Noe v. Splivalo

Citations

• 54 Cal. 207

Syllabus

<p>Will — Election — Estoppel.— If a testator undertakes to dispose of the property of a third person, and such person accepts a bequest or devise under the will, such acceptance is a confirmation of the disposition by the will; for a person cannot accept a benefit under a will, and at the same time reject it, by asserting, in opposition to it, his own inconsistent proprietary rights.</p> <p>Id.—Id.—Id.—Decree of Distribution—Pleading.—In an action to quiet title, the answer alleged that the plaintiff’s father died seized of the land in controversy, and of another tract, and by his will devised the latter to the plaintiff, and the former to other children, one of whom conveyed to the defendant; that, under a decree of distribution, the land devised to the plaintiff was assigned to him, and that he accepted the same. Held—upon the facts alleged—that the plaintiff was estopped by the decree from claiming the property in controversy; and held, further, that the defense was well pleaded, though the answer alleged that both the land devised to the plaintiff, and the land claimed by him in opposition to the will, were the property of the testator.</p>