Noe v. Splivalo

California Supreme Court Jul 1, 1880 No. No. 5,679Published

Before: Department, Thornton

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Holding. The court held that a beneficiary who accepts property under a decree of distribution based on a will is estopped from subsequently asserting an inconsistent proprietary claim to other property disposed of by that same will.

Issues

Whether a beneficiary is estopped from asserting title to land contrary to a will after accepting other property under a decree of distribution.
Whether evidence of such an election is admissible under the pleadings to support a defense of estoppel.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The plaintiff elected to take under the decree distributing the property as devised by the will, and he was thus forever estopped from making any claim contrary to its provisions.”

“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.”

Synopsis

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.

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.

Department No. 2, Thornton, P. J.: This is an action to quiet title to a lot of land situate in the City and County of San Francisco. The complaint is in the usual form. All of the allegations of the complaint are denied as to one-third of the lot of land referred to. The defendants also set up in defense the Statute of Limitations; and for another and separate defense (styled the third defense) pleaded, that on the 17th day of March, 1862, one José de Jesus Noe, the father of the plaintiff, was the owner of the tract of land in controversy, and also the owner of a tract of land whereon one Deering resided ; that said Noe died on the day just named, leaving a will, whereby he devised to plaintiff the tract of land whereon Deering resided, and by the same instrument devised to Dolores, Jesus, and Vicente Noe, in equal shares, the lot in suit; that on the 14th of July, 1862, the will of José de Jesus Noe was duly probated by the Probate Court for the City and County of San Francisco, and on the 13th of December, 1872, a decree of distribution was duly made by said Probate Court, under which decree the plaintiff has, ever since it was entered, held and possessed the lot on which Deering. resided, and thus [209]elected to affirm the said will and all its provisions; that on the 80th of November, 1872, Jesus Noe conveyed his interest in the lot in suit to defendant Catalina, the wdfe of the other defendant, A. D. Splivalo. The decree Was set out verbatim in tliis third defense, and by it the lot referred to was distributed to the plaintiff. The Court below gave judgment for the plaintiff ; defendants moved for a new trial, which was denied, and they have prosecuted this appeal from the judgment and the order above stated.

On the trial, the plaintiff, having introduced testimony to show his title, rested, and defendants then- proceeded to put in testimony, and made an offer, as appears from the statement, as follows: “ And said defendants then, for the purpose of establishing the third defense set up in the answer, offered to prove the following facts; ” to the introduction of which plaintiff objected, the objection was sustained, and defendants excepted. The evidence thus offered and excluded is substantially the same as the facts set forth in the third defense, except the fact that the testator named herein owned the tract devised by him to Dolores, Vicente, and Jesus Noe.

It is here contended, on behalf of the defendants, that the court erred in excluding the offered testimony, because it showed an election on the part of plaintiff to take the land devised to him, by which he was and is estopped to urge his title to the land sued for, conceding that the land belonged to him when the testator devised it.

Noe v. Splivalo

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