Farmington Savings Bank v. Curran

Andrews, C. J. Sarah Cassidy died in 1883, leaving four adult children, her only heirs. By her will she devised to them certain lands, a part of which she owned in fee, and a part of which belonged to the children in common as the heirs of a deceased brother who had died intestate. She *347 believed herself to be the owner of all the land and devised it specifically to her children, directing how it should be divided between them. The children all believed their mother to be the owner of all the land. To her daughter Catherine E. Curran, who is the principal defendant in this case, she devised a strip of the land fifty-three feet in width. Mrs. Curran accepted the devise and took possession of the land. By this devise Mrs. Curran obtained more of the land than she would have had in any other way. Had the will of Mrs. Cassidy been held to operate only on the land that she owned in fee, then Mrs. Curran would have taken nothing under it; she would have taken only one fourth of the land which had belonged to the deceased brother, being a little less than thirty feet. If there had been no will at all, then Mrs. Cur-ran would have inherited from both her mother and her brother a trifle over forty feet of the land. By her will the said testatrix, Mrs. Cassidy, devised to her daughter Mary A. Sargeant a piece of the same land, thirty-eight and one half feet wide. Mrs. Sargeant died in 1884, intestate, and this piece of land descended to her two minor sons, and was by lawful order of the Court of Probate mortgaged to the plaintiff for the benefit of those minors, by their guardian; and the money raised by that mortgage has been applied for that purpose. So that in equity the plaintiff stands in precisely the same relation to the last-mentioned piece of land as did Mrs. Sargeant. Her title to it has come to the plaintiff. In 1890 Mrs. Curran learned the true state of the title to the land which her mother had by her will disposed of,—that her mother owned only a part of it, and that she herself, and her brothers and sisters, owned the other part. Since that time Mrs. Curran has conveyed away the land which was devised to her by her mother’s will, and has appropriated the avails to her own use; she has obtained deeds from her brother and sister of their interest in the land devised to Mrs. Sargeant. These deeds give to Mrs. Curran such title to that land as the grantors inherited from their brother. And she has paid the interest on the plaintiff’s mortgage, semi-annually, to 1896. *348 The title so acquired, joined with her own, Mrs. Curran now sets up to defeat the plaintiff. The question presented may, then, be stated in this way: May Mrs. Curran, while keeping the avails of the devise to herself in her mother’s will, set up a title inherited from her brother to defeat the provisions of her mother’s will in favor of Mrs. Sargeant? The plaintiff now owns the title which Mrs. Sargeant had in the land sought to be foreclosed. In her answer to the complaint Mrs. Curran says that the plaintiff is not entitled to have the foreclosure it claims, because the said minor sons of Mrs. Sargeant had no title in the land mortgaged. If they had no title to that land it is because their mother, Mrs. Sargeant had none. In disputing the claim of the plaintiff, Mrs. Curran denies that her sister, Mrs. Sargeant, took anything under the will of their mother. The Superior Court sustained this claim of Mrs. Curran in part. We think this was error. It is a strong case for the application of the doctrine of election. “ 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 hot 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.” Hyde v. Baldwin, 17 Pick. 303, 308; Smith v. Smith, 14 Gray, 532; Watson v. Watson, 128 Mass. 152, 154; Whiting's Appeal, 67 Conn. 379, 389; Whittemore v. Hamilton, 51 id. 153, 160; Hall v. Pierson, 63 id. 332, 345 ; Carter's Appeal, 59 id. 576, 587; Weeks v. Patten, 18 Me. 42; Smith v. Guild, 34 id. 443, 447; Hamblett v. Hamblett, 6 N. H. 333; Drake v. Wild, 70 Vt. 52, 56; Brown v. Ricketts, 3 Johns. Ch. 553; Havens v. Sackett, 15 N. Y. 365; 1 Woerner on Amer. Adm. p. 500; Pomeroy’s Equity, § 447; Schley v. Collis, 47 Fed. Rep. 250; 2 Red. on Wills, p. 351; 2 Jar. on Wills, p. 1; Kirkham v. Smith, 1 Ves. Sen. 258; Thellusson v. Woodford, 13 Ves. Jr. 209; Whistler v. Webster, 2 id. 367; Birmingham v. Kirwan, 2 Sch. & Lef. 444; In re Vardon's Trusts, *349 L. R. 28 Ch. Div. 124; Cooper v. Cooper, L. R. 6 Ch. App. 15. Counsel for Mrs. Curran argue that as at the time of the distribution she had no knowledge of her brother’s title in the land, she could not make any election. They say election can only be made when there is full knowledge of all the facts. But election need not be made in a moment of time, nor need it be made in words. Since 1890 Mrs. Curran has known all the facts. Since that time she has parted with the land devised to her by her mother’s will, and kept the proceeds ; such rights in the mortgaged land as her brother and sister inherited from her brother William, she had procured to be conveyed to her. At the same time she has recognized the plaintiff’s right in the land, by paying the semi-annual interest on its loan. With these facts in the record it is pretty difficult to escape the conclusion that Mrs. Curran made an election. But it is not essential to discuss this. Election does not require, in all cases, a surrender, nor does it work a forfeiture. It is not an unbending rule. It is a rule that springs from manifest principles of equity, intended to do justice to all parties concerned. It may be considered as pretty well settled that the doctrine of election is as well satisfied by compensation as by forfeiture. In that way justice is done to all. The disappointed legatee may say to the devisee: You are not allowed by a court of equity to take from this testatrix’s estate that which you would otherwise be entitled to, until you have made good to me the benefit she intended for me. 1 Pom. on Eq. Juris. § 517; 2 Beach on Mod. Eq. 1096; Rogers v. Jones, L. R. 3 Ch. Div. 688 ; Piekersgill v. Rodger, L. R. 5 id. 163, 173; Roe v. Roe, 21 N. J. Eq. 253; Van Dyke's Appeal, 60 Pa. St. 481; Sandoe's Appeal, 65 id. 314; Estate of Delaney, 49 Cal. 76; Wilbanks v. Wilbanks, 18 Ill. 17 ; Marriott v. Badger, 5 Md. 306. We are of the opinion that this is the correct principle to be applied in a case like the present one: that Mrs. Curran may not assert the title which she claims to the land which was distributed to Mrs. Sargeant, except by making good *350 Mrs. Sargeant’s claim to the land, that is, by making compensation to the plaintiff; because in equity the plaintiff stands to this land in the right of Mrs. Sargeant. The reasons of appeal do not refer in terms to the doctrine of election, but treat the conduct of Mrs. Curran as calling for the application of that of estoppel in pais. But election is analogous to estoppel. It is hardly more than one kind of estoppel, and as all the facts upon which the equities of the case are to be adjusted are fully found, we do not think that a mere misnomer of the ground upon which the appellant relies ought to prevent us from doing justice between the parties. There is error in the judgment of the Superior Court, and it must be set aside. The plaintiff is entitled to have a foreclosure of the whole of the land mortgaged to it, being the whole of lot No. 3, and possession of the premises as prayed for in the complaint. The case is remanded for a judgment to be rendered in conformity to this opinion. In this opinion the other judges concurred.