proof as to any such misrepresentations, and that he remained ignorant of the fraud either as to his rights or his interest in the and undue influence and duress and mental estate of his grandfather. The trial court incapacity of his grandfather until a short also found that the plaintiff in error had' time before the filing of the caveat or the

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writing of the letters. He does not contend niere (Hunt v. Rhodes) 1 Pet. 1-15, 7 L. ed. that, if these facts existed, he did not know 27–33; Bank of United States v. Daniel, 12 that, if proved, they would avoid the will. Pet. 32–55, 9 L. ed. 989–999; United States,

He insists, however, that the law pertain- v. Hodson, 10 Wall. 395–409, 19 L. ed. 937ing to the taking of the legacy or devise 940; Lamborn v. Dickinson County, 97 U. S. under a will, which prevents the assertion of 181–185, 24 L. ed. 926–928; Snell v. Atlantio the invalidity of the same will, ought not to F. & M. Ins. Co. 98 U. S. 85–92, 25 L. ed. bind him, because he was ignorant that 52-55; Allen v. Galloway, 30 Fed. 466, such was the law; in other words, the law where Hammond, J., in reviewing the deci. should not cover his case because he was sions of this court, says: "Whatever rule ignorant that it was the law.

may prevail elsewhere, there can be in the We know of no case where mere igno-equity courts of the United States no relief rance of the law, standing alone constitutes from a mistake of law.” Drake v. Wild, 70 any excuse or defense against its enforce- Vt. 52–59, 39 Atl. 248; in that case the ment. It would be impossible to administer court said (p. 59, Atl. p. 251): "That ignothe law if ignorance of its provisions were rance of the law does not excuse a wrong a defense thereto. There are cases, undoubt- done or a right withheld. That relief from edly where ignorance of the law, united with liabilities under the law, arising from a fraudulent conduct on the part of others, or known state of facts, will be denied. But to mistakes of fact relating thereto, will be re- these general rules there are exceptions, as garded as a defense, but there must be some where there is a mistake of law caused by element, other than a mere mistake of law, fraud, imposition, or misrepresentation. We which will afford an excuse. In addition, think it will be found that, in most of the there ought to be no negligence in attempt cases cited in these notes and in Pomeroy, ing to discover the facts. The ignorance of the party seeking relief was led into error the plaintiff in error as to his alleged rights, by the action of the other party to a transit would seem, was an ignorance of the ex- action, as in contracts and releases.” Light istence of alleged facts regarding the pro- v. Light, 21 Pa. 407-412; Storrs v. Barker, curement of the will of his grandfather; | 6 Johns. Ch. 166, 10 Am. Dec. 316; Whitbut he does not pretend that, had he known well v. Winslow, 134 Mass. 343–345; Alaof their existence, he was ignorant of their bama & V. R. Co. v. Jones, 73 Miss. 110, effect as a ground for refusing probate of 55 Am. St. Rep. 488, note, 19 So. 105. the alleged will. The ignorance of evidence Exceptional cases where relief has been to substantiate what he knew were his rights given have been, as stated, where there was is a very different thing from ignorance of fraud or imposition upon the individual by the rights themselves, as is stated so clearly the person seeking to avail himself of the by the court of appeals; and so it rests in contract of the other party. In this case this case that the only obstacle to the en there was, as we have said, neither fraud forcement of the rule of estoppel rests in nor imposition, misrepresentation; the alleged ignorance of the plaintiff in er- plaintiff in error was not advised that, alror that such a rule existed. Although his though he took under the will, he could ataction in consenting to the probate of the tack it. It is a simple, bald case of an alwill of his grandfather was not the result leged mistake or misapprehension, on the of fraud or misrepresentation, and the other part of plaintiff, of what the law was parties to this litigation cannot be placed under certain circumstances, with no repback in the position they occupied when the resentation or persuasion on the part of will was admitted to probate, and this con- others to cause him to act upon such misdition is the result of the action of the taken assumption. plaintiff in error in consenting to the pro- As to what is the law relating to a party bate of the will, yet he now contends, not taking the benefit of a provision in his favor withstanding all this, that he must be per- under a will, there is really no foundation mitted, after the lapse of eleven years, to to dispute the proposition that he thereby attempt to defeat the will of his grandfather is precluded from, at the same time, attackbecause he did not know the law applicable ing the validity of the very instrument unto the case in hand. This is a totally inad- der which he received the benefit. missible proposition.

In Hyde v. Baldwin, 17 Pick. 303, 308, it It has been held from the earliest days, was held that one who accepted the benefiin both the Federal and state courts, that cial interest under a will was thereby barred a mistake of law, pure and simple, without from setting up any claim which would dethe addition of any circumstances of fraud feat the full operation of the will. Drake v. or misrepresentation, constitutes no basis Wild, 70 Vt. 52, 39 Atl. 248, holds the same for relief at law or in equity, and forms no doctrine. In that case a party was held to excuse in favor of the party asserting that be estopped from asserting her title to a he made such mistake. Hunt v. Rousma-' trust fund disposed of by the will, because


she had accepted the provisions of the will cannot be an election to take the one and in her own favor. In Branson v. Watkins, reject the other." 96 Ga. 55, 23 S. E. 204, it was held that one We think the case has no application to who took an estate under a will was thereby the one at bar, and is well distinguished in the estopped from, at the same time, denying its opinion of the court of appeals in this case. validity as a will, or from questioning the In Watson v. Watson, 128 Mass. 152, the jurisdiction of the court admitting it to pro- general doctrine that any person taking a bate, or the regularity of the probate pro- beneficial interest under a will thereby conceedings. In Smith v. Smith, 14 Gray, 532, firmed it, and could not set up any right it was held that the acceptance of a devise or claim of his own which would defeat or estops the devisee to set up a title in oppo- in any way prevent the full operation of sition to the will, at law as well as in equity. every part of the will, was recognized and In Fry v. Morrison, 159 Ill. 244, 42 N. E. affirmed, but it was said (page 155): 774, it was held that one who took a bene- “An election made in ignorance of mateficial interest under a will was thereby es- rial facts is, of course, not binding, when topped to set up any right or claim of his no other person's rights have been affected own, though otherwise well founded, which thereby. So, if a person, though knowing would bar or defeat the effect of any part the facts, has acted in misapprehension of of the will. And in Madison v. Larmon, 170 his legal rights, and in ignorance of his Ill. 65, 82, 62 Am. St. Rep. 356, 48 N. E. obligation to make an election, no intention 556, it was again held that one who takes to elect, and consequently no election, is to under a will cannot contest it as an heir at be presumed.” law of the devised property. So, in Fisher Regarding the legatee who took a legacy v. Boyce, 81 Md. 46, 53, 31 Atl. 707, the under the will, the court continued (at court said: “It is a maxim in a court of p. 157) as follows: equity not to permit the same person to hold "But as to Edward, the case stands difunder and against a will.” This maxim was ferently. Immediately upon being informed equally appropriate to the jurisdiction and of the rule of law, little more than a year practice of courts of law, and where one after the probate of the will, and before the claimed under a will he must give it effect executor had settled any account in the as far as he can, and he will be estopped probate court, or the position of any other from denying its validity and genuineness. person had been changed, he returned his Waters's Appeal, 35 Pa. 523; Thrower v. legacy to the executor, and gave him notice Wood, 53 Ga. 458.

that he elected not to take it. He cannot

. When, in addition to the fact that he therefore be held to have made such an electook a benefit under the will, a party has tion as should deprive him of the right, acquiesced in its validity for many years, under his independent title, to partition of and the opposing party in interest has acted the whole estate, not excepting the parcel upon such consent and acquiescence, and has claimed by the respondent.” So changed his position on that account In this case the position of other parties that he cannot be restored to it, and where to this litigation has most materially witnesses have, in the meantime, died, the changed, as has already been shown (the reason for the rule upon which an estoppel particulars of which need not be repeated), is founded is thereby greatly strengthened. while the plaintiff in error has been also

Two cases, among others, were cited by guilty of extreme negligence even in atcounsel for plaintiff in error, in the court tempting to discover what he alleges are below, and are referred to in the opinion facts. We are satisfied that the piaintiff in of the court of appeals, and they are also error is estopped from now contesting the cited here for the purpose of showing his will, and that great injustice would result right to maintain these proceedings to set from the overturning of the principle adaside the will of his grandfather. They are: judged in so may cases. Spread v. Morgan, 11 H. L. Cas. 587, de- We are of opinion the case has been rightcided in 1864; Watson v. Watson, 128 Mass. ly decided, and the judgment of the Court of 152, decided in 1880.

Appeals of the District of Columbia is afIn the English case it was held that one firmed. remaining in possession of two estates, under titles not consistent with each other, there

(196 U: S. 466)

JAMES C. CORRY, Plff. in Err., by afforded no decisive proof of an election under which title to take. It was there held

MAYOR AND COUNCIL OF BALTIMORE that the rule was, "that if a party being

et al. bound to elect between two properties, not being called upon so to elect, continues in Constitutional lawadue process of lavo the receipt of the rents and profits of both,

taxation of nonresident stockholder. such receipt affording no proof of preference' 1. Due process of law is not denied a nonresi

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