Harber v. Harber

Hines, J. (After stating the foregoing facts.) Did the unsuccessful and fruitless prosecution of her equitable petition, to have dower assigned to her in the lands which the testator had conveyed to his children, preclude the widow from afterwards recovering the legacy bequeathed her by her husband in his will? This court held that she was not entitled to dower in these lands. Harber v. Harber, 152 Ga. 98 (108 S. E. 520). So she failed to have dower awarded her therein. Undoubtedly “a legatee taking under the will must allow, as far as he can, all the provisions of the will to be executed. Hence, if he has an adverse claim to the will, he will be required to elect whether he will claim under the will or against it.” Civil Code (1910), § 3910. It is taking, and not an abortive attempt to take, which requires the legatee to give effect to all the provisions of the will. The doctrine of election is based upon the salutary principle, “that he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it.” Miller v. Cotten, 5 Ga. 341; McFadden v. Dale, 155 Ga. 256 (116 S. E. 596). The mud-sill of this principle is, that the testator must bestow by his will a benefit upon another, and the latter must accept the benefit. Until acceptance of the benefit, this doctrine does not come into play against the legatee. Furthermore, a case of election only arises when a person is entitled to one of two benefits to each of which he has the legal title, but to enforce both would be uneonscientious and inequitable to others having claims upon the same property or fund. Civil Code (1910), § 4609; Lamar v. McLaren, 107 Ga. 591 (34 S. E. 116). In this case the widow was not entitled to one of two benefits, for the simple reason that her husband had died seized and possessed of no lands of which she was dowable, but had conveyed all of his lands by deed to his children. Undoubtedly, if the testator had died seized and possessed of these lands, so that his widow could have obtained dower therein, then she would have [277] been compelled necessarily to elect between her right to dower and the legacy given to her in the will of her husband. Worthen v. Pearson, 33 Ga. 385 (81 Am. D. 213). Inasmuch, however, as she was not entitled to'dower, because her husband died seized and possessed of no lands, her election to take dower was not conclusive. Her misconception of her rights in this matter and her attempt to secure dower did not constitute an election which would bar her from her election to recover upon an inconsistent right. The fact that a party misconceives his right, or through mistake attempts to exercise a right to which he is not entitled, or prosecutes an action based upon a right which he erroneously supposes he has, and is defeated because of such error, does not constitute a conclusive election, and does not preclude him from thereafter prosecuting an action based upon such inconsistent right. 20 C. J. 21, § 17. An election can exist only where there is a choice between two or more inconsistent remedies actually existing at the time the election was made. Zimmerman v. Harding, 227 U. S. 489 (33 Sup. Ct. 387, 57 L. ed. 608); Bistline v. United States, 229 Fed. 546 (144 C. C. A. 6); Todd v. Interstate Mortgage Co., 196 Ala. 169 (71 So. 661); Capital City Bank v. Hilson, 64 Fla. 206 (60 So. 189, Ann. Cas. 1914B, 1211). The proper remedy of a party is hot waived where in fact or in law only one remedy exists and a mistaken remedy is pursued. American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116 (47 So. 942, 16 Ann. Cas. 1054). The doctrine of election applies only when the’ party in fact has two or more remedies. If it be determined that there is but one, his adoption of another is not held to be an election. Wells v. Western Union Tel. Co., 144 Iowa, 605 (123 N. W. 371, 138 Am. St. R. 317, 24 L. R. A. (N. S.) 1045); Thomas v. Zahka, 164 N. Y. Supp. 193 (99 Misc. 333). In Henry v. Herrington, 193 N. Y. 218 (86 N. E. 29, 20 L. R. A. (N. S.) 249), the court said: “Any step or action taken by her, which was fruitless because proceeding upon a misconception of the rights which the law gave her, left her unaffected as to any legal remedy which she did possess.” In Bunch v. Grave, 111 Ind. 351 (12 N. E. 514), the court well'said: “A party who imagines he has two or more remedies, or who misconceives his rights, is not to be deprived of all remedy because he first tries a wrong one.” In Kinney v. Kiernan, 49 N. Y. 164, the court said: “The institution by a party [278] of-a fruitless action, which he has not the right to maintain, will-not preclude him from asserting the rights he really possesses.” The doctrine of election of remedies has no proper application under the facts of this case. The essential element of that rule is that there must have been a right of choice between two remedies which are inconsistent with each other. Bierce v. Hutchins, 205 U. S. 340, 347 (27 Sup. Ct. 524, 51 L. ed. 828); Zimmerman v. Harding, supra. The election between remedies exists when a party has several remedies for the same wrong, but pursues inconsistent remedies. Bacon v. Moody, 117 Ga. 207 (43 S. E. 482). This case involves the election of rights; and this principle is based upon the existence of two or more benefits to each of which the party has the legal title. As the widow in this case had no right or title to dower in these lands, the husband not having died seized and possessed thereof so that she could take dower therein, her fruitless effort to have dower assigned to her in lands which he had conveyed to his children was not a conclusive election which would prevent her from prosecuting a suit to recover the legacy given her by the husband in his will. As the executors and other legatees of the testator succeeded in defeating the widow in her effort to have dower awarded to her, it now clearly would be inequitable and unconscionable for them to defeat her right to the legacy given her in her husband’s will. The conclusion which we have reached is clearly in accordance with the law upon this subject, and is in strict harmony with the justice and equity of the case. The wife did not, by bringing said suit to recover dower, forfeit her right to this legacy by the provision in the will that if she. or the children contested the same by objecting to its probate, or tried to break the same, then they were not to receive the amounts therein given to them. Clearly the prosecution of a suit for dower in the lands conveyed to the children did not amount to a contest of the will by objecting to its probate; and such proceeding was clearly not an effort to break the will. The will would not have been broken if the widow had succeeded in having dower assigned to her in any lands of which he died seized and possessed. -The effect of her success would have left the will in full force and effect; and its only effect would have been to deprive her of this legacy. [279] In view of the above rulings, the court erred in sustaining the demurrer to the petition and in dismissing the same. Judgment reversed. All the Justices concur.