Isaac W. Smith, J.
In considering and disposing of this case, this court is sitting as the supreme court of probate; and the question is, whether the legal representatives of the legatee have precluded themselves absolutely by their act in receiving the legacy beqeathed to their intestate from further contesting the execution of the will.
[402]*402The doctrine, as applied by courts of equity in settling the rights of parties under the will after the same has been fully admitted to probate, with respect to the property to which the will applies, is well settled and familiar. It is, that one who has taken a beneficial interest under a will is thereby held to have confirmed and ratified every other part of the will, so that he will not be permitted to set up any right or claim of his own, however legal and well founded it may otherwise have been, which would defeat or in any way prevent the full operation of the will. Big. on Est. 578; 2 Redf. on Wills, ch. 14, sec. vi. The cases cited by Mr. Bigelow and also by Judge Redfield to the above proposition are all cases where the application of the will to the thing devised or bequeathed, and the rights of parties under it, was in question. To the same point are Hyde v. Baldwin, 17 Pick. 308, Hapyood v. Houghton, 22 Pick. 483, Smith v. Smith, 14 Gray 532, cited in the appellee’s brief. In no one of those cases is the effect of recovering a legacy while proceedings upon the probate of a will are pending, considered. They all relate to the doctrine of election. They all come to this, — that a legatee or devisee shall not be permitted to set up a claim inconsistent with or repugnant to the provision made for him in the will, and at the same time avail himself of the benefit which the testator undertook to confer by the will. The questions have arisen, not in courts of probate, but in courts of equity or courts of law, where there was no controversy as to the probate of the will.
The precise question before us seems hardly to have been touched by any American court. In the English practice the point occurs under the head of those entitled to cite the executor to prove the will per testes, or in solemn form, which exact form of proceeding is not found in most of the American states, although it is found in this state, and in Yirginia, Tennessee, and perhaps some other states. The authorities in those jurisdictions, where both forms of proof may be resorted to, are fully in point to show that one who has received a legacy under the proof in common form, may, by paying the amount received on his legacy into court, cite the executor to make proof in solemn form.
In Hamblett v. Hamblett, 6 N. H. 333, Parker, J., certainly recognizes in the most unequivocal manner the doctrine that a legatee who has received a.bequest under a will, by restoring to the executor what he has received, may afterwards contest the validity of the will. He says (p. 337), — “ It has been repeatedly held in the English ecclesiastical courts, that a legatee who has received a legacy by virtue of a will, must bring in the legacy before being permitted to contest the will. The will is founded in principles of justice, and seems to be sound law. The receipt of a legacy is, quoad the legatee, an affirmance of the will. It is acting under it, taking the benefit of it, and treating it as a valid instrument. Such affirmance, however, is not an absolute bar against the party seeking to contest the will, though under circumstances of delay, connected with other circumstances, it has been held to preclude the party from contesting the will afterwards. 1 Addams 375; 2 Phillemore 230, note b; Hoffman v. Norris.
[403]*403“ But if the party so having received a legacy afterwards desires to contest the will, there is great reason that he should tender to the executor, or bring into court, the amount received. The security of the executor may require this, and if the party can withhold it, he may at one and the same time treat the will as valid and invalid valid, as authorizing him to hold that portion of the estate to which he would be entitled under it, at the same time he is alleging that, from the insanity of the testator, or some other cause, it is wholly void and inoperative.
“In ordinary cases, therefore, when a party seeks to repudiate a will as insufficient, he must do so wholly and entirely by refusing, until it has been established, to receive the benefit of it; or, if anything has been received, by returning it to the executor, or placing it in the custody of the court, that the executor may have it in case the judgment should be against the validity of the will.” Bell v. Armstrong, 1 Addams, 365, and Braham v. Burchell, 3 Addams 243, are cited to this doctrine.
The doctrine is stated in 1 Jar. on Wills, 2d Am. ed., 214, as follows : “ A party who has received a legacy under a will, cannot be permitted to contest the validity of such will without repaying the amount of the legacy, or bringing the money into court; and the rule applies even if the party was a minor when the legacy was received ” — citing Hamblett v. Hamblett, and the English cases there referred to.
In Bell v. Armstrong (decided in 1822) the precise question was distinctly raised, and decided in favor of the right of the legatee to restore what he had received, and contest the will. Sir John Nicholl in that case says, — “Much is insisted in the protest on the brother’s acquiescence in the executor’s taking probate of the will. Now, without at all adverting to the grounds upon which that acquiescence is said to have been founded, I may observe, that a mere acquiescence (that is, an acquiescence accounted for by no special circumstances) on the part of the next of kin, to an executor’s taking probate, is no bar whatever to his calling it in, and putting the executor on proof of the will. If it were, no probate could be called in by a next of kin, unless immediately upon its becoming known to him that probate had been taken— the very contrary of which is matter of every day’s experience.
“ Nor, again, is acquiescence a bar, even though accompanied, as in this case, by a receipt of a legacy under the very will sought to be controverted. This has been determined in a great variety of cases. For instance, in that of Core and Spencer, which occurred here in 1796, where Spencer, the executor, was cited to bring in the probate of a will taken in 1788, eight years before, at the suit of Core, whose mother had received an annuity under that will for five of the eight years, and she, Core herself, her mother dying at the end of the fifth year, for the remaining three. Spencer, in that case, appeared under protest, as the executor has in this, and contended that Core was barred from putting him on proof of the will; but the court thought otherwise, and overruled the protest. That, however, was an infinitely [404]*404stronger case to build this argument upon than the present, if mere acquiescence and receipt of a legacy could bar. In the judgment delivered by my predecessor (Sir William Wynne) in the case of Core and Spencer, he adverted to various cases — Pyefinch v. Palmore, formerly Pyefinch, Prerog. 1767, Ashby v. Hay and Thrale, Prerog. 1768, Legge and others v. Brookman, formerly Cowdery, Prerog. 1777 — all authorities to the same point.
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Isaac W. Smith, J.
In considering and disposing of this case, this court is sitting as the supreme court of probate; and the question is, whether the legal representatives of the legatee have precluded themselves absolutely by their act in receiving the legacy beqeathed to their intestate from further contesting the execution of the will.
[402]*402The doctrine, as applied by courts of equity in settling the rights of parties under the will after the same has been fully admitted to probate, with respect to the property to which the will applies, is well settled and familiar. It is, that one who has taken a beneficial interest under a will is thereby held to have confirmed and ratified every other part of the will, so that he will not be permitted to set up any right or claim of his own, however legal and well founded it may otherwise have been, which would defeat or in any way prevent the full operation of the will. Big. on Est. 578; 2 Redf. on Wills, ch. 14, sec. vi. The cases cited by Mr. Bigelow and also by Judge Redfield to the above proposition are all cases where the application of the will to the thing devised or bequeathed, and the rights of parties under it, was in question. To the same point are Hyde v. Baldwin, 17 Pick. 308, Hapyood v. Houghton, 22 Pick. 483, Smith v. Smith, 14 Gray 532, cited in the appellee’s brief. In no one of those cases is the effect of recovering a legacy while proceedings upon the probate of a will are pending, considered. They all relate to the doctrine of election. They all come to this, — that a legatee or devisee shall not be permitted to set up a claim inconsistent with or repugnant to the provision made for him in the will, and at the same time avail himself of the benefit which the testator undertook to confer by the will. The questions have arisen, not in courts of probate, but in courts of equity or courts of law, where there was no controversy as to the probate of the will.
The precise question before us seems hardly to have been touched by any American court. In the English practice the point occurs under the head of those entitled to cite the executor to prove the will per testes, or in solemn form, which exact form of proceeding is not found in most of the American states, although it is found in this state, and in Yirginia, Tennessee, and perhaps some other states. The authorities in those jurisdictions, where both forms of proof may be resorted to, are fully in point to show that one who has received a legacy under the proof in common form, may, by paying the amount received on his legacy into court, cite the executor to make proof in solemn form.
In Hamblett v. Hamblett, 6 N. H. 333, Parker, J., certainly recognizes in the most unequivocal manner the doctrine that a legatee who has received a.bequest under a will, by restoring to the executor what he has received, may afterwards contest the validity of the will. He says (p. 337), — “ It has been repeatedly held in the English ecclesiastical courts, that a legatee who has received a legacy by virtue of a will, must bring in the legacy before being permitted to contest the will. The will is founded in principles of justice, and seems to be sound law. The receipt of a legacy is, quoad the legatee, an affirmance of the will. It is acting under it, taking the benefit of it, and treating it as a valid instrument. Such affirmance, however, is not an absolute bar against the party seeking to contest the will, though under circumstances of delay, connected with other circumstances, it has been held to preclude the party from contesting the will afterwards. 1 Addams 375; 2 Phillemore 230, note b; Hoffman v. Norris.
[403]*403“ But if the party so having received a legacy afterwards desires to contest the will, there is great reason that he should tender to the executor, or bring into court, the amount received. The security of the executor may require this, and if the party can withhold it, he may at one and the same time treat the will as valid and invalid valid, as authorizing him to hold that portion of the estate to which he would be entitled under it, at the same time he is alleging that, from the insanity of the testator, or some other cause, it is wholly void and inoperative.
“In ordinary cases, therefore, when a party seeks to repudiate a will as insufficient, he must do so wholly and entirely by refusing, until it has been established, to receive the benefit of it; or, if anything has been received, by returning it to the executor, or placing it in the custody of the court, that the executor may have it in case the judgment should be against the validity of the will.” Bell v. Armstrong, 1 Addams, 365, and Braham v. Burchell, 3 Addams 243, are cited to this doctrine.
The doctrine is stated in 1 Jar. on Wills, 2d Am. ed., 214, as follows : “ A party who has received a legacy under a will, cannot be permitted to contest the validity of such will without repaying the amount of the legacy, or bringing the money into court; and the rule applies even if the party was a minor when the legacy was received ” — citing Hamblett v. Hamblett, and the English cases there referred to.
In Bell v. Armstrong (decided in 1822) the precise question was distinctly raised, and decided in favor of the right of the legatee to restore what he had received, and contest the will. Sir John Nicholl in that case says, — “Much is insisted in the protest on the brother’s acquiescence in the executor’s taking probate of the will. Now, without at all adverting to the grounds upon which that acquiescence is said to have been founded, I may observe, that a mere acquiescence (that is, an acquiescence accounted for by no special circumstances) on the part of the next of kin, to an executor’s taking probate, is no bar whatever to his calling it in, and putting the executor on proof of the will. If it were, no probate could be called in by a next of kin, unless immediately upon its becoming known to him that probate had been taken— the very contrary of which is matter of every day’s experience.
“ Nor, again, is acquiescence a bar, even though accompanied, as in this case, by a receipt of a legacy under the very will sought to be controverted. This has been determined in a great variety of cases. For instance, in that of Core and Spencer, which occurred here in 1796, where Spencer, the executor, was cited to bring in the probate of a will taken in 1788, eight years before, at the suit of Core, whose mother had received an annuity under that will for five of the eight years, and she, Core herself, her mother dying at the end of the fifth year, for the remaining three. Spencer, in that case, appeared under protest, as the executor has in this, and contended that Core was barred from putting him on proof of the will; but the court thought otherwise, and overruled the protest. That, however, was an infinitely [404]*404stronger case to build this argument upon than the present, if mere acquiescence and receipt of a legacy could bar. In the judgment delivered by my predecessor (Sir William Wynne) in the case of Core and Spencer, he adverted to various cases — Pyefinch v. Palmore, formerly Pyefinch, Prerog. 1767, Ashby v. Hay and Thrale, Prerog. 1768, Legge and others v. Brookman, formerly Cowdery, Prerog. 1777 — all authorities to the same point. At the same time it was held in every one of these (and indeed they were principally cited in that case of Core and Spencer, for the purpose of showing) that the legatee must bring in his legacy before being permitted to contest the will, — under the authority of which I hold that I am bound, in overruling this protest, to direct the legacy to be brought in before the brother proceeds. The bringing in of his legacy will be a test of the sincerity of his opposition to the validity of the will, and will prove it to be not merely vexatious. At the same time it will be security to the executor, in case of the next of kin being condemned in costs.”
The same doctrine was also held and applied by the same great judge in Braham v. Burchell, 3 Add. 248, decided in 1826.
In the case before us, the probate of the will was contested by the guardian of the legatee, and while the proceedings were pending in this court on appeal from a decree of the judge of probate, the legatee having died, his administrators received the legacy of their intestate from the executor of his father’s will. We think this circumstance alone is not sufficient to bar the further prosecution of this appeal. The administrators might compromise and adjust the controversy as to the validity of the will. If they did so, that would of course be an end of this appeal. Receiving the legacy is doubtless evidence of an intention to affirm the will, and so of an intention to abandon proceedings in which its validity is questioned. But the administrators here both say the effect of receiving the legacy upon this appeal was not in their minds; that they did not understand they were thereby precluding themselves from further contesting the validity of the will, one of them saying he signed the receipt with the understanding that it was not to have any effect on the suit; and it is conceded by all that the effect of receiving the money was not mentioned at the time it was paid, although the executor understood in his own mind that it would constitute a bar to the further prosecution of the appeal. There has been no great delay, and there is no other circumstance, unless it be that the administrators were lawyers, to take this case out of the rule, as it is understood to be settled by the cases referred to.
We think the question in this case really is, whether there was, in fact, a mutual understanding that the appeal should be no further prosecuted at the time the legacy was paid and received. The fact that the administrators were lawyers, doubtless has a bearing upon the question of how they understood it. The act was beyond question inconsistent with a denial of the validity of the will; and a lawyer probably ought to have so understood it, at least better than one less accustomed to matters of that sort. But they say they did not so [405]*405understand it, and we think the evidence is, upon the whole, insufficient to show affirmatively that there was an agreement of minds between the parties that the appeal should not be further prosecuted. That being so, they should be allowed to repay the money to the executor, or pay the same into court; and thereupon the proceeding to test the validity of the will should be permitted to proceed.
Appellant's motion granted.