
    Wilhelmina Haack, App’lt, v. John H. Weicken, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 30, 1886.)
    
    1. Deed—Reformation of on account of mistake.
    A deed was executed to consummate an agreement of partition of lands devised by plaintiff’s father to his four children, of whom this plaintiff was one. By the agree cent it was arranged that one parcel should be conveyed to plaintiff and her husband H. as joint grantees, and that H. should pay to one of the devisees the sum of §10,000. The deed was by direction of H. made in such form as to convey the whole property to him, plaintiff’s name being wholly omitted, of which fact she was ignorant, as was also the grantor who executed it, assuming it to be in accordance with the agreement. Several years after the conveyance H. died, leaving a will, by which he devised to plaintiff property, which was declared to be in lieu of dower, devising all the rest of the property, after certain specific bequests, to his sisters and brothers. Plaintiff, after learning that her name was omitted in the deed, and that the whole property had been conveyed to her husband, received property under the bequest made to her in the will of H. In an action to reform the deed, Held, that it was executed under such mistake as would necessitate the reversal of findings adverse to plaintiff, if no other considerations entered into the case.
    2 Devise of property—Rights of devisee — Devisee must elect WHETHER TO TAKE UNDER WILL OR ASSERT HER TITLE TO PROPERTY— ESTOPPEL.
    
      Held, that plaintiff was put to her election whether to take under the will or to pursue her remedy by reformation of the deed, and that under the circumstances of the case, she must be held to have elected to accept the devise and thereby to have created an equitable estoppel to the prosecution of the action.
    Appeal from judgment of the special term dismissing the complaint, with costs,
    
      H. C. Place, for app’lt, Babe & Keller, for resp’t.
   Davis, P. J.

This action was brought to reform a deed executed by one John A. Ropke to the defendant, Pleinrich A. Haack. The deed was executed to consummate an agreement of partition of certain lands devised by the plaintiff’s father to his four children, of whom the plaintiff was one. One parceTof the land was situate in the city of New York, and that was considered to bo equal in value to one-half of the property devised, and was estimated at $20,000. It was arranged between the parties that this parcel should be.conveyed to Heinrich A. Haack, then the husband of the plaintiff, and the plaintiff, and that Heinrich A. Haack should pay to another of the devisees the sum of $10,000, half of its estimated value. It was satisfactorily shown to have been the intention of all the parties that the deed conveying this parcel of property should be made to the plaintiff and her husband as joint grantees, so that the interest of the plaintiff in her father’s estate should be represented in the grant as well as the interest which her husband acquired by the purchase of the share of another of the devisees. It was shown also that by the direction of the plaintiff’s husband the deed was made out to him in such form as to convey the whole of the property to- him, the name of the plaintiff, his wife, being wholly omitted from the deed. The fact of such omission was unknown to the plaintiff, and to the party who executed the deed as grantor, he having neglected to read it, but executed it assuming that it was in accordance with the mutual agreement. Heinrich A. Haack, the grantee, died June 5, 1883, several years after taking the above mentioned conveyance. It was proven also upon the trial that the plaintiff did not know of the fact that the deed had not been taken in the joint names of herself and husband until after his decease, and that that fact also was not known to the other parties to the partition agreement. Heinrich A. Haack left a will by which he gave and devised to the plaintiff a dwelling-house and property situated in Brooklyn, and in which they resided, and also the sum of $10,000; and these provisions were declared to be in lieu of dower. He gave certain specific bequests to other persons, and then gave, and devised all the rest, residue and remainder of his property, without other description, to his sisters; Wilhelmina Hopke and Mary Oest, and his brother, RoderickHaack. The plaintiff, after learning the fact that her name had been omitted in the deed and that the whole property had been conveyed to her husband, received under the provisions of his will a number of payments of portions of the legacy given to her, and also kept possession of the dwelling-house devised to her and demanded that the executor should proceed and pay off a mortgage existing thereon as a debt of the estate. She delayed to commence proceedings to reform the deed for a considerable period of time after her knowledge of the alleged mistake, and after the payments made to her under the will of her husband.

The court below found as matter of fact that there was no mistake in the omission of her name from the deed to her husband, and refused to find that there was any fraud on his part in having the deed prepared in that form, substantially, it is supposed, on the ground that no fraud was charged in the complaint. He found also, in substance, that the plaintiff, by her acts after she learned the fact, subsequently to her husband’s death, that the deed had been made to him alone, in receiving portions of the legacy and asserting other claims under the provisions of his will, had elected to take such provisions in lieu of any claim which she might otherwise have had to reform the deed.

We think the learned court ought to have found on the evidence in this case that the deed was made and executed under a mistake on the part of the grantor, who testified that he supposed it to be in accordance with the agreement that was made, and on the part of the plaintiff who supposed until after her husband’s death that her name as joint grantee was embodied in the deed, and he might well have found that the decedent made a mistake in giving his directions to the scrivener who drew the deed as otherwise his conduct would have been a palpable fraud. The findings of the court to the contrary would require a reversal of this judgment and a new trial if the other ground upon which the court also directed the judgment were not fatal to the plaintiff’s recovery.

It is a well settled principle of law and equity where a testator devises and bequeaths portions of his property to a beneficiary under his will and also by his will devises and bequeaths a residuary estate to other beneficiaries which necessarily embraces property claimed by him but in which the former benficiary owns or claims to own an interest, that the acceptance by such beneficiary of the provisions of the will with knowledge of the fact that the testator has thereby disposed of the property in which he claims an interest, will be held to an election by him to take under the provisions of the will instead of asserting and pursuing a hla.im to the property devised or bequeathed to the residuary legatees. In this case if the plaintiff takes under the provisions of the will and succeeds in asserting her title also to the real éstate deeded to her husband she will substantially receive the entire amount of her husband’s estate and thus cut off the residuary legatees from that portion which it is manifest the testator intended to devise and bequeath to them. As joint grantee of the deed to herself and husband ' she would take title to the whole of that property as survivor ; as devisee she would take the house and lots in Brooklyn and this comprises the whole of the real estate of which the testator died seized ; and her legacy of $10,000 together with the payment of the debt of $5,000 owing on the mortgage would substantially absorb the entire estate.

This state of facts, we think, did put her to her election whether to take under the will or to pursue her remedy by reformation of the deed and under the authorities cited by the learned counsel for the respondent, we think the case is one in which she must be held to have elected and, thereby to have created an equitable estoppel to the prosecution of this action. Thellusson v. Woodford, 13 Vesey, 210; Ker v. Wanchope, 1 Bligh, 21, 22; Tibbitts v. Tibbitts, 19 Vesey, 663; Havens v. Sackett, 15 N. Y., 365, 369. In this last case, at page 369, Denio, C. J., states the rule as follows:

“One who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent ■ with it.
“For example, if a testator has affected to dispose of property not his own, and has given a benefit to the person to whom that property belongs, the legatee or devisee accepting the benefit so given to him must make good the testator’s attempted disposition.”

Our conclusion is, therefore, that the judgment must be affirmed upon the ground last considered in this opinion, but under the circumstances, without costs.

Daniels, J., concurs.

Brady, J.

I concur, as the authorities seem to force the result declared, although I do not understand why the plaintiff’s land should be lost by her acceptance of the provisions in lieu of dower, when there is nothing in the will which declares that it was thus intended by the testator to extinguish all other personal claims against the estate. She was entitled to dower by law.  