De Etcheborne v. Auzerais
Synopsis
Devise in Will—What it Includes.—A devise in a will made to executors in trust for heirs, of all the testator’s property, real and personal, ■wheresoever situated, includes the homestead of the testator and his family
Authority oe Executors to Sell.—If, in a devise to executors in trust for heirs, the testator expresses a desire that his homestead shall not be sold unless necessary, and that the same shall he used hy his wife and children as a home, the executors have authority to sell the homestead, if it becomes necessaiy.
Estoppel Abusing from Acceptance of a Devise.—If, in his will, the testator devises to his wife a portion of his property, provided she elects to accept the bequest in lieu of what the law may set aside to her, and the wife accepts the devise, she and her grantees are estopped from sotting up title to a homestead which the law would have set aside to her.
Pleading an Estoppel.—An estoppel which is of equitable cognizance must bo pleaded, or it will not be considered on the trial.
By the Court: 1. Upon looking into the will of Sunol we are of opinion that the devise to the executors included the homestead and carried with it the authority to sell it, if its sale should become necessary.
2. The acceptance by Mrs. Sunol of the devise in her favor, if the fact be that she did accept it, would operate to estop her, or her grantee,.the plaintiff in this action, from asserting her title to the homestead as' against the executors, or Auzerais, the defendant here, who derives his title from the executors. This estoppel is, however, one of equitable cognizance, and it not having been relied upon by the defendant in pleading, though he had an opportunity to plead it, it results that it could not, for want of the requisite pleadings, have been properly considered or determined at the trial.
Order affirmed.
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