BAPTIST, J.
The bill was filed in the Chancery Court of Shelby County by the complainant below, Bessie E. Duncan, against the defendant below, Fred J. Peebles, individually, and as executor of the estate of Lida Kurtz Billingsley, and in which she claimed the title to certain personal property which is specifically described in the bill, consisting of jewelry, bonds and stocks.
It alleges that the defendant was appointed executor of the will of Lida Kurtz Billingsley, and that the property in question has come, or should have come, into the possession of the defendant; that the complainant is a beneficiary under said will, having been devised certain real estate, called the homeplace, at 114 Pontotoc Avenue in Memphis.
That in his lifetime Daniel Kurtz, husband of the testatrix, on September 5, 1905, made a gift to his wife, the testatrix and the complainant of said real estate and
personal property located at 114 Pontotoc Avenue, together with jewels bought by him evidencing the same by a written instrument.
That the testatrix recognized the gift of the said property to be to her for life and recognized the complainant’s right to said property at her death.
The complainant’s claim to the personal property in question is based upon the written instrument mentioned above and which is as follows:
“Memphis, Tenn. September 5-
1905'
We the undersigned do agree among ourselves to the following terms and conditionsMy wife Lida Gates Kurtz is to have Stocks
&
Bonds; Beal estate and personal property located at 114 Pontotoc St., in the city of Memphis, Tenn. and all jewels bought for her by myself Dan Kurtz, until, her death, at which time all the above are to be given in full to have & to hold or dispose of as she may see fit to my niece Bessie Kurtz Eberwine, of Evansville, Ind., who has so lovingly helped to care for and comfort me during my last illness.
Signed Lida G. Kurtz
Daniel Kurtz
Bessie Eberwine
I acknowledge the attached agreement and the three signatures are true and legitimate.
Signed Lida K. Billingsley”
The contention of the complainant is that this instrument created a life estate in the property in Lida G. Kurtz, with vested remainder in the complainant.
The answer of the defendant admitted that a portion of the personal property described in the bill came into his possession, but denied that he had received all of it.
It is alleged that the writing relied on by the complainant created no title in her to the property.
It is admitted that the complainant was a beneficiary under the will of Lida Kurtz Billingsley.
It is alleged that the complainant was also a beneficiary under the will of Daniel Kurtz, having been devised the sum of $2,000, and that she accepted the same; that the will of Daniel Kurtz gave to his wife, Lida G. Kurtz, the property now claimed by the complainant; that having accepted the provisions made for her in the will of Daniel Kurtz she is now estopped to claim the property given by Daniel Kurtz to his wife, Lide G. Kurtz, under the provisions of- his will.
At the close of the complainant’s proof the defendant moved the Court to withdraw the' issues from the jury and enter a decree in his favor.
The motion was allowed and a decree entered dismissing the complainant’s bill.
The material parts of the Chancellor’s opinion are embodied in the decree which is as follows:
“And the Court thereupon, on the evidence introduced, ordered, adjudged and decreed, as follows:
“That the jewelry described in the original bill, title to which was claimed by complainant in this cause, was owned in complete ownership by Lida Kurtz, wife of Daniel Kurtz, at and before the death of the said Daniel Kurtz; that, therefore, the said Daniel Kurtz had no right and was unable to make any gift of said jewelry to complainant herein and that the instrument of writing sued on herein, dated September 5, 1905, properly construed was, as to said Lida Kurtz, merely a promise by her to make a gift and, being without consideration, was, therefore, unenforcible. That, in addition to the foregoing reason, the complainant was named as a de-
visee in the will of Lida Kurtz Billingsley, deceased, she having been devised the house and lot known as premises 114 Pontotoc Avenue, Memphis, Tennessee, and having taken said real estate under said will, is estopped to claim the jewelry and other personal property described in- the bill which was bequeathed to the defendant under the residuary clause of said will.
“That the complainant was named as a legatee in the will of the said Daniel Kurtz, deceased, and complainant having accepted the provision made for her in said will, is estopped to claim title- to the stocks and bonds owned by the said Daniel Kurtz at the time of his death and bequeathed to his wife, the said Lida Kurtz, which said stocks and bonds are described in the original bill in this cause.
“That the complainant, having taken the real estate owned by the deceased, Lida Kurtz Billingsley, at the time of her death and known as premises 114 Pontotoc Avenue, Memphis, Tennessee, under the terms of the will of the said Lida Kurtz Billingsley, deceased, is estopped to claim title to any of the furniture, furnishings or other personal property located in said house, same having been devised to the defendant herein under the residuary clause of the will of said decedent.
“It is, accordingly, ordered, adjudged and decreed that the defendant, Fred J. Peebles, acquired title to all of the personal property described in the original bill filed in this cause, including the furniture, furnishings and personal property located in the house known as premises 114 Pontotoc Avenue, Memphis, Tennessee, which the said Lida Kurtz Billingsley owned at the time of her death and title to which was claimed by the complainant under said instrument of writing dated September 15, 1905, said defendant having acquired title thereto as the
residuary legatee under the will of the said Lida Kurtz Billingsley.”
From this decree the complainant has appealed and assigned errors.
The written instrument executed by Lida G-. Kurtz, Daniel Kurtz and Bessie Eberwine, dated September 5, 1905, and under which the complainant claims title to the property in question, has been set out.
Previously on July 18,1905, Daniel Kurtz had executed his will. He died in Shelby County in November 1905, and the will was offered for probate in the same month.
The parts of the will material in this case are as follows:
“Item I. After the payment of my debts, I devise my interest in a house and lot on Pontotoc Street, No. 114, to my wife, Lida Gates Kurtz.
“Item II. I give her all my stocks and bonds of which I may die possessed, and in addition thereto, ten thousand ($10,000.00) in cash.
“Item V. I bequeath to my nephews and nieces, of Evansville, Indiana, the following amounts: To Miss Bessie Eberwine, Two Thousand Dollars ($2000.00); to Alberta Eberwine, Two Thousand Dollars ($2000.00); to "William Eberwine, Two Thousand Dollars ($2000.00); to Phillis Eberwine, One Thousand Dollars ($1000.00); to Mrs. Warren, One Thousand Dollars ($1000.00'); to Mrs. Allen, One Thousand Dollars ($1000.00); to Mrs. Fannie Lavalle, One Thousand Dollars ($1000.00).”
Relative to the bequest to her in the sum of $2,000 the complainant testified that she did not receive but a small part of the bequest, the reason being that the executor was young and inexperienced and made a poor job in the administration of the estate; that she accepted the pro
visions of the will and got as much of the money as she could get out of the executor.
After the death of her husband Mrs. Kurtz continued to live in the home on Pontotoc Avenue which had been devised to her by the will of Daniel Kurtz and continued in possession of the personal property including the jewelry and household furniture, together with the stocks and bonds devised to her by her husband’s will.
Later Lida G. Kurtz was married to one George Bill-ingsley with whom she lived until his death in 1986.
During the last-mentioned marriage she conveyed to-Billingsley the home on Pontotoc Avenue, but later procured a reconveyance of the property from him to her. She also transferred to him title to certain stock in the State Savings Bank, but later he transferred the title in said stock from him to her. She disposed of the City of Memphis Water Department bonds devised to her under the will of Daniel Kurtz.
In October 1942 Mrs. Lida Kurtz Billingsley died and left a will the parts of which material to this case are as follows:
“Item 2. I give my home at 114 Pontotoc Avenue, corner Mulberry Street, in Memphis, Tennessee, to my. niece, Bessie Eberwine Duncan, 126 S. W. Sixth Avenue, Miami, Florida.
“Item 3. I have already giv’en my house and lot situated at 306¡ Beakes St., Ann Arbor, Michigan, to my sister Bernice Biddle Grams, per deed conveying same, and I hereby ratify and confirm said transfer and gift. I also give to my said sister my diamond ear-rings and all my personal wearing apparel.
“Item 4. I give my diamond ring set between sapphires to my grandniece, Mary Lee Billingsley, 880 Stonewall, Memphis, Tennessee.
“Item 5. I give all the rest and residue of my estate to my beloved friend and benefactor, Fred J. Peebles, 839 Maury St., Memphis, Tennessee. I further forgive and cancel all debts of the said Fred J. Peebles owing to me or to my estate at date of my death. I also hereby ratify and confirm power of attorney and trust agreement between myself and said Fred J. Peebles, dated May 30, 1939, and recorded in record book No. 451, page 116, in the0Register’s Office of Shelby County, Tennessee, and changes and amendments-to said power of attorney and trust agreement dated Sept. 8th, 1942, and recorded in Record Book No. 452, page 300, in the Register’s Office of Shelby County, Tennessee.
“Item 6. I hereby nominate and appoint the said Fred J. Peebles, as and for executor of this my last will and testament, and expressly waive the giving of bond by my said executor. I also desire and direct that said executor be relieved of filing any inventory of my estate or of making any report in connection therewith to any court whatever.
“In Witness Whereof, I have signed, sealed, published and declared this instrument as and for my last will and testament, this Oct. 9, 1942.”
The will was probated October 31, 1942.
The jewelry involved in the case consists of that bought by Daniel Kurtz for his wife. This appears from the instrument under which Mrs. Duncan claims and from her testimony. This jewelry or such parts of it as she had not disposed of remained in the wife’s possession until her death in 1942.
During the time she wás the wife of George Billingsley and in December 1935 she wrote a letter to the complainant, Mrs. Duncan, and from which we quote: “. . . Bessie — I may have trouble about property and I want
to ask you if you still have the paper you claimed to have about 'my home 114 Pontotoc reverting to you at my death. I hope you have, for I surely intend if I get it back to will it- to- you. I have an Attorney to take care of my rights. Another important question — have you the date of my going to the Hospital to be operated on for Gall-stones? If you have please send it to me.”
Again on June 14, 1936, she wrote to Mrs. Duncan “that I have made my will and you will get what your uncle wanted you to have and some more if I don’t have to sell them to live on.”
Again on July 1st she wrote to the complainant as follows: “This has been the hottest day I believe I every lived through. The 1st of course brought bills also a small dividend more than enough to pay one bill. Then I cut my coupons off from my 3 little water Bonds. George stole the other 7. I should think I would grieve for him — Monday being a Holly day I wanted to attend to this today — had I any idea it was so hot I would not have ventured out.”
The complainant contends that the Chancellor was in error in holding that the instrument relied .on was a promise to make a gift and being without consideration was unenforcible.
There is no contention that a consideration passed from the complainant to either Daniel Kurtz or his wife, Lida G. Kurtz.
In the case of Scott v. Union & Planters’ Bank & Trust Co., 123 Tenn. 258, 271, 130 S. W. 757, 761, it is said: “In section 1149 of the volume of Mr. Pomeroy already quoted, the author, returning to the subject of ‘delivery,’ says: ‘It is essential to the validity of a donation that the thing- given be delivered to the donee, or to his use. Without a delivery the transaction would only amount to
a promise to give, which, being without consideration, would be a nullity. The intention to give must be accompanied by a delivery, and the delivery must he made with an intention to give. . . . The delivery may he made directly to the donee, or to an agent or trustee on his behalf; hut not to an agent of the donor. It may he actual ... or constructive. A constructive delivery must be something which completely terminates vthe donor’s custody and control of the article donated and which places it wholly under the donee’s power, and enables him without further act on the donor’s part to reduce it to his own. manual possession. All the cases which hold a constructive possession to be good, whatever be their special circumstances, will be found to conform to this criterion; that the donor parts with all control and power of exercising dominion, while the donee obtains the exclusive power of taking physical possession and custody of the article, so that it is in fact placed under his sole dominion.’ ”
There was no delivery, actual or constructive, of the property mentioned in the agreement of September, 5, 1906.
Daniel Kurtz remained in possession and control of that part of the property owned by him until his death. By his will previously executed and which was not changed or modified, by codicil or otherwise, he revoked the provisions of the instrument relating to his property.
Lida Gates Kurtz also remained in possession of that part of the property belonging to her until her death nearly forty years later, and by her will revoked the provisions of the instrument relating to her property.
The instrument in question does not transfer or convey the property to the complainant, nor to Mrs. Kurtz as .trustee for the complainant. The agreement was that
Lida G. Kurtz was to have that part of the property, not belonging to her, until her death and then provides “at which time all the above are to be given in full . . . to my niece Bessie Kúrtz Eberwine. ” As stated there was no consideration for the promise from either Mr. and Mrs. Kurtz.
If at the time of the execution of the agreement the property of Daniel Kurtz had been delivered to Mrs. Kurtz, a question of parol trust might arise. This was not done. Daniel Kurtz remained in possession and control of his property until his death and by his will left the property in fee to his wife, and made another provision for the complainant.
Thus his construction of the instrument was not that' the complainant had a vested remainder in the property.
Mrs. Kurtz lived for nearly forty years after the death of Daniel. 'She remained in possession and control of Daniel’s property during that time, handling and disposing of it as she saw fit. As stated she conveyed the home to her second husband, later obtaining a reconveyance. She remained in possession and control of the jewelry she owned until the time of her death and by will left a part of it to a sister and the rest to the defendant by residuary clause.
In the letter of December 6¡, 1935, she states that if she got her property back she intended to will it to the complainant.
She transferred the bank stock as stated and disposed of all the Water Department bonds.
In her letter of June 14, 1936, she advises the complainant that she has made her will and that complainant will receive certain property if she did pot have to sell it to live op.
It is evident that the widow of Daniel Knrtz thought she had complete title to the property and that the instrument or agreement did not create a vested remainder in the complainant.
The complainant knew that during the years the articles of property were in her possession, Mrs. Billingsley exercised the right to sell or dispose of the property as she saw fit, and that she did so sell or dispose of the property at different times. With this knowledge she stood by for many years and voiced no objection to the sale or disposition of property in which she now claims a vested remainder.
“The interpretation given by the parties themselves to the contract as shown by their acts will be adopted by the court and to this end not only the acts, but the declarations of the parties may be considered. ’ ’ Canton Cotton Mills v. Bowman Overall Co., 149 Tenn. 18, 29, 257 S. W. 398, 402.
We think the acts of the three parties to the instrument sued on showed their construction of it to be that it was not a vested remainder created in the complainant, but was merely a promise or agreement that the property should be given to the complainant at the death of Lida G. Kurtz.
The complainant contends the Chancellor was in error in holding the doctrine of estoppel and election were applicable to the complainant and prevented her from taking the benefits of the alleged deed of gift and that since she took the bequests under the wills of Daniel Kurtz and Lida Kurtz Billingsley she elected to and was es-topped from claiming the benefits of the alleged deed of gift.' '
The complainant’s contention is that she was not put to an election because she had a valid claim or interest
in the property before the death of the testator; in other words that the doctrine of election does not apply except in case of property in which the testator has no interest.
In support of this contention complainant cites the cases of Rowlett v. Rowlett, 116 Tenn. 458, 95 S. W. 821; Walker v. Bobbitt, 144 Tenn. 700, 88 S. W. 327; and Glusler v. Miller, 78 Tenn. 90.
In the case of Rowlett v. Rowlett the widow sued the executor of the estate of her deceased husband for the proceeds of exempt property sold by him. It was insisted that the widow was put to an election because the will purported to dispose of the whole estate, including exempt property; that she took under the will and was estopped from claiming the exemption. The Court held this to be an erroneous view, that, under the statute, exempt property did not belong to the deceased husband’s estate and could not pass under the will; therefore, the widow was not put to an election.
In the case of Walker v. Bobbitt it was held that, where the testator had an interest by entireties in certain real estate, and made a will by which he attempted to dispose of the property, that is, of the land itself, the widow was not estopped to claim this land as survivor, although she accepted other provisions made for her by the will.
In the case of Gusler v. Miller, a tract of land was devised by the will of a mother jointly to several children. One of the children sold his interest, and later brought a contest of his mother’s will. The other eight children sought an injunction on the ground that by selling the land he had elected to stand by the will. The Court found that he had sold his interest on account of his poverty and before he had knowledge of the undue means by which the will had been obtained, therefore the doctrine of
election did not apply. The substance of this opinion is that a person cannot he put to an election in absence of knowledge of the facts.
In the case of Miller v. Fidelity Bankers’ Trust Co., 164 Tenn. 149, 46 S. W. (2d) 516, 518, in which the Court adopted the opinion of Presiding Judge Faw, of the Court of Appeals, the testator made provision for his wife hut left his home in Rogersville to a nephew. The widow sought to have this property set aside to her as a homestead and to also take the provision made for her by the will. The Court held that she was required to elect.
The opinion contains a full and learned discussion of the rights of homestead.
In the course of the opinion it is said:
“The general rule on the subject of ‘election between homestead rights and gifts by will’ is stated in Page on Wills (1st Ed.), sec. 716', p. 856, as follows:
“ ‘Where testator has so disposed of his property by will that some provision of the will will be defeated if the widow is given both the property devised to her by will and the homestead, the widow must elect between her rights under the homestead law and her rights under the will.’ ”
In discussing the case of Walker v. Bobbitt, supra, the opinion says: “The cáse of Walker v. Bobbitt, 1905, 114 Tenn. 7001, 88 S. W. 327, did not involve the question of an election by the widow between homestead (or dower) and a provision for her in her husband’s will. The land there involved was held by the husband and wife as tenants by the entirety, and the court held that the doctrine of election could not be invoked in such case. The
statement in that opinion, that the doctrine of election is not applied save in a case of property in which the testator has no interest, should be confined to the case there in judgment and analogous cases. Louisville & N. Railroad Co. v. Davidson County Court, 1 Sneed 637, 695 [33 Tenn. 637, 696], 62 Am. Dec. 424,; Cohens v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257; Blacks Law of Judicial Precedents, sec. 11, p. 49. Certainly the able and distinguished jurist who- prepared the opinion in Walker v. Bobbitt was not speaking with reference to the multitude of cases- wherein the courts have applied ‘the doctrine of election’ so as to require a widow to elect between the provision made for her by her husband’s will and homestead or dower (or both) in the lands of her deceased husband, many of which cases are digested in' 22 A. L. R, pages 437-524.”
On this question both parties cite- and discuss the latest opinion of the Supreme Court in the case of Elmore v. Covington, 180 Tenn. 128, 172 S. W. (2d) 809, 810.
The complainant’s position is that the case has no application to the facts of the instant case, the defendant’s contention is that the cases are analogous on the facts.
' The facts in the case of Elmore v. Covington, Opinion by Justice Neil, are that the brothers and sisters of Mrs. Lizzie Elmore Carroll filed a bill against the brothers and sisters of J. A. Carroll, husband of Mrs. Carroll, deceased, for breach of contract to make a will in favor of the complainants. Mrs. Carroll died intestate- and the complainants, as heirs at law, acquired two houses and lots that formerly belonged to Mrs. Carroll. The complainants deeded the houses and lots to J: A. Carroll upon an alleged agreement that J. A. Carroll would execute á will devising and bequeathing to them a share in his'éstate
equal to that given his own brothers and sisters. J. A. Carroll died and left a will in which he devised to the complainants the houses and lots and bequeathed to each of them $100 in cash.
By amendment to their bill the complainants alleged that they did not intend by the original bill to release what was devised to them by the will.
A motion to require the complainants to elect whether they would proceed with their claim or take under the will was sustained by the Court, from which the complainants appealed.
In the instant case the complainant contends that Mrs. Billingsley had a life estate in the .property, with vested remainder in the complainant and that the property did riot descend under the will; in other words, that the will undertook to dispose of property belonging to her.
Quoting from Elmore v. Covington:
“The testator in the instant case did not dispose of any property that beloriged to these complainants. While our decisions uniformly hold that the doctrine arises where the testator gives away property belonging to a legatee or devisee-; we find ample authority to sustain the contention that it also applies where one asserts conflicting rights to property, i. e., claiming under the will and making a separate claim against the estate. The cases cited by counsel, Bible v. Marshall, 103 Tenn. 324, 52 S. W. 1077; Battle v. Claiborne, 133 Tenn. 286, 180 S. W. 584; and Colvert v. Wood, 93 Tenn. 454, 25 S. W. 963, are not in conflict with this view. In applying the doctrine of election, which often involves the question of estoppel, the courts have not limited it to rights or interests that are wholly recognized or established.
“If the complainants are permitted to claim their devise and the. bequests and also prosecute a suit for damages for breach of contract to make a will, the result will he to wholly nullify the will of the testator. It is undoubtedly true that a creditor of an estate, who is also a beneficiary under a will, may prosecute his claim without surrendering his bequest where the bequest was not intended as a payment of the debt; hut in the instant case complainants are retaining benefits under the will and at the same time suing the defendants because the value of their devise and bequests is not as great as what they had hoped to receive.
“Mr. Pomeroy in discussing the equitable doctrine of election says:
“ 'This doctrine involves the notion that no man can claim inconsistent rights with regard to the same subject, and that anyone who asserts an interest under an instrument is bound to give full effect to the instrument; he cannot both accept and reject it, or avail himself of its benefits as to a part and defeat is provisions as to other parts.’ Pomeroy’s Equity Jurisprudence, sec. 395.
“It is true the author suggests that it arises where the donor devises a property or interest that belongs to the beneficiary.
“Now the inconsistent rights of complainants relate to the will of the testator and his failure to make a will devising them a greater interest in his estate. If the doctrine of election does not apply in these circumstances, the complainants will be enabled to use their interest to finance a lawsuit against the estate of decedent to the possible, if not probable, destruction of the rights and interests of others. This appears to us to be in violation
of the well known maxim ‘He who seeks equity must do equity,’ ”
The Court then quotes from a Washington case, Parkes v. Burkhart, 101 Wash. 659, 172 P. 908, as follows:
“ ‘Appellant is seeking to take under the will and at the same time set up a right or claim which, if well founded, would defeat the will in so far as it affects respondents. ... It is too well settled that one who accepts a benefit under a will must accept the whole will and ratify every portion of it.’ •
' “The principle thus announced follows our own case of Williams v. Williams, 83 Tenn. 438, 445, approving Hyde v. Baldwin, 17 Pick. (Mass.) 303, wherein it was held as an established rule in equity ‘that a man shall not take any beneficial interest in a will, and at the same time set up any right or claim of his own, even if otherwise legal' and well founded, which shall defeat, or in any way prevent, the full effect and operation of every part of the will.’ ”
In the instant case the complainant elected to take under the will of Daniel Kurtz a bequest of money which was not given to her in the alleged deed of gift. This same will under which she elected to take devised in fee to the widow the identical property set out in the alleged deed of gift. In complainant’s brief it is stated: “The answer filed by the defendant did not raise the issue of es-toppel by election under the Billingsley will and expressly confined it to an estoppel under the Daniel Kurtz will”, undertaking thus to revoke the rule that an estoppel must be pleaded. We treat this as relating to the assignment of error that the Chancellor erred in holding that the complainant'was estopped to claim property described in
tlie deed of gift because sbe was named as a devisee in the Billingsley will and took the real estate under the will.
“The rule requiring.estoppel to be specially pleaded is subject to the exception that in cases where the .estoppel appears in the pleadings of the adverse party, such estoppel need not be specially pleaded.” 19 Am. Jur. p. 838, sec. 182. . .
In Chandler v. Roddy, 163 Tenn. 338, 356, 43 S. W. (2d) 397, 403, the Court says: “It is said by the state that this estoppel is not sufficiently pleaded by the defendants to the petition. The facts, however, constituting the es-toppel, appear on the face of the petition.” And: “It is not necessary to plead an estoppel eo nomine. If the facts constituting an estoppel appear in some pleading, that is sufficient to permit the defense.” Boone v. Citizens Bank & Trust Co., 154 Tenn. 241, 290 S. W. 39, 50 A. L. R. 1369; Maryland Casualty Co. v. McTyier, 150 Tenn. 691, 266 S. W. 767, 48 A. L. R. 1168.
In complainant’s bill in the instant case she alleged that she is a beneficiary under the will of Mrs. Billingsley by having been devised the homeplace, and also seeks a decree vesting in her the personal property described in the bill and which was devised to the defendant and other beneficiaries. Thus it is shown that she accepts the provisions of the will in her favor and is attacking other provisions of the will.
We are of the opinion that the estoppel appears in the complainant’s bill and the rule is therefore not applicable in this case.
We find no error in the Chancellor’s conclusion and decree. The assignments of error are overruled and the decree of the . Chancery Court dismissing the bill is affirmed.
The complainant will pay the costs.
Anderson, P. J., concurs.
Ketchum, J., dissents.