It seems clear that the testator used the word estate as including all the property he possessed at the time of his death.
Mrs. Ward received from the executor and retains the purchase-money paid for the entire one-third of the lot. She has not offered to return any portion of it. The presumption is, that she knew when she received it that it was the proceeds of the sale, but whether she did or not is immaterial.
The fact that she still retains it is undisputed. She cannot have both the money and the land. This is a principle of equity founded upon reasons so plain that it need but be stated.
By the receipt of the money she ratified the sale, and she is now estopped from asserting title to that part of the lot sold, the proceedsof which she received and retains. (2 Smith's Leading Cases, 6th Am. ed. 769-70; Smith v. Warden, 7 Har. 424; The State v. Stanley , 14 Ind. 109; Table v. Wiseman, 2 Ohio St. 217; Maple v. Kussart, 53 Penn. 352; Simpson's Appeal, 8 Penn. 199.)
OPINION By the Court:
The will of Samuel H. Ward, deceased, purports to devise an undivided one-tenth of his real estate to his sister, Mrs. Verner, and all the rest and residue thereof to his wife, from whom the plaintiff deraigns his title. There is nothing on the face of the will to indicate that the testator attempted to devise property of which he had not the disposition, nor does the deed executed by Philo H. Perry, executor, under the power in the will, purport to convey any other estate than " the right, title and interest" of the testator in the property described in the complaint. There was, therefore, no alternative upon which the election of the widow could be exercised. If, in ignorance of the law, the executor supposed he was selling, and the purchaser supposed he was buying a larger interest than belonged to the estate, it was the misfortune of the latter. There is nothing in the record to show that the widow was better informed than they when she accepted her portion of the proceeds of the sale. If ignorance or mistake of law should enlarge the estate transferred by the executor's deed, it should excuse her, for the very essence either of an election or ratification is, that it is done advisedly, with full knowledge of the party's rights.
It is said that if the wife intended to insist upon her right to one-half of the common property, she should have repudiated the provisions in the will in her favor. But the deceased had full right to dispose of his own half of the community property, and, as the case is presented, two circumstances are lacking in the proofs: First. That he attempted to dispose of more; and, second, that she knowingly performed any act indicating, or which could be construed to be, a waiver of her rights under the will. The devise must be read as applying only to the estate within his power of testamentary disposition. As was said in the Estate of Silvey, " A purpose to attempt the disposition, by will, of property which, by statute, would pass to the wife, as survivor of the matrimonial community immediately upon his death, is not to be readily inferred, especially where, as here, the words employed by the testator may have their fair and natural import by applying them to that of which he had by law the testamentary disposition." (42 Cal. 213.)
Order reversed.