Carter's Appeal from Probate

Andrews, C. J. We agree with the counsel for.the appellant that the ante-nuptial contract made between her and her husband was not a jointure, certainly not in the common law meaning of a jointure. Whether or not it was a “ settlement of property made in her favor,” so as to bar her dower in her husband’s estate, under Gen. Statutes, § 622, is a question of more difficulty and one we do not decide. It was, at any rate, a contract by the terms of which she did, in consideration of the promises made to her therein, relin [585] quish and discharge all claim she had or might ever have for dower in the estate of Mr. Carter, her intended husband. She did this in plain, direct and unequivocal words, in the present tense. If, however, it be admitted that at her husband’s death she might, notwithstanding that agreement, have had dower assigned to her, she did not do so. She did not then claim it. She conducted herself then as though she had parted with all right to dower and as though she had in place of it a right to recover on the agreement. The ten thousand dollars mentioned in that agreement had been paid to her, partly in cash and partly in an exchange of notes which she accepted as payment. All the conditions of her husband’s estate—that it was deeply insolvent, the amount of the real estate, the mortgages, the unsecured debts—were as fully known to her then as they are now. With such full knowledge she presented to the commissioners a claim for the present worth of her life-interest in the sum of twenty-five thousand dollars, and it was allowed to her to the amount of eighteen thousand six hundred and ninety dollars. No objection was made to this allowance by the executor, or by any other creditor of Mr. Carter. It seems to have been treated as a provision for her in lieu of dower. All this was shortly after her husband’s death in 1875. The settlement of the estate has proceeded from that time to this on the theory that she was a creditor of the estate and not a doweress. She has received dividends on the amount allowed to her in common with the other creditors. These dividends she keeps and has never offered to repay. In 1889, fourteen years after the death of her husband, she for the first time claimed to be entitled to have dower set out to her. The contention of the appellees in this part of the ease is, that the appellant has elected to take the provisions made for her in the agreement and that thereby she has released her right to take dower. It would contradict the terms of the ante-nuptial agreement to pretend that the appellant is entitled to have the provisions mentioned in it and dower besides. Granting [586] that she might have either, certainly she cannot have both. It is strenuously argued by her counsel that she has never made any election at all; has never chosen; has never—to use his own expressive figure—“stood at the parting of two ways, one of which led to dower and the other to the provisions in the ante-nuptial contract, along either of which she might walk,” and elected to pursue one rather than the other. With this argument we are not able to agree. It seems to us to overlook or to greatly misapply the facts of the case. That the appellant had entered into the ante-nuptial agreement proves that she knew she would be entitled to dower except for the existence of that agreement. That she availed herself of the provisions of that agreement and did not claim dower is true. At the death of her husband she consulted her trustee as to the effect that contract had on her right to have dower. He was a lawyer and stated to her his opinion. She requested him to consult other lawyers whose names are stated in the brief, than whom none were ever more eminent or learned in the law. He did so, and informed her that their opinion concurred with his own, to the effect that she had no right to dower and that her only way was to present to the commissioners a claim for the cash value of her interest in the twenty-five thousand dollars. Upon this advice she acted and presented her claim to the commissioners and did not claim dower. A person never asks advice as to what course of conduct he shall pursue, except where there is more than one which is open, and he is in doubt as to which he will take. One never inquires what road he shall take when there is but one possible way by which he can go. Where one is certain there is nothing about which advice can be sought. The fact that the appellant asked advice indicates that her mind was deliberating between dower and something else, was weighing considerations on the one side and the other, was seeking to come to a conclusion, was exercising a choice. It is argued that she could not make a choice because she was led to believe from the advice given to her that hex [587] right to dower was cut off by the agreement. This is a confusion of thought. It is putting the cause of the choice for the choice itself. Where a person has actually pursued one of two courses of conduct because he believed he could not successfully pursue the other, that is making an election between them. To argue about it would seem to be superfluous. That the appellant believed the advice she received and acted upon it shows, not that she did not choose, but that she had a reason for her choice which was satisfactory to her. Election is the choosing between two rights by a person who derives one of them under an instrument in which a clear intention appears that he should not enjoy both. The ante-nuptial agreement in this case is such an instrument. At the death of her husband two courses were open to the appellant, of which she could take one but not both; that is, either to take dower or the provisions in the agreement, and as she has made a choice, by that choice she must abide. The provisions in that agreement being designed as a satisfaction of her claim for dower, she cannot accept the former without renouncing the latter. The legal effect of taking one is to discharge the other. Snell’s Equity, 178 ; In re Vardon’s Trusts, L. R., 28 Ch. Div., 124 ; Herbert v. Wren, 7 Cranch, 370 ; Hotchkiss v. Brainerd Quarry Co., 58 Conn., 132. Another point made in the case is, that the court of probate cannot enforce an election, that being solely an equitable power. It is true that courts of probate do not have any general equity jurisdiction. But where an estate is in settlement before a court of probate, and an equity arises between the persons interested in such estate incidental to and growing out of such interest, then that court not only may but must apply and enforce it in order to do justice to all parties and to settle the estate. To this extent courts of probate have the fullest equity powers. Beach v. Norton, 9 Conn., 198 ; American Bible Society v. Wetmore, 17 id., 187 ; Ashmead’s Appeal, 27 id., 241 ; Mix's Appeal, [588] 35 id., 123 ; Vail’s Appeal, 37 id., 185 ; Hewitt’s Appeal, 53 id., 24 ; Chase’s Appeal, 57 id., 236. There is no error in the judgment appealed from. In this opinion the other judges concurred.