
    Edward Fitts & wife vs. Obed Cook.
    A testator by his will devised certain land of his wife, in which he had only an estate for life as tenant by the curtesy, to his son; and devised to his wife for her life the use of one third part of his real estate, and the right of occupying part of his dwelling-house, and also gave her certain personal property; and devised the residue of his property, real and personal, to all his children, including his son, who were also the heirs at law of the wife; the will was proved without opposition; and the widow until her death, and all the children, continued to live together on the estate without making any division of the property, or setting off dower to the widow; and the children continued to live together until long after her death: It was held, that the heirs at law of the widow were not estopped to deny the validity of the devise of her land by the testator.
    This was a petition for partition, in right of the wife, of several lots of land, three of which, the petitioners contended, descended to the wife and the respondent from their mother Joanna Cook and two deceased sisters, and of which the respondent claimed to be sole seized by devise from his father Gad Cook.
    Two of the lots in question, described in the will of Gad Cook as the lot bounded east by Middle street, and west by Connecticut river, and the Mountain lot, came to Joanna Cook by devise .from her father Oliver Smith, and the third, called the Hither Aqua Vitae lot was conveyed to her by Elihu and Oliver Smith; and in these three lots, Gad Cook had an estate for his life only, as tenant by the curtesy.
    Gad Cook died on the 24th of May, 1828, leaving a widow, Joanna Cook; three daughters, Joanna, Sarah, and Naomi, the female petitioner; and one son, Obed, the respondent. Joanna Cook, the widow, died on the 22d of January, 1838; Joanna, the daughter, on the 10th of March, 1841 • and Sarah Cook, on the 26th of February, 1842. Joanna and Sarah made no conveyance or devise, and the female petitioner and the respondent were their only heirs at law
    
      The will of Gad Cook was as follows: —
    “ To my beloved wife Joanna, I give and devise the use and improvement of one third part of all my real estate for and during the term of her natural life; also the right of occupying such part of my dwelling-house, as may best promote her convenience and comfort. I also give to her one cow and all my household furniture, to be at her own disposal. My pew in the meeting-house, I give and devise to my wife and children.
    “ To my son Obed I give and devise my homestead, including all the buildings; my lot of land bounded east by Middle street and west by the Connecticut river, my Hither Aqua Vitse lot and my Mountain lot, to have and to hold the same to him, his heirs, and assigns forever.
    “ I give and devise all the residue of my real estate to my son Obed and my three daughters, Joanna, Naomi, and Sarah, to have and to hold to them, their heirs, and assigns forever, in equal shares.
    “ To my daughter Joanna, I give a cow, and to each of my other daughters I give a heifer, and to each of my three daughters I also give the privilege of occupying a room in my dwelling-house, so long as she shall remain single and unmarried.
    
      “ I give and devise all the rest of my personal estate to my son Obed, the payment of my just debts having been first made.”
    It was in evidence, that no person interested in the estate of Gad Cook opposed the proof and allowance of his will in the probate court, or objected to any of its provisions; that the widow’s dower in his estate was never set off in severalty, but that the widow and children lived upon the estate, without any division of the real or personal property during her life; and that the family continued to live together in the same condition after her death, and the deaths of Joanna and Sarah, and the marriage of the respondent in 1847, until 1848, shortly previous to the marriage of the petitioners.
    It was also in evidence, that during the whole period after his father’s decease, the respondent had the charge of the farm work, and his mother the charge of all the household affairs, during her life; though for the last three years, in consequence of an accident, she had been able to do but little work.
    
      It further appeared, that about a year previous to the filing of the petition, the respondent purchased of the petitioners then: interest in the furniture, which was bequeathed by Gad Cook to his wife Joanna, and for which he paid them'$100.
    The petitioners contended, that Gad Cook having only an estate for life in the three lots in question, as tenant by the curtesy, the devise by him to the respondent was void; and that the same descended, at the death of Joanna Cook, to her heirs at law, whose interests had all come to the female petitioner and the respondent, as tenants in common.
    The respondent, admitting that Gad Cook was only a tenant for life, by the curtesy, contended, that having devised the estate specifically to him, Gad Cook thereby asserted his right so to dispose of it; that Joanna Cook the widow, and Naomi, the female petitioner, having each of them a beneficial interest under the will, made no objection to the probate thereof, but received and accepted the provisions therein made in their behalf; that they thereby ratified the provisions under the will, in favor of the respondent, and were consequently estopped to deny the testator’s title to devise the lots in question to him in fee.
    At the trial before the chief justice, the foregoing facts having appeared in evidence, the case was reserved by him and reported for the consideration of the whole court, who were to pass such order, or enter up such judgment, in the same, as law and justice might require.
    
      E. Dickinson and E. G. Bowdoin, for the petitioners,
    cited Bac. Ab. Devise, 2; Election; Parsons v. Winslow, 6 Mass. 169, 178; Whitney v. Whitney, 14 Mass. 88; 6 Cruise, (Gr. ed.) 124; St. 1783, c. 24, § 8; Rev. Sts. c. 60, § 11; Merrill v. Emery, 10 Pick. 507; Reed v. Dickerman, 12 Pick. 146; Delay v. Vinal, 1 Met. 57; Wake v. Wake, 1 Ves. Jr. 335; Yate v. Moseley, 5 Ves. 480; Butler v. Hildreth, 5 Met. 49; 2 Story, Eq. J. § 1075, et seq.; 4 Kent, 56; Clancy, Husb. & Wife, 249; Kidney v. Coussmaker, 12 Ves. 136; Edwards v. Morgan, 13 Price, 782.
    
      C. P. Huntington and W. Allen, Jr., for the respondents,
    cited 4 Kent, 57; Dillon v. Parker, 1 Swanst. 359, 381; Gretton v 
      Haward, 1 Swanst. 409 and notes; 2 Story, Eq. J. §§ 1075 1080, 1096, 1097; Denn v. Cornell, 3 Johns. Ca. 174; Jackson v. Ireland, 3 Wend. 99; 1 Greenl. Ev. §§ 23, 24; 2 U. S. Dig. 202, 206; Rev. Sts. c. 60, § 2; Hyde v. Baldwin, 17 Pick. 303.
   Dewey, J.

Joanna Cook, the mother of Naomi Cook, one of the petitioners, and upon whose right the entire claim for partition rests, was once seized in fee of the two lots of land now the subject of controversy. The daughter Naomi, upon the decease of Joanna Cook, acquired an interest therein and is entitled to have her share set off in severalty, unless it appears that the title of the mother or daughter or of both has been defeated.

The only mode, in which it is supposed to have been thus divested, is by force of the last will and testament of Gad Cook, and the acts of Joanna Cook and her children, confirming the same. Gad Cook died on the 24th of May, 1828, having by his will devised not only all his own property, but also the three lots in which partition is now prayed for, and in which he had no interest beyond his own life. These lots were by him devised to his son Obed Cook. But as Gad Cook had no legal estate in them, that was devisable, his will could not pass the same as against the lawful owner in fee, Joanna Cook. Had nothing further taken place than such naked devise to Obed Cook, clearly nothing would have passed thereby, and Joanna Cook would have continued seized of the estate in these lots of land, and upon her decease they would have passed to her heirs, of whom Naomi Fitts was one.

Has any thing been shown to defeat the title of Joanna ? The respondent alleges, that this title has been defeated by her own acts, and that the doctrine of equitable estoppel should now bar her heirs from enforcing such title. This is said to have resulted from the provisions of the will of Gad Cook, in which he devised the land in controversy to Obed, and by the same will gave to Joanna, his wife, the use of one third part of his real estate, certain privileges as to the occupation of his dwelling-house, and certain legacies of personal estate; which devise in favor of his wife, it is alleged, was accepted by her, and taking the same under the will of Gad Cook, she ought now to be estopped from setting aside the other provisions of the will in favor of Obed, although the lands devised to Obed were in fact the lands of Joanna and holden by her in fee-simple in her own right.

The doctrine of equitable estoppels has undoubtedly been sanctioned by courts of equity; and although more properly a matter in equity, and more conveniently moulded to effect equity in courts having full chancery powers, it has also its place in courts of law, and may be there applied when the facts are such as will warrant its application. It is to be remarked, however, that the cases, to which it has been applied most frequently, as arising under wills, have been cases of estoppel to claims for dower. Under proper evidence to make out such defence, courts both of law and equity have held the widow estopped from setting up a claim of dower, where she has acted under the will and taken the benefit of the provisions of the will made on her behalf, and where enforcing her claim for dower would defeat other devises. Assuming that the like defence might equally prevail, to defeat an estate in fee-simple of the widow, who claimed devises under the will of her husband, the farther inquiry" is, whether there are any facts in the present case, to show an acceptance by the wife of the provisions of the will, that should bar her from enforcing her claim to her estate in fee-simple, which had been devised by her husband to Obed Cook.

The facts stated as bearing upon this point are very few, and not of a decided character, for the purpose of showing any exercise of adverse rights. It is stated, that no one opposed the probate of the will of Gad Cook, containing this devise to Obed Cook of the lands in controversy. Be it so ; that proves nothing as to the assent to the devise of Joanna Cook’s land. The right to prove the will depended merely upon the formal execution of it; there being property of Gad Cook to pass by it, which would authorize probate of the will. The question of probate of the will would raise no question as to the devise of the land of Joanna Cook to Obed Cook. The omission to oppose the probate of the will is of no weight therefore in this case.

Then the manner of the occupation of the land and house, and the fact that her dower was not set off to Joanna Cook, were relied upon to prove an acceptance of the will by her. The facts stated are, that Joanna Cook, with her children, including Obed, lived on the estate without any actual division of the property, real or personal, until Obed’s marriage in 1847. In the mean time, Obed had charge of all the farm work and all the lands, and his mother of the household affairs.

All this is perfectly consistent with the natural course of things, when the widow and children choose to continue to occupy together; and it is not inconsistent with Joanna Cook’s legal rights, and a present purpose on her part, at a future day, to assert her right to the land, of which she was seized in her own right, and independent of her husband. Take the facts as stated. All the other lands were occupied by Obed, as well as those which are the subject of controversy. But the will gave Joanna, Cook one third part of the real estate. She did not set off this one third. Things being left in this loose state, and none of the parties exercising rights adversely to each other, it will not do to draw inferences from these acts, that shall operate as an estoppel against parties subsequently setting up legal rights to the lands thus occupied.

To authorize such estoppel, the conduct of the party should be manifestly inconsistent with the rights now claimed. Estoppel in pais only arises when manifest justice and equity, as respects the interest of another, require its application. In looking at the provisions of this will, it will be seen, that they are so little a departure from what would have been the legal rights of Joanna Cook, without the will, that little can be inferred from her subsequent use of the property in the manner set forth in the agreed statement.

The use of one third of the real estate,” given by the will, was just the same as her legal estate without the will. The right of occupying such part, of the dwelling-house, “ as may best promote her comfort and convenience,” was additional to her estate at law. But there is no evidence of her occupation of the house in her own right, in distinction from, or adverse to, her children’s right. So of the cow and household furniturc; they may have been used for the benefit of all the family equally, and not by her exclusively. The further facts relied upon in the statement, that Obed Cook purchased of Fitts and wife, about a year since, their interest in the furniture which was devised by Gad Cook, does not prove any acceptance of the will or assent to the same. Whether it was the property of Joanna Cook, or property of the estate of Gad Cook, upon the death of Joanna Cook, it might naturally be divided among the children who survived her, and be made the subject of a sale of an undivided interest therein.

Indeed, the whole circumstances stated as to the use of the property, after the death of Gad Cook, are consistent with a family arrangement among themselves, to live together during the life of Joanna Cook, and all to participate in the property, without any special reference to the will, or to the devise therein of property belonging to Joanna Cook.

The paper title was clearly in Joanna Cook. The estate was in her, and descended to the petitioners, unless the estoppel prevented it. In the opinion of the court, the estoppel is not sufficiently made out, to defeat the otherwise legal title of Joanna Cook. Partition to be granted.  