ACCEPTANCE OF BENEFITS BARS RIGHT TO CONTEST WILL.

Court of Appeals for Mahoning County.

#### Bessie Fuhr Patterson, Executrix of the Will of Delos Patterson, v. A. L. Atkinson, Executor of the Will of T. H. Patterson et al.

Decided, October 19, 1917.

*Wills—Contest of—Can Not he Maintained hy Executor Who Has Accepted Benefits Thereunder.*

A party appointed and qualified as' executor of a will, administering an estate in accordance with its terms and taking the benefit of the provisions therein in his favor, can not afterward maintain-an action to contest the validity of the will.

*David G. Jenkins, V. L. Fishel*and *McCray & McCray,*for plaintiff in error.

*Hart & Koehler, Harrington, DeFord. Heim & Osb.orne,*con*tra.*

*428Metcalfe, J.

The plaintiff in error was plaintiff below and brought this action to contest the validity of the will of 'T. II. Patterson.

.In the common pleas court John II. Humphrey, as guardian of Catherine Humphrey, a minor defendant in the case, filed a motion to dismiss and abate the action. The court of common pleas sustained the motion and entered a,n order abating the action, which is the error now complained of.

It is first objected that the matters set out in the so called motion properly constitute a plea in abatement, and should have been plead by answer. We think this objection would have been good if made in time, but the record shows that the parties went to hearing upon it without objection; hence, any objection to the form of the pleading was waived.

Briefly stated, the facts as they appear upon this record are, that the plaintiff was the wife of Delos Patterson and is the executrix of his will and his sole heir and devisee. Delos Patterson was the son and sole heir at law of Theodore Patterson whose will it is sought to contest. He was also named as one of the executors of the will which contained a substantial provision for his benefit; that the only interest which the plaintiff has in the will of Theodore Patterson she derives through her husband, Delos Patterson; that Delos Patterson, after the death of Theodore Patterson appeared in the Probate Court of Ma-honing County and presented his father’s will and made the usual application for its admission to probate; that with A. L. Atkinson he was appointed one of the executors and duly qualified as such, and thereupon took upon himself the duties of an executor, collected the assets of the estate, paid debts and legacies in the due course of the administration to the amount- of several thousand dollars; that he made an application to the probate court for the payment to him, in money, of a legacy and received full payment thereof, and afterwards made an application to the probate court for a certificate under the statute which would entitle him tó a transfer of certain real estate devised to him, received the certificate and caused the real estate to be transferred to him.

*429'The judgment of the trial court found the above matters to be true. We have no evidehee before us upon which to review the finding.

The right of the plaintiff to maintain this action depends entirely upon the right of her husband, Delos Patterson. She succeeded to his right in the estate and is a party in interest, under Section 12079, General Code, and would have the same right to make the contest that he had, but her right is no greater than his. If he lost the right to make a contest, then her right is also gone.

After having performed all the acts he performed as shown by the record, could Delos Patterson have maintained an action to contest the validity of his father’s will? That is to say, could he take all of the provisions made for him in the will and have the right to say that the instrument under which he received them was invalid? Can he say, “I will take all I can get and after I get all I can, under the will, I will exercise my statutory right to contest it?”

To state this proposition is sufficient tó refute it The law is clearly stated in the case of *Utermahle*v. *Norment,*197 U. S., 40:

“The rule of law is, that the party taking the benefit of a provision in his favor under a will is estopped from attacking the validity of the instrument.”

On page 57 the court says:

“ As to what is the law relating to a party taking the benefit of a provision in his favor under a will, there is really no foundation to dispute the proposition that he thereby is precluded from at the same time attacking the validity of the very instrument under which he receives the benefit.”

And, in commenting further upon the question the court cites the following authorities, *Hyde*v. *Baldwin,*17 Pick., 303; *Drake*v. *Wilde,*70 Vt., 52; *Brenson*v. *Watkins,*96 Ga., 55; *Smith*v. *Smith,*14 Gray, 532; *Frye*v. *Morrison,*159 Ill., 244, and many other cases.

The only case cited to us from Ohio is *Leedy*v. *Cockley,*14 C. C. Rep. (N.S.), 72, where it is held:

*430"A daughter who went into possession of land devised to her by the will of her father and leased the land and collected the rent under the lease from the date of the probate of the will, is estopped thereby from contesting the validity of the will.”

Counsel have cited us a large number of eases in which it was held that acts of acceptance of certain provisions in wills by parties interested did not preclude them from afterwards contesting the will, but these cases nearly or quite all went' off on particular facts which the courts held in those eases :did not' estop the parties from making the contest. They do not conflict with the rule adopted in the case at bar.

Judgment affirmed.

Pollock, J., and Farr, J., concur.