
    Scholl’s Appeal. [Scholl’s Estate.]
    A decedent died in January 1881 leaving to survive her a husband and children. Her will was written by her husband, to whom, after her death, letters of administration c. t. a. were granted. The husband acted as administrator over two years, filing an account as such, and received some benefits under the will. In May 1883, he filed an election to take the real estate of the decedent against the will. Held, that such an election was too late.
    Per Curiam. — We decide the case not on the ground of estoppel, but upon that of election. We think the circumstances of the case show an election to claim under the will, and it is too late for' the husband now to change his mind.
    March 18, 1889.
    Appeal, No. 303, Jan. T. 1888, of Henry A. Scholl from a decree of O. C. Lycoming Co., dismissing his exceptions to the report of an auditor appointed to distribute the estate of Caroline P. Scholl, the proceeds of the sale of real estate, in the hands of Henry A. Scholl, her administrator, and to ascertain the interest of Henry A. Scholl in said real estate. McCollum and Mitchell, JJ., absent.
    The auditor, J. L. Meredith, Esq., appointed as above recited, found the following facts :
    Caroline P. Scholl died Jan. 8, 1881, leaving to survive her a husband and seven children, all of full age. Her will, which was written by her husband, was admitted to probate Jan. 24, 1881. The will contained the following clause: “I give, devise and bequeath to my daughter Sarah L. Scholl and her assigns forever, the brick house and lot and all the furniture, bedding that is therein, situate on West Fourth Street, together with all the personal property on said premises. This devise and bequest to my daughter Sarah L. Scholl,' is for her faithful performance during my last sickness and for the purpose to provide and supply with suitable rooms on said premises for my husband H. A. Scholl, to stay where we now live with her during his natural life.”
    The decedent died seized of a small farm, the house on Fourth Street, mentioned abové, and a brick building on Market Square in the city of Williamsport, used for a store and offices.
    The executor named in the will having renounced, letters of administration c. t. a. were granted to Henry A. Scholl, the husband, and to Sarah L. Sheffer, a daughter of the decedent. By the terms of the will, the small farm was to be sold for the payment of the debts of the testator. This was done, an account was stated by the administrators, and the proceeds were distributed by an auditor in the year 1882.
    
      On May 4, 1883, Henry A. Scholl filed in the office of the register of' wills, an election to take the real estate of his deceased wife as tenant by the curtesy and against the will.
    In the year 1886, a petition was presented by the administrator to sell the property on Market Square, and it was sold and the sale was confirmed by consent of all the parties in interest.
    The children of Henry A. Scholl, at the time the petition was filed, and since, have refused to recognize his right to any part of the estate of his deceased wife, as tenant by the curtesy, and insist that he was fully provided for by her will and that by his acts he was estopped from making such a claim.
    The auditor found as follows, from the foregoing facts:
    
      “ 1. Henry A. Scholl, from the time of the death of his wife, the said Caroline P. Scholl, had full knowledge of her will and was thoroughly conversant with all the provisions contained in the same and the codicil thereto attached.
    “ 2. From that time also, he had full and complete knowledge of all the estate, both real and personal, of his said wife, of which she died seized and possessed.
    “ 3. At that time or soon thereafter, he had acquired full knowledge of all the debts and liabilities which remained due and owing by his said wife at the time of her death and with which her estate had become chargeable.
    “ 4. Sarah L. Scholl, now Sheffer, immediately after the death of her mother, the said Caroline P. Scholl, took possession of the property on West Fourth Street, as the devisee thereof under the will of the said Caroline P. Scholl, deceased, with the assent and permission of the said Henry A. Scholl, subject only to his interest therein under said will, and has ever since held possession of the same as such devisee.
    
      “ 5. Henry A. Scholl, from the time of the death of his said wife until May 4, 1883, resided with his daughter, the said Sarah L. Scholl, now Sheffer, on the property on West Fourth Street as a beneficiary under her will and in the enjoyment of the provision made for him therein.
    “ 6. In all the acts done by the said Henry A. Scholl, either in his capacity as an individual or as administrator, which may in any manner affect his rights or interest in his wife’s estate, there is no evidence showing that any fraud or imposition has been practiced upon him.”
    The auditor thereupon reported the following conclusions of law:
    “1. In Pennsylvania, mere lapse of time will not deprive a husband of the right of claiming the real estate of his deceased wife against her will, as tenant by the curtesy.
    “ 2. The acts done by the said Henry A. Scholl, prior to the filing of his declaration for the curtesy, on May 4, 1883, with the Register, as established by the evidence in this case, are sufficient to amount to an election, and, in the judgment of the auditor, do amount to an election on his part to take the provision made for him by his wife in her will, and, by reason of his said acts and election, he is now estopped from asserting any claim to her real estate as tenant by the curtesy. '
    “ 3. The said Henry A. Scholl has no interest in the real estate of his deceased wife; the claim made by him as tenant by the curtesy does not attach to the fund now ordered for distribution, and therefore said sum, to wit, the sum of $6,912.03, must be awarded to the devisees entitled to the same according to the terms of the will.
    “ In regard to the first of the above findings, the auditor may be permitted to observe that, upon careful examination, he has been unable to find any authorities in Pennsylvania which impeach the title of a hnsband to the real estate of his deceased wife as tenant by the cnrtesy, merely on the ground of his delay in making claim to the same. The interest becomes vested in him immediately upon the death of the wife, and, unless he has done some act or acts clearly inconsistent with his title, mere delay alone will not operate to defeat it. And yet it is possible he may be put to an election. It would seem that, when the wife has made a will, under the ruling of the court in Nissley v. Heisey, 78 Pa. 421, as the widow and surviving husband are placed upon an equality in regard to the quantity of interest they are to have or may take in the estate of each other (see Act of May 4, 1855, Purd. 1008, pi. 23), it is but fair that such should be held in the same time and mode of election (see Act of March 29, 1832, § 35, Purd. 529, pi. 6), and that the husband should be allowed twelve months after the death of his wife within which to make up his mind, and that, before doing so, he should have a right to compel the exhibition of a true inventory and fair account of the estate by the executors, and if, at the expiration of that time, he fail to elect, he should be cited to do so by some one interested in the estate.
    
      “ If the auditor is right in his second finding, it is conclusive of the matter in controversy in this proceeding, and the third finding follows as a matter of course.
    “ The facts of this case appear to the auditor to bring it clearly within the principle decided by the supreme court in Wise v. Hhoads, 84 Pa. 402. .That was a case of estoppel — an election by matter in pais. And this is the same thing. There it was held that, if the husband, with a full knowledge of the property, consented that the devisee should enter and take possession under the will, and by his request she took possession and for a period of several months discharged the duty imposed upon her by the will, he was estopped from making any other claim to the property. While the facts in that case differ in some of their features from those in this, yet it is submitted that the principle of law applied there applies with equal force here. . . .
    “ It was, however, urged by counsel for Mr. Scholl that the devisees here claiming the fund have not been injured by his acts and’ that therefore there is no estoppel.
    
      
      “ Conceding it to be true in general that the law of estoppel will not allow a party to invoke its aid unless he shows that he has received injury in some way from the acts alleged to constitute the estoppel, it seems clear in this case that these devisees have been injured at least indirectly by the acts of Henry A. Scholl. He charged and received compensation as administrator for making repairs upon the Market. Square property and collecting the rents thereof ; and, by his acts also, expenses were incurred and paid from the estate in the first proceeding to sell the same property. These charges and expenses would have been entirely avoided if Mr. Scholl had made his claim for the curtesy in time. They however have been incurred, not simply by his delay, but directly by his own acts. Several of these devisees are heirs at law, as well as devisees of Caroline P. Scholl, deceased, and have been injured to the extent of said charges and expenses, and will not now receive so large shares of the estate as they otherwise would.
    “ The conclusion therefore is that the facts are sufficient and fully make out a case of estoppel. Mr. Scholl made his election to take under the will, which is manifested by plain and unequivocal acts, with a full knowledge of all the circumstances and of his rights, without fraud or imposition practiced upon him, and he may not now assert any claim contrary to its provisions. Anderson’s Appeal, 496 ; ICruser’s Appeal, 79 Pa. 194 ; Dickinson v. Dickinson, 61 Pa. 401.”
    Exceptions filed to the auditor’s report alleged that the auditor erred, 1, in his first finding of fact; 2, in his second finding of fact; 3, in his third finding of fact; 4, in his fourth finding of fact; 5, in his fifth finding of fact; 6, in his sixth finding of fact; 7, in finding that the acts of Henry A. Scholl, prior to the filing of his election for the curtesy on May 4, 1883, as established by the evidence, are sufficient to amount to an election, and do amount to an election to take under the will, and that he is now estopped from asserting any claim to the real estate as tenant by the curtesy; 8, in finding that said Henry A. Scholl has no interest in the real estate •of his deceased wife, and that the claim made by him as tenant by the curtesy does not attach to the fund now ordered for distribution, and that therefore said fund must be awarded to the devisees according to the terms of the will; 9, in not awarding to Henry A. Scholl the interest or annual income of the fund in question under and in pursuance of his right as tenant by the curtesy to the real estate of which, the fund in question is the proceeds and in lieu of which it stands.
    The exceptions were overruled and the report of the auditor •confirmed by the court, Cummin, P. J.
    
    
      The assignments of error specified the action of the court, 1-9, in overruling the exceptions to the auditor’s report, quoting them; 10, in confirming the report of the auditor absolutely; and, 11, in entering a decree that the distribution of the proceeds of the sale of the real-estate of .Caroline P. Scholl, should be made as set forth in the report of the auditor, to wit: to the children of the said Caroline only.
    
      Henry C. Parsons, with him J. C. Hill for appellant.
    A husband is entitled to his curtesy in the real estate of his deceased wife, when he elects to take it against her last will. Clark’s Ap., 79 Pa. 376; Act of April 11, 1840; Act of April 22, 1850, P. L. 450.
    Anderson’s Ap., and Kruser’s Ap., cited by the auditor, were upon the question whether widows had made their election under their husband’s wills and were thus deprived of their dower. Dickinson v. Dickinson was upon the competency of a husband as a witness upon an issue to try the validity of his deceased wife’s will. The only case cited by the auditor, that seems to sustain him, is that of Wise v. Bhoads. An examination of the facts in that case will show that it differs widely from the case in hand. There, the wife of the plaintiff, who, it appeared, was an old and feeble man, devised the property in dispute, together with the interest of her personal estate, to the defendant, a widowed sister of the plaintiff, to be used by her in his support. The defendant gave evidence to show that the plaintiff had induced her to leave her home, remove her goods to the house, and that she had there nursed him for eight months and expended her means in his maintenance; that during this time he accepted her services under the will and never complained of its terms or the treatment he received, and that he therefore was estopped from setting up the claim there made. This court very properly decided that the husband was estopped from claiming otherwise than under the will. But here, there is no provision whatever for the support of'the husband under the will of his wife, and there is no evidence that he has been or will be supported.
    It is not pretended, in this case, that any of the parties now seeking to raise the plea of estoppel, have been induced, by the delay of Henry A. Scholl, or by an act or word of his, to expend one cent, in money or in labor, or that they have been injured in the slightest degree. No one can set up an estoppel who was not affected by the act which constitutes the estoppel. Allen v. Allen, 45 Pa. 468; Troxel v. Iron Co., 42 Pa. 513; 8 W. & S. 135.
    
      B. S. Bentley, with him J. A. Beeber, and S. M. Smith for appellees.
    An election not to take under a will may be established by matters in pais. Anderson’s Ap., 36 Pa. 476; Dickinson v. Dickinson, 61 Pa. 401; Kreiser’s Ap., 69 Pa. 194.
    The auditor found, as a fact, that Henry A. Scholl, from the time of the death of his wife, had full knowledge of her will and was thoroughly conversant with all the provisions contained in the same, and the codicil thereto attached. This finding is abundantly sustained by the evidence.
    The finding of facts by an auditor will not be set aside unless for plain error, or for reasons which would induce a court to set aside a verdict. Bedell’s Ap., 87 Pa. 510; McConnell’s Ap., 97 Pa. 31; Riddle’s Est., 19 Pa. 431; Burrough’s Ap., 26 Pa. 264.
    The auditor also finds as a fact that Henry A. Scholl, from the time of the death of his wife until May 4, 1883, resided with his daughter, the said Sarah L. Scholl, on the property on West Fourth street, as a beneficiary under the will and in the enjoyment of the provision made for him therein.
    No man shall claim any benefit under a will, without conforming, so far as he is able, and giving effect to everything contained in it whereby any disposition is made. Whistler v. Webster, 2 Ves. Jr. 367.
    Equity prohibits claims in repugnant rights, and, as a consequence, says that he who claims an estate or other advantage by devise, shall not be permitted to disappoint any part of the will, but is bound to acquiesce in all its provisions. Preston v. Jones, 9 Pa. 459; Bradfords v. Kents, 43 Pa. 474; Cox v. Rogers, 77 Pa. 164; Benedict v. Montgomery, 7 W. & S. 238.
    March 25, 1889.
   Per Curiam,

The appellant has no case. He wrote his wife’s will, and, the executor named therein having renounced, letters of administration cum testamento annexo were committed to him by the register of wills. He continued to act as such administrator between two and three years, filed an account as such, and has received some benefits under the will, the extent of which is not ascertained. There is no room for the allegation that he did not know the extent of his wife’s estate. His position as administrator necessarily gave him that information. Surely it is now too late for him to claim against the will. We decide the ease, not on the ground of estoppel, but upon that of election. We think the circumstances of the case show an election to claim under the will and it is too late for him now to change his mind. A case so clear requires neither argument nor authority.

The decree is affirmed and the appeal dismissed at the costs of the appellant.  