
    James S. Huston v. Asa H. Cone.
    1. "Where a will assumes to give to one of its beneficiaries property of another person for whom provision is likewise made in the will, the latter can not take the provision made for him in the will, and also hold the property, but must elect which he will take.
    2. In order to put the party to such election, it mpst plainly appear that it was not the intention of the testator to give him the provision made in the will in addition to the property, except where the property in question is the widow’s right of dower, as to which the rule has been reversed by statutory provision.
    3. A court of equity has jurisdiction to compel the party to make such-election, or to abide by an election already made.
    4. Such election, in order to make it binding upon the party, must be made understandingly, that is, with a knowledge of the facts, and of the party’s rights under the will.
    .5. Money borrowed by the husband from the wife, and secured to her by the note of the husband, given to her at the time of receiving the money, will, after her death, and as between the husband and hef estate, be regarded as an equitable claim against the husband; and, therefore, a provision in her will releasing such "a, claim, is a provision beneficial to the husband.
    Reserved in the District Court of Hamilton county.
    The action was brought by the plaintiff' (a joint executor with the defendant under the will of Mary Cone, deceased, wife of the defendant), as a separate trustee under the will, and the object of the action was to obtain a construction of the will, and to enforce the execution of the trust created by it. Mrs. Cone, a widow at the time of her intermarriage with the defendant, had one child, Mrs. •Jones, a married woman, and was seized of sundry parcels of real estate; she was the owner, in her own right, of moneys, choses in action, and other personal property. ■She had, during coverture, advanced and loaned to her husband, the defendant, certain moneys, and to the defend.ant and a third party (bis brother) certain other moneys. Eor the moneys so loaned to her husband, the defendant, she received from him his separate promissory note; .and for the other moneys she received the joint note of her husband and said third party. These notes, together with the personal chattels referred to, were in her possession at the time of making her wiLl hereinafter referred to, and at the'time of her death. She held and claimed them independently of her husband, and he made no adverse claim to them. She had no children by Cone, and she had none by the former marriage except the daughter before referred to, who had children, and who continued under •coverture at the time of making the will. Under these ■circumstances, on the 11th of March, 1858, Mrs. Cone, in due form of law, made and executed her last will and testament, and the same has been proven and admitted to probate.
    The parts of the will material to be considered are as •follows:
    I. “ I give and devise all my messuages, lands, and tenements, wheresoever situated, to my daughter, Elvira A. Jones, and her heirs forever; and I do hereby nominate,, constitute, and 'appoint my brother, James S. Huston, trustee of the estate hereby devised, and that he shall take, and rent, and receive the rents and profits accruing from the messuages, lands, and tenements aforesaid, and therewith make all necessary .repairs, and pay all taxes and other charges and expenses in and about the same, and,. after all such payments deducted, shall annually, on the first day of January in each year, pay over the rents and profits to my daughter, during her life, to her sole and separate use and benefit, and, after her decease, in the same • manner shall appropriate and expend the same in the maintenance and education of her children, or any or either of them, or so much thereof as may be necessary for that purpose, and the residue, if any, to put out to interest for the ■ benefit of said children, always securing the same by mortgage on unincumbered reál estate. If my brother,., James S. Huston, should die before the decease of my daughter, or before her children arrive at full age, it is my will, and I hereby direct, that the Probate Court of Hamilton county, Ohio, shall appoint a good judicious freeholder to take the trust hereby reposed in my brother, James S. Huston, and the said trustee conform to and carry out the before-mentioned provisions and specifications for the management of my real estate, and the rents and profits arising therefrom; the court requiring the person thus appointed trustee to give a good and sufficient bond,. with security, for his faithful performance. If my daughter should die leaving no heirs of her own body, in that event happening, I will, devise, and bequeath all my estate, both real and personal, to my brothers, James S. Huston and David Huston, and my sister, Lucy Ann Pottenger, share and share alike, and to their heirs forever.”
    3. “ I give and bequeath to my beloved husband, Asa H. Cone, all notes held by me against him individually; and I further give and bequeath one-half of the two notes and interest held by me against him and his brother, William ■ Cone, but I require William Coue to pay his half of said notes and interest to my executor or executors.”
    6. “ I hereby will, order, and direct that the note held by me against Abraham Huston for the sum of $705.79, •dated January 9, 1857, and the note held by me against my brother, James S. Huston, for the sum of $1,860, dated March 11, 1858, payable in five years, with interest payable annually, be and the same are hereby placed in the hands of my brother, James S. Huston, as trustee, to be kept at interest, and the interest put at interest annually until my grandchildren arrive at full age, and when that ■event happens with either or any of them, they or either of them are to be paid their full share of principal and interest.”
    7. “I hereby direct that my property in the city of 'Cincinnati, being fifteen feet of the north side of lot 52, and seven and a half feet off the south side of lot 53, in ■square No. 3, of the subdivision of lots made by Curtis, Hotchkiss, and Avery, be and the same may be leased on perpetual lease at the expiration of the present lease, if, in the judgment of my brother, James S. Huston, it is best and most for the interest of my estate, and I hereby nominate James, my attorney in fact, for that purpose.”
    8. “ It is my will, and I hereby so direct, that if my daughter and her husband, Matthew Jones, wish to reside -and live upon my farm in Colerain township, they shall have the privilege of so doing, they keeping up all repairs and pay all taxes and other charges and expenses in and •about the same, free from rent, anything previously mentioned to the contrary notwithstanding.”
    9. “ I do hereby nominate, constitute, and appoint my husband, Asa H. Cone, and my brother, James S. Huston, executors of this my last will and testament; hereby authorizing and empowering them to settle up my estate agreeably to the provisions of this my last will and testament.”
    The petition, after setting forth the will and the facts .¿aforesaid, alleges that the defendant, soon after the decease •of the testatrix, took possession of his said notes, “ and thereby canceled his liabilities thereon, and accepted, the same in accordance with said provision and bequest in his favor;” that he “ retains said notes, or a moiety of the proceeds thereof, as against said William Cone, as one of the executors of said will;” and that he also claims to own and hold his life estate as tenant by the curtesy in all said real estate, and refuses to give up possession thereof, or to suffer the same to be managed and controlled as the will directs: thus claiming to hold the provision made for him in the will, and also to hold his life estate in the land in opposition to the will.
    The-petition prays that defendant maybe adjudged to have elected to take under the will, and be compelled to release his estate in the land, and account for rents and profits; or, if the defendant is not legally bound by his said election, then that he be required to make election, and be compelled either to give up said notes, and pay the amount secured by them, or to release his estate in the lands, and account for rents and profits.
    To this petition the defendant demurred. The demurrer was overruled in the common pleas, and the defendant adjudged and decreed to make his election as prayed for in the petition. The cause was appealed to the District Court, and there reserved for decision here.
    
      M. TI. Howard Tilden, for plaintiff:
    The determination of this case depends upon the proper application of the equitable doctrine of election. This doctrine is a necessary part of the jurisprudence of Ohio.
    
      Mellick and wife v. Darling, 11 Ohio, 343; Buist v. Dawes, 3 Rich Eq. 281; Waters v. Howard, 1 Md. Ch. Dec. 112; Fulton v. Moore, 25 Penn. St. 468; Hamblett v. Hamblett, 6 N. H. 333; Bell v. Armstrong, 1 Adams, 365; George v. Bussing, 15 B. Mon. (Ky.) 558; Havens v. Sackett, 15 N. Y. (1 Smith), 365; 1 Jarman on Wills, (top) 384; and see Hyde v. Baldwin, 17 Pick. 308; Smith v. Guild, 34 Me. 443; Weeks v. Patton, 18 Me. 42; Adams on Equity, 92.
    
      I. The defendant, under the circumstances, was bound to make his election, and either to renounce the benefit offered to him by the will, confining his claim to his common law rights, or to renounce his common law claim, and, confining himself to the benefit offered by the will, conform-to the will throughout. He could not consistently do both, and an attempt to do both was itself, in legal effect, an act of election to take under the will. Birmingham, v. Kirwan, 2 Sch. & Lefr. 452; Butcher v. Kemp, 5 Madd. 61; Chalmers v. Stoul, 2 V. & B. 222; Dickinson v. Robinson, Jac. 503; Roberts v. Smith, 1 S. &. S. 513; Melden v. Binger, 1 Dw. & Bat. Eq. 634; McGinnis v. McGinnis, 1 Kelley, 496, 503; Stump v. Finley, 2 Rawles, 168, 174; Hubert v. Wren, 7 Couch, 370, 378; White v. White, 1 Harrison, 202, 211; Melliek v. Darling, 11 Ohio, 343; French v. Davis, 2 Ves. Jr. 577; 1 Eden, 535; Cooper Ch. Cas. 319.
    The requirements of the doctrine of election are:
    
      First. That' the donor must in fact give property of his-own.
    1. Mrs. Cone’s title to the promissory notes, the subject of the gift, may be safely rested on the provisions of the-acts of July 4, 1846, and February 5, 1847. 1 S. & C. 693a, b; 2 Story Eq. Juris., secs. 1372, 1373, 1375; Harvey v. Harvey, 1 P. Wms. 125, 540; 2 Vernon, 659, 760; Bradish v. Gibbs, 3 Johns. Ch. 523, 540; Huber v. Huber, 10 Ohio, 371; Wood v. Warden, 20 Ohio, 518.
    2. She attempted to give the property by the due execution of her last will and testament, and the question resolves itself, therefore, into one of testamentary power, and in Ohio that is no question at all. Wills act, sec. 1, S. & C. 161; Allen v. Little, 5 Ohio, 65; Ash v. Ash et al., 9 Ohio St. 383; Walker v. Walker, 14 Ohio St. 157.
    
      Second. The donor must profess to dispose of the property of the donee.
    This must be settled by the language of the will. 1 Jarman on Wills, 391-393. It is not at all necessary that the property which the donor proposes to dispose of should be known or thought by him to belong to the party called upon or bound to elect. 1 Wms. on Ex’rs, 1299; Dillon v. Parker, 1 Swanston, 396, and note; 2 Rop. Leg. 482; 1 Powell on Dev. 430; 1 Jarman on "Wills, 387.
    II. The acts of the defendant have determined his election. If he made a mistake he must abide by the consequences. 1 Story on Eq., sec. 111; Storrs v. Barker, 6 Johns. Ch. 169; Proctor v. Thrall, 22 Vt. 262; Hunt v. Rousmanier et al., 8 Wheaton, 174; S. C., 1 Pet. S. C. 1; Young v. Miller, 10 Ohio, 85; Evarts v. Strode, 11 Ohio, 480; Clayton v. Fleet, 10 Ohio St. 544; Thompson v. Thompson, 18 Ohio St. 73; see Light v. Light, 21 Penn. St. 407; Upshaw v. Upshaw, 2 Hea. & Munf. 381; Canston v. Canston, 2 Rich. Eq. 1; Baist v. Dawes, 3 Rich. Eq. 281; Batrick v. Broadhead, 3 Bro. C. C. 88; Cauffman v. Cauffman, 17 Serg. & R. 16; Heron v. Hoffman, 3 Rawle, 393; Preston v. Jones, 9 Barb. 456.
    This case differs in some of its circumstances from all the cases cited, and it must, therefore, be largely controlled by general principles.
    III. If the right now to choose is available to the defendant, this court can compel him to elect. Adams on Eq. 96; Hull v. Hull, 1 Bland, 130; Addison v. Bowie, Id. 606; Key v. Griffin, 1 Rich. Ch. 67; Webley v. Longstaff, 3 Dessaussure, 504; Nutt v. Nutt, 1 Freeman’s Ch. 128.
    
      George E. Pugh, for defendant:
    I. The doctine of election does not prevail, in Ohio, except with regard to the right of dower; and, as to that, only to the extent, and in the manner, prescribed by statute. Collier v. Collier, 3 Ohio St. 376, 377; Stilley v. Folger, 14 Ohio, 646, 647; Birchard, J., Morningstar v. Selby, 15 Ohio, 366; 3 Curwen’s Rev. Stat., sec. 17, p. 2274.
    II. The doctrine of election is stated in Broome v. Monck, 
      10 Vesey, 609; Thellusson v. Woodford, 13 Ib. 222; Judd v. Pratt, 13 Ib. 173; 15 Ib. 390; Lord Rancliff v. Lady Perkins, 6 Dow’s Parl. Cases, 179; Dummer v. Pitcher, 2 M. & Keen, 262; Stratton v. Best, 1 Vesey, Jr. 285; Dillon v. Parker, 1 C. & Finnelly, 303, syllabus; Mellick v. Darling, 11 Ohio, 343.
    III. These propositions result:
    1. The law presumes that, no election was intended. Sandford v. Jackson, 10 Paige, 266; Sheldon v. Bliss, 4 Selden, 35; Leonard v. Steele, 4 Barb. 20; Havens v. Sackett, 15 New York, 365, 366; Ib. 371, 372; Mills v. Mills, 28 Barb. 454.
    2. Parol testimony is not admissible in aid of the doctrine. Doe v. Chichester, 4 Dow’s Parl. Cas. 89, 90; Dixon v. Sampson, 2 Y. & Coll. (Exch.) 566—a decisive ease. See also Painter v. Painter, 18 Ohio, 247.
    IV. There being no words of exclusion, would the will of Mrs. Cone be disappointed in a technical sense, unless the defendant were put to an election as between the bequest therein made to him and his estate by the curtesy?
    The presumption of the law is in the negative:
    1. Because every bequest imports a consideration of its own. Per Curiam, Gordon v. Stevens, 2 Hill’s Ch. (S. C.) 46; Whildon v. Whildon, Riley’s Ch. 206, 207; Attorney-General v. Earl of Lonsdale, 1 Simons, 105; Dixon v. Sampson, 2 Y. & Coll. (Exch.) 570, 571.
    2. Because (like dower) curtesy is a freehold estate arising by operation of law. Estcourt v. Estcourt, 1 Cox, 22; Ayres v. Willis, 1 Vesey, Sr. 230; Brown v. Parry, 2 Dickens, 685; Foster v. Cook, 3 Brown’s Ch. Cas. 347; Lord Redesdale, Birmingham v. Kirwan, 2 Sch. & Lefroy, 452; S. P., Greatorex v. Cary, 6 Vesey, 615, 616; Hull v. Hill, 1 Conner & Lawson, 180; Reed v. Dickerman, 12 Pick. 149, 150; 2 Story’s Eq., chap. 30, sec. 1088; 2 Roper on Legacies (White’s ed.), 414, 418, 422.
    V. It can not be said that Mrs. Cone intended to exclude •the estate of her husband by the curtesy, because it does mot appear, by the terms of the will, that she was aware of his right to such an estate. Forrester v. Cotton, 1 Eden, 535; Lord Dorchester v. Earl of Effingham, Cooper’s Ch Cas. 319, 323; French v. Davies, 2 Vesey, Jr. 572; Church v. Kimble, 5 Simons, 525; Bending v. Bending, 3 Kay & Johns. 257; Lawrence v. Lawrence, 2 Vernon, 365; 2 Roper on Legacies (White’s ed.), 415, 416.
    VI. A devise to others, in general loords, of the estate in which curtesy or dower is claimed, affords no indication of a design that there should be any election. Johnson v. Telford, 1 R. & Mylne, 244; Forrester v. Colton, Ambler, 390; Gibson v. Gibson, 1 Drewry, 42; Stevens v. Stevens, 3 Ib. 697; 1 De Gex & Jones, 62; Maxwell v. Maxwell, 2 De Gex, Macnaghten & Gordon, 705; Bull v. Church, 5 Hill, 206-208; Church v. Bull, in error, 2 Denio, 430; Adsit v. Adsit, 2 Johns. Ch. 451.
    VII. Postponing the enjoyment of a devise or gift to others, by admitting an estate of dower or curtesy, does not, in a legal sense, disappoint or disturb the will. Adsit v. Adsit, 2 Johns. Ch. 451; Smith v. Kniskern, 4 Ib. 9; Jackson v. Churchill, 7 Cowen, 287; Fullcr v. Yates, 8 Paige, 325; Wood v. Wood, 5 Ib. 601; Irving v. De Kay, 9 Ib. 521, 522; Havens v. Havens, 1 Sandf. 324; Kinsey v. Woodward, 3 Harrington, 464, 465; Mills v. Mills, 28 Barb. 454, Thompson v. Nelson, 1 Cox, 447; French v. Davies, 2 Vesey, Jr. 572; Webb v. Evans, 1 Binn. 565; Holdich v. Holdich, 2 Younge & Collyer’s Ch. 21, 22; Harrison v. Harrison, 1 Keen, 765; Ellis v. Lewis, 3 Hare, 310, 313-316; Strahan v. Sutton, 249.
    VIII. The abstract question is quite settled that an annuity out of the estate is now held not to have the effect of barring the wife of her dower, as inconsistent with it. Hall v. Hill, 1 Conner & Lawson, 129; Pitts v. Snowden, cited in 2 Roper on Leg. 418, 419; Lord Dorchester v. Earl of Effingham, Cooper’s Ch. Cas. 319.
    The defendant has made no election by retaining the notes bequeathed.
    No act is to be considered an election where the party has proceeded upon the idea that he was not bound to elect. 
      Dillon v. Parker, 1 Clark & Finnelly, 303; same case, 1 Swanston, 379-381; Adsit v. Adsit, 2 Johns. Ch. 451; Baker v. Red, 4 Dana, 160, 161; Padbury v. Clark, 2 Macnaghten & Gordon, 306, 307.
    A party must have had knowledge of his obligation to elect, as matter of law, before he can be said to have elected. Pusey v. Disbouverie, 3 P. Wms. 320, 321; Wintour v. Clifton, 21 Beavan, 468.
    And generally as to the question. 2 Roper on Legacies (White’s ed.), 389, 390; Ib. 395-398; 2 Story on Equity, 3d ed., secs. 1097, 1098.
   Welch, J.

It is a well-settled principle of equity, that where a will assumes to give to one of its beneficiaries property belonging to another person, for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision made for him in the will; and that he can not have both.

It is equally well settled that equity will take jurisdiction to compel this election, when the party refuses to make it, and that when it has been once fairly and understandingly made, equity will compel him to abide by the election.

These propositions being conceded, as we think they must be, the questions raised and argued in the case are reduced to three: 3. Does the will make a beneficial provision for defendant? 2. Does it assume to dispose of his life estate in the land devised ? 3. Has defendant made his election? We answer the first and second of these questions in the affirmative, and the third one in the negative. We think the provision made in the will for defendant is beneficial, and that it was manifestly the purpose of the testatrix to dispose of his life estate; but we do not think he has made any election by which he ought to be bound.

The question whether the will makes a beneficial provision for the defendant, is simply the question whether he was equitably indebted to his wife at the time of her death, in the amount of his notes given to her. We think he was. He borrowed the money of his wife, and at the time it first came into his hands, promised to repay it to her. This constituted him in equity a trustee, to hold the money for her use, and he is bound as such trustee to account foi it to her estate. The fiction of the law, that the husband and wife are one person, and the dotrine that she is incapable of making a- valid contract with her husband, are, in such cases, disregarded in equity, so far as may be necessary to carry into effect the real intentions of the parties. Eor such a purpose they may be regarded as separate persons, and the husband considered as sustaining the character of trustee, as well as that of husband.

As to the second question, namely, whether the will assumes to dispose of the life estate, I need perhaps say but little. A bare reading of its several provisions, we think, will show that it admits of no other construction than the one indicated. It is true, as counsel claim, that if it will reasonably admit of a construction not involving a disposition of the life estate, that construction must prevail. This is the rule of the common law, and it is only as to the widow’s right to dower that the reverse rule has been established in Ohio. Under our statute the will is to be regarded as assuming to dispose of the dower estate, unless the contrary clearly appears. In the present case the common law rule prevails, that is, we are bound to hold that the life estate is not disposed of, unless the contrary clearly appeal’s. Without going into details of its provisions, suffice it to say, that, in our judgment, the contrary, here does clearly appear, and that no reasonable or admissible construction can be put upon this will, which does not make it intend a disposition of a present estate in the lands devised. The authorities cited by counsel are inapplicable. They relate mainly to cases of dower and annuities. Were it a dower interest, or an annuity, that was in controversy here, it might be saved to the owner without defeating the plain objects of the will. A right of dower, or an annuity, is a mere incumbrance, and necessarily implies a present estate in another person than the widow or annuitant. The repugnancy here is in the fact that the testratrix assumes to dispose of a present subsisting estate, when she owns only a reversion.

The claim that the defendant has made his election is utterly without foundation. The assumption is that he elected to take under the will. There is just as. much ground for saying that he elected not to take under the will. An election by him implies the taking of one thing and the rejection of the other. The defendant has “ elected ” to take both. To be binding on a party in such case, the election must be made understandingly — that is, with a knowledge both of the facts and of his rights under the will. No such election has been made by the defendant, and he yet has the right, and is bound to make such election.

Decree accordingly.

Hat, C. J., MoIlvainb, Stone, and White, JJ., concurred.  