#### Wright, Administrator, *v.*Masters et al.

*Lands acquired by testator*— Subsequent *to the execution of will —Do not pass, when*— Section *5969, Revised Statutes.*

Lands acquired by a testator subsequent to the execution of his will, do not pass thereby unless the testator’s intention to include therein such after-acquired property, clearly and manifestly appears on the face of the will itself, as required by Section 5969, Revised Statutes.

(No. 11368

Decided December 21, 1909.)

Error to the Circuit Court of Hocking county.

On June 5, 1893, Robert Masters duly executed his last will and testament of which the following is a copy:

“In the name of the Benevolent Father of all, I, Robert Masters of Murray City, Hocking county, Ohio, do make and publish this my last will and testament.

“Item 1st: — I give and devise to my beloved wife, Mary Masters, in lieu of her dower the following real estate, to-wit: Being inlots number one, two, three, four, five and twelve in Murray City, Hocking county, Ohio, with all appurtenances thereto, also a lot recently purchased from James Watkins, being and lying on the west end of Lot No. 13, now owned by Dr. J. Trimmer and joining my Lot No. 1 on the north side, during life, and all the stock, moneys, household goods, furniture, provisions, and other goods, and chattels which may be thereon at the time of my decease, during her natural life as aforesaid; she however selling so much thereof as may be sufficient to pay my *305just debts; at the death of my said wife the real estate aforesaid, I give and devise to my children and their heirs; I give and devise to Lucy Babbs or Lucy Masters, the child I am raising and apprenticed to me by its mother, Margaret Babbs, the organ I now own, also five hundred dollars ($500.00) in money, the same to be paid her out of the lands and chattels aforesaid.

“Item 2d: — I do hereby nominate and appoint, without bond, my beloved wife, guardian of the above named Lucy Babbs and known as Lucy Masters, until the said Lucy Babbs or Lucy Masters arrives at the age of eighteen years or intermarries.

“Item 3d: — I do hereby nominate and appoint my wife executrix without bond of this my last will and testament hereby authorizing and empowering her to compromise, adjust, release and discharge in such manner as she may deem proper the debts and claims due me; I do also authorize and empower her, if it shall become necessary in order to pay my debts, to sell by private sale or in such manner, upon such terms of credit or otherwise, as she may think proper, all or any part of my real estate and deeds to purchasers to execute, acknowledge and déliver in fee simple. I desire that no appraisement and no sale of my personal property be made, and that the court of probate direct the omission of the same in pursuance of statute.

“In testimony hereof, I have hereunto set my hand and seal, this 5th day of June, A. D. 1893.

“Robert Masters. [Seal.]

*306“Signed and acknowledged by said Robert Masters, as his last will and testament in our presence and signed by us in his presence.

“A. M. Shrader,

“Eloid Si-irader,

“A. J. Shrader."

The testator, Robert Masters, died July 13, 1902, leaving surviving him Mary Masters his widow, and Daniel Masters, Frances Spencer and Anna B. Thomas, his next of kin and only heirs at law. On July 30, 1902, the will of said Robert Masters was duly admitted tc probate by the probate court of Hocking county and Mary Masters, his widow, was appointed executrix thereof. Prior to his death, but after the making and execution of his will, Robert Masters sold and conve3^ed lot number twelve, which *hy*item first of said will he had devised to ’his wife, Mary Masters, for and during her natural life. Thereafter the testator Robert Masters acquired by purchase, and at the time of his death owned and was seized of, the following described parcels of real estate: Being ten feet off of the north side of lot number fifteen of Watkins’ addition to the village of Murray City, Hocking county, Ohio. Also that strip of land lying between the west boundary of said ten feet off of said lot number fifteen and the stream known as Snowforlc, and extending from said west boundary of said ten feet to the stream, said strip being in Flocking county, Ohio. Also twenty feet off of the south side of lot number sixteen of Watkins’ addition to the village of Murray City, Flocking county, Ohio. Also that strip of land lying *307between the west boundary of. said twenty feet off of the south side of said lot number sixteen and the stream known as Snowfork and extending from said west boundary of said twenty feet to the said stream, said strip being in Hocking county, Ohio. Mary Masters having formally elected to take under the will of her deceased husband, claimed, as devisee, a life estate in the premises last above described, and in her lifetime collected and appropriated to her own use rents and profits arising therefrom to the amount of $651.00. Mary Masters died February 7, 1905, and subsequently plaintiff in error; O. W. FI. Wright, was duly appointed administrator of her estate. On July 14, 1906, the defendants in error herein brought suit in the court of common pleas of Flocking county against said O. W. H. Wright as administrator of said Mary Masters,. to recover said sum of six hundred and fifty-one dollars so received and collected. by her as rental from said after-acquired property. In said action Frances Spencer refusing to join as plaintiff was made a defendant. By way of answer to the petition of plaintiffs in said action the administrator pleaded three several defenses: First, that Robert Masters did not die intestate as to the property described in plaintiffs’ petition, but that under and by the provisions of his will said property passed to, and became the property of, Mary Masters for and during her natural life. The second defense was. a plea of *estoppel.*The third defense went out on demurrer and is not here involved. Plaintiffs replying to the second defense denied specifically the several matters relied upon as creating an estoppel *308so far as the same were pertinent and well pleaded. The trial in the court of common pleas resulted in a verdict and judgment in favor of the defendant O. W. IT. Wright, administrator. This judgment was reversed by the circuit court, and we are now asked to reverse this judgment of the circuit court and to affirm the judgment of the court of common pleas.

*Mr. O. W. H. Wright,*for plaintiff in error.

Our contention in this case is, that Robert Masters did not die intestate as to the real estate described in the petition. This is apparent from the whole will; and is so as a matter of law, in view of the will and the facts admitted to be true by the pleadings below.

Robert Masters intended that his wife should have all his property at his death.

The common law rule as to after-acquired property does not obtain in Ohio. Section 5969, Revised Statutes; *Ridenour*v. *Callahan,*8 C. C., N. S., 585.

It is, or may be claimed, that it does not “clearly and manifestly appear” from Masters’ will that he intended to devise after-acquired property. As to the rules of construction in wills see *Carrel*v. *Carrel,*24 C. C., 416; *Brimmer*v. *Sohier, Exr.,*55 Mass., 118; *Winchester*v. *Forster, 57*Mass., 366; *James, Exr.,*v. *Pruden,*14 Ohio St., 251; *Lessee of Smith*v. *Jones,*4 Ohio, 116; *Farrar, Admr.,*v. *Fallestine, 4 C.*C., 235; *Cushing et al.*v. *Aylwin,*12 Met., 169.

Section 5964, Revised Statutes, makes it “the duty of .the court to explain the provisions of the will, the rights under it, and by law in the event *309of a refusal to take under the will.” Rockel’s Probate Practice, Section. 1223.

Then, if there is still doubt, either party concerned can file a petition in court for construction of will under Section 6202, Revised Statutes.

All the parties accepted the situation. If it was a mistake, Mrs. Masters could have filed a petition to set aside her election. But she died before anyone claimed, or discovered any mistake; and it would be injustice now to disturb the relations and situation of the parties as they mutually placed themselves. Mrs. Masters was estopped by her action, in the absence of fraud or mistake, after she elected. Page on Wills, Section 814.

The doctrine of estoppel is set forth in: 5 Michie Ohio Digest, 721; *Castalia Trout Club Co.*v. *Sporting Co.,*8 C. C., 194; *Buckingham*v. *Smith,*10 Ohio, 288; *Tone*v. *Columbus,*39 Ohio St., 281; *Seeds*v. *Simpson,*16 Ohio St., 321.

The old, harsh definitions of estoppel, such as Lord Coke gave, and their applications, have been greatly mollified by modern decisions. The new doctrine is called “equitable estoppel,” a more potential name than the former common law *“estoppel in pais.”*Pomeroy’s Equity Jur. (3 ed.), Section 802. The best definition of “equitable estoppel” is from Stephen’s Digest, page 124.

*Mr. S. Weldy*and *Mr. H. E. Sparnon,*for defendants in error.

There is no language used in any part of the will whereby it could or would embrace after-acquired real estate. After-acquired property will only pass to the devisee when the will purports to embrace all the property of the testator.

*310Before the act of the first Victoria, enacted in 1837, there was no such thing as after-acquired property passing under a will in England without a re-publication of the same. The same rule pertains in every state of the United States except where the rule has been changed by legislative act. The exact time when- the rule was changed in. Ohio by the enactment of Section 5969, Revised Statutes, we are unable to say, but we are able to say that it was passed after the year 1836, which is manifest from the case of *Lessee of Reynolds*v. *Shirley,*7 Ohio (part 2), 39.

The distinction of the construction of devises of after-acquired property since the enactment of Section 5969 is that after-acquired property may now pass without a re-publication of the will, if such is the clear intention of the testator from the language used in the will. *Applegate*v. *Smith,*31 Mo., 169; 1 Jarman on Wills (5 Am. ed.), 606.

At common law rule, property acquired after making a will did not pass under a general disposition “of all my real estate.” *Havens*v. *Havens,*1 Sand. Ch., 324.

The language used by Masters, the testator, in his will, is not ambiguous or equivocal. The property devised is specific. The general clause in his will conferring on the devisee, the wife, the power of sale of any or all of his real estate, is also for a specific purpose, to pay debts if necessary. This conferred to the devisee a naked power of sale, nothing more.

We have yet to learn that a naked power of sale confers title. *Bane et al.*v. *Wick et al.,*19 Ohio, 328.

*311The second defense pleaded by the plaintiff in error is acquiescence on the part of the heirs at the probating of the will.

The defendants in error as the heirs and residuary legatees of Robert Masters acquiesced when the will was read, and they still acquiesce in all the provisions of the will as it reads, and as it is; they are not responsible for the misdirections given by the probate judge to the widow. The fact is, that both parties labored under a mistake. Mrs. Masters believed that the testator had given her a life estate in all his real estate, and the defendants in error were of the same opinion. Where two parties labor under a mutual mistake, neither party can lose any rights thereby. *McAfferty*v. *Conover’s Lessee, 7*Ohio St., 99; *Pennsylvania Co.*v. *Platt, 47*Ohio St., 366.

Crew, C. J.

The soie controversy between the parties hereto is as to who is entitled to receive the rent arising from certain real estate purchased by the testator, Robert Masters, after he had made and executed his last will and testament. The amount of the rent — -six hundred and fifty-one dollars — arising from said property is not in dispute, and it is admitted that Mary Masters, widow of testator, in her lifetime collected and appropriated said rent to her own use, she claiming the right thereto, as devisee of a life estate in said after-acquired property, under the will of her deceased husband. Upon the record now before us one of the questions presented is: Did this real property acquired and purchased by Robert Masters after the making and execution of his last will and testament, by force of the provisions of said will, *312pass to and become the property of Mary Masters for and during her natural life? We are clearly of opinion that this must be answered in the negative. It is well known that at common law a testator could transmit by devise only such lands as were owned by him at the time of executing his will, and after-acquired real property was not permitted to pass by testamentary devise unless, after the acquisition of such property; there was' a re-publication of the testator’s will. This rule of the common law has, however, been so far modified by statute in this state that' property acquired by a testator subsequent' to the execution of his will, shall pass thereby, if, from the will itself, it shall appear with sufficient clearness that such was the intention of the testator. Section 5969, Revised Statutes, provides that: “Any estate, right or interest in lands * * * acquired by the testator after the making of his will shall pass thereby in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.” The language of this statute clearly indicates its limitation, and shows it to have been the purpose of the legislature to restrict its operation to those cases where the intent of the testator to pass after-acquired property is clearly and sufficiently disclosed in his will. Hence, in every instance the question involved becomes one of construction, and the intent of the testator must be sought in the will itself. The will under consideration in the present case makes no reference whatever in any of its provisions to after-acquired property. The property therein devised by item one to Mary Masters during her life is defi*313nitely designated and specifically described, and there is in the provisions of said will no hint or suggestion anyjvhere of a purpose on the part of the testator to give her more than the property thus specifically described. This will contains no residuary clause, and there is in it no clause, either general or specific, under which the property in controversy would or could pass to Mary Masters as devisee, even if the testator had owned the same at the time he executed said will. While the presumption is,- where one has made a will, that he did not intend to die intestate as to any part of his property, yet this presumption against partial intestacy neither requires nor authorizes the court to make for the testator a new will, or to include in the will made by him property not comprehended by its terms. It is, however, insisted by counsel for plaintiff in error in his brief, that the language employed in item three of this will, taken and considered in connection with the other provisions thereof, show it to have been the intention of testator .that his wife, Mary Masters, should take by said will all the real property of which he should die possessed; but by what logic such conclusion is, or may be, properly reached, we are not told. Item third reads as follows: “I do hereby nominate and appoint my wife executrix without bond of this my last will and testament, hereby authorizing and empowering her to compromise, adjust, release and discharge in such manner as she may deem proper the debts and claims due me; I do also authorize and empower her, if it shall become necessary in order to pay my debts, to sell by private sale or in such manner, upon such terms of credit or otherwise, *314as she may think proper, all or any part of my real estate and deeds to purchasers to execute, acknowledge and deliver in fee simple.” This provision, while it confers upon Mary Masters as executrix the power to sell part or all of testator’s real estate if necessary to pay debts, does not purport to give to her any title to, interest in, or control over said real estate, except such as may be necessary to the proper execution of the power so conferred. We. are, therefore, upon a consideration of all the provisions of the will of said Robert Masters, of opinion that Mary Masters, his widow, did not, under the devise to her in said will, take any title to the property described in plaintiffs’ petition which was acquired by testator subsequent to the execution of his will. It follows therefore necessarily, that as devisee, she was not entitled to collect and receive the rents and profits arising therefrom. As to the second defense *pleaded*— estoppel—there being no conflict or dispute in the evidence introduced at the trial upon this issue, the question here presented becomes one of law, and without now attempting to review or discuss this evidence at length, we think it sufficient to say upon this branch of the case, that assuming as established every fact which this evidence tends to prove, it wholly fails to sustain or make out the defense pleaded.

*Judgment of the circuit court reversing the judgment of the court of common pleas affirmed, and final judgment entered for defendants in error.*

Summers, Spear, Davis, Shauck and Price, JJ., concur.