WHITE, C.
The plaintiff sued in ejectment for a one-fourth interest in certain real estate in the city [325] of St. Louis, and in a second count of the petition demanded partition of the same alleging that the plaintiff was entitled to an undivided one-fourth interest in fee simple in the premises; the defendant Bernard P. Bogy to an undivided one-half interest, and the defendant Bernard P. Bogy, Jr., to an undivided one-fourth interest. Plaintiff is the daughter, and defendant Bernard P. Bogy, Jr., is the son, of Eleanor M. Bogy, deceased, and defendant Bernard P. Bogy is the surviving husband of Eleanor M., and the father of Violet and Bernard P., Jr. Plaintiff claims under the will of her mother who died June 10, 1904. Defendant Bernard P. Bogy in his separate answer asserts his right to possession of the property in dispute, by virtue of his curtesy.
The plaintiff in reply set up the will of Eleanor M. Bogy, alleged that Bernard P. Bogy accepted its provisions, and elected to take under it, and further alleged that by such acts he was estopped to claim any interest in the real estate contrary to its provisions. The first clause of the will is as follows:
“First. Should I die leaving surviving me my husband and a child or .children, then it is my will that my whole estate, real and personal, be divided between my husband and children, in the proportion of one half to my husband and one half to my child or children. ’ ’
The third clause is as follows:
“Third. Should I die leaving surviving me neither husband nor children, then and in such event I give, devise and bequeath my whole estate, both real and personal, to my mother Ann E. Griffith.”
The fourth clause appoints Bernard P. Bogy executor and requests that he may serve without bond. The judgment of the circuit court was in accordance with the prayer of the petition.
[326] Taking Under Will and Curtesy Besides. [325] I. If it was the intention of the testatrix by the first clause of the will to give her husband an undivided [326] one-half interest in fee simple in the premises and to her children an undivided half interest in fee simple, and that intention clearly appears, then Bernard P. Bogy was put to his election. a.s to whether he would claim under the will or claim his curtesy devolved upon him by operation of law. The two claims are inconsistent. The children could not have their fee simple interest if his.curtesy should be carved out leaving them only a remainder, and he would not have a vendible, fee-simple, half interest in the property if he simply held his life estate in the whole.
The principle applicable here has been considered and discussed in all its important phases in recent adjudications of this court. The rule announced by this court may be stated thus: Where a testator by will attempts to dispose of property which the will cannot affect because by operation of the law it devolves upon another, and at the same time makes provision for such other out of property which the testator may devise, the other cannot accept the provision of the will without allowing his property to go as the will directs. [Stoepler v. Silberberg, 220 Mo. 258, l. c. 270; Wood v. Trust Co., 265 Mo. l. c. 525, and cases there cited; Lindsley v. Patterson, 177 S. W. l. c. 832; Schuster v. Morton, 187 S. W. 2.] All those oases, under varying circumstances and construing different statutes, announce the principle in similar general terms.
Intention to Create Fee Simple Estate. II. It is claimed by appellant that the will by its-terms does not attempt to dispose- of the curtesy of Bernard P. Bogy, and therefore he is not put to his election. Appellant contends with much subtlety and plausibility that the use of the expression ‘ ‘ my whole estate, real and personal, ’ ’ could not include the estate and interest of the surviving husband; and further that the testatrix under the terms of the will as a whole, and the circumstances surrounding, could not have intended to pass any estate except that which lawfully she might devise, and therefore the effect of the will was merely [327] -to dispose of the remainder after the termination of the husband’s life estate, giving the plaintiff an undivided one-fourth in that remainder.
The term “estate” as used in instruments of this character does not necessarily mean the interest which one may have in certain property; it also has a popular significance, a general significance, to which the courts sometimes give effect. When applied to real estate the word is sometimes construed to mean the testator’s specific lands and not the quantity of interest he may have in them. [Godfrey v. Humphrey, 29 Am. Dec. 621, 18 Pick. 537.] “The word estate . . . may be used to express either the quantity of interest devised or to designate the thing devised.” [Hart v. White, 26 Vt. l. c. 267; Hudson v. Wadsworth, 8 Conn. 348, l. c. 358.] The word “estate” taken in this primary sense as used in a will has been held to be synonymous with the word “property.” [Foil v. Newsome, 50 S. E. (N. C.) l. c. 598.] According to some of the dictionary definitions it may mean “fortune,” “possessions.” So it does not necessarily follow that Because the testatrix speaks of her “estate” the word must be given its restrictive meaning which would include only her specific interest in the property. It is probable that when she used the expression “my whole estate, real and personal,” it was equivalent to saying “all my real estate and personal property.” Therefore, we may gather from 'the instrument, in the light of surrounding circumstances, what was the intention of the testatrix. Having ascertained that intention the solution of the question is at hand. [Burnet v. Burnet, 244 Mo. l. c. 497.]
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WHITE, C.
The plaintiff sued in ejectment for a one-fourth interest in certain real estate in the city [325] of St. Louis, and in a second count of the petition demanded partition of the same alleging that the plaintiff was entitled to an undivided one-fourth interest in fee simple in the premises; the defendant Bernard P. Bogy to an undivided one-half interest, and the defendant Bernard P. Bogy, Jr., to an undivided one-fourth interest. Plaintiff is the daughter, and defendant Bernard P. Bogy, Jr., is the son, of Eleanor M. Bogy, deceased, and defendant Bernard P. Bogy is the surviving husband of Eleanor M., and the father of Violet and Bernard P., Jr. Plaintiff claims under the will of her mother who died June 10, 1904. Defendant Bernard P. Bogy in his separate answer asserts his right to possession of the property in dispute, by virtue of his curtesy.
The plaintiff in reply set up the will of Eleanor M. Bogy, alleged that Bernard P. Bogy accepted its provisions, and elected to take under it, and further alleged that by such acts he was estopped to claim any interest in the real estate contrary to its provisions. The first clause of the will is as follows:
“First. Should I die leaving surviving me my husband and a child or .children, then it is my will that my whole estate, real and personal, be divided between my husband and children, in the proportion of one half to my husband and one half to my child or children. ’ ’
The third clause is as follows:
“Third. Should I die leaving surviving me neither husband nor children, then and in such event I give, devise and bequeath my whole estate, both real and personal, to my mother Ann E. Griffith.”
The fourth clause appoints Bernard P. Bogy executor and requests that he may serve without bond. The judgment of the circuit court was in accordance with the prayer of the petition.
[326] Taking Under Will and Curtesy Besides. [325] I. If it was the intention of the testatrix by the first clause of the will to give her husband an undivided [326] one-half interest in fee simple in the premises and to her children an undivided half interest in fee simple, and that intention clearly appears, then Bernard P. Bogy was put to his election. a.s to whether he would claim under the will or claim his curtesy devolved upon him by operation of law. The two claims are inconsistent. The children could not have their fee simple interest if his.curtesy should be carved out leaving them only a remainder, and he would not have a vendible, fee-simple, half interest in the property if he simply held his life estate in the whole.
The principle applicable here has been considered and discussed in all its important phases in recent adjudications of this court. The rule announced by this court may be stated thus: Where a testator by will attempts to dispose of property which the will cannot affect because by operation of the law it devolves upon another, and at the same time makes provision for such other out of property which the testator may devise, the other cannot accept the provision of the will without allowing his property to go as the will directs. [Stoepler v. Silberberg, 220 Mo. 258, l. c. 270; Wood v. Trust Co., 265 Mo. l. c. 525, and cases there cited; Lindsley v. Patterson, 177 S. W. l. c. 832; Schuster v. Morton, 187 S. W. 2.] All those oases, under varying circumstances and construing different statutes, announce the principle in similar general terms.
Intention to Create Fee Simple Estate. II. It is claimed by appellant that the will by its-terms does not attempt to dispose- of the curtesy of Bernard P. Bogy, and therefore he is not put to his election. Appellant contends with much subtlety and plausibility that the use of the expression ‘ ‘ my whole estate, real and personal, ’ ’ could not include the estate and interest of the surviving husband; and further that the testatrix under the terms of the will as a whole, and the circumstances surrounding, could not have intended to pass any estate except that which lawfully she might devise, and therefore the effect of the will was merely [327] -to dispose of the remainder after the termination of the husband’s life estate, giving the plaintiff an undivided one-fourth in that remainder.
The term “estate” as used in instruments of this character does not necessarily mean the interest which one may have in certain property; it also has a popular significance, a general significance, to which the courts sometimes give effect. When applied to real estate the word is sometimes construed to mean the testator’s specific lands and not the quantity of interest he may have in them. [Godfrey v. Humphrey, 29 Am. Dec. 621, 18 Pick. 537.] “The word estate . . . may be used to express either the quantity of interest devised or to designate the thing devised.” [Hart v. White, 26 Vt. l. c. 267; Hudson v. Wadsworth, 8 Conn. 348, l. c. 358.] The word “estate” taken in this primary sense as used in a will has been held to be synonymous with the word “property.” [Foil v. Newsome, 50 S. E. (N. C.) l. c. 598.] According to some of the dictionary definitions it may mean “fortune,” “possessions.” So it does not necessarily follow that Because the testatrix speaks of her “estate” the word must be given its restrictive meaning which would include only her specific interest in the property. It is probable that when she used the expression “my whole estate, real and personal,” it was equivalent to saying “all my real estate and personal property.” Therefore, we may gather from 'the instrument, in the light of surrounding circumstances, what was the intention of the testatrix. Having ascertained that intention the solution of the question is at hand. [Burnet v. Burnet, 244 Mo. l. c. 497.]
Appellant argues that the husband’s curtesy is a life estate vested on the death of his wife by force of the common law, and she could not have had in contemplation to dispose of it, as might be the case if she had specifically described the property instead of mentioning her estate. It should be noticed that the terms used in the statutes and in rules laid down in decisions defining and describing -the curtesy of the husband at common law [328] always mention it as an interest in his wife’s land. He acquires his right to the curtesy by virtue of it being “her land.” The statute (Sec. 536, R. S. 1909), empowering a married woman to devise land by will, mentions it as “her land,” and provides that such devise shall be subject to the rights of the husband to his curtesy. In all those instances “her land” is spoken of as designating the property which is under consideration and not her specific interest in it. The Married Woman’s Act óf 1889 applied to this property because the marriage took place in 1890. The husband’s common-law curtesy was a mere life estate, contingent on his outliving her. The wife had entire control and management of her real estate, and enjoyment of the usufruct free from her husband’s control. She could convey it without his joining in the deed and pass a fee simple title, subject only to the contingency that he might outlive her and claim his curtesy in it. [Farmers Exchange Bank v. Hageluken, 165 Mo. 443; Kirkpatrick v. Pease, 202 Mo. l. c. 490.] Yery naturally she would call it “my real estate,” and when she mentioned her “estate real and personal” in the will, she intended the words to have the same force as such words have when used in the statutes, and desired them, to be as inclusive as if she had used a specific designation and description of the property to be affected.
Furthermore, the third clause of the will provides that if her husband and children do not- survive her, her “whole estate, both real and personal,” shall go to her mother. Of course, it cannot be questioned that the third clause, if the conditions were such that it would apply, would pass the fee simple estate. There is no reason to suppose that by the use of those words in one clause of the will she meant to devise merely a remainder and in another clause she meant by the same words to pass the entire estate. Nor is it likely that she intended to pass a larger interest in the personal property than in the real estate when using the words, “my whole estate, real and personal.” And, when she expressed her desire in the will by saying, “it is my will that my [329] whole estate, real and personal, he divided between nay husband and my children in the porportion of one-half to my husband and one-half to my child or children,” it is highly improbable that she thereby intended a higher and larger interest in the specific property should be vested in her husband than in her children. It would be unusual if she intended to restrict her children each to. an undivided one-fourth interest in remainder in the property when the law gave them the entire remainder. It is apparent that her purpose in making the will was to make some provision for the children in addition to what the law gave them, a provision which would go into immediate effect for their benefit.
Election. III. It is asserted, however, that even if the husband is put to a election he has not elected and may yet do so. It is true that an election being a choice between two alternatives, there would be none
if the appellant merely claimed both under the will and his right by curtesy. [Cobb v. Macfarland, 87 Neb. l. c. 411; Whitridge & Alexander v. Parkhurst, 20 Md. l. c. 70-1.] It is also a rule that when one is put to an election between two inconsistent courses and he first adopts one by some unequivocal art, that is an election which he cannot afterwards recall. [Stone v. Cook, 179 Mo. 534; Carper v. Crowl, 149 Ill. l. c. 480.] The appellant in this case now claims both his curtesy in the property and an undivided half interest in remainder under the will. Eleanor M. Bogy died in 1904 and the defendant Bernard P. Bogy, after her death, continued in possession of the real estate. That act was consistent with either a claim of curtesy or a claim under the will, because by the terms of the will he was tenant in common with his children who were minors living with him at the time. [Hynds v. Hynds, 253 Mo. l. c. 33; Boothe v. Cheek, 253 Mo. l. c. 130; Stevens v. Martin, 168 Mo. 407, l. c. 412; Seibert v. Hope, 221 Mo. l. c. 635; Rodney v. McLaughlin, 97 Mo. l. c. 431.] At that time he performed no unequivocal act indicating an intention to claim his curtesy, but he did certain things which unequivocally indicated an intention [330] to claim under the will. The will was in his possession at the time of his wife’s death. He presented it for probate to the probate court, making the usual affidavit. He applied for letters testamentary, making affidavit that he would ‘ ‘ faithfully execute the last will of the testatrix. ’ ’ He filed and swore to an inventory of the estate. This inventory sets forth the real estate here in dispute and lists no personal property. He filed his final settlement reporting there was no personal property for disbursement and was discharged.
The authorities are conflicting as to whether or not the mere qualifying and acting as executor is an election to take under the will. In California such acts are held insufficient to show election (In re Gwin, 77 Cal. 313; Estate of Frey, 52 Cal. 658); but in North Carolina the contrary is the rule (Mendenhall v. Mendenhall, 53 N. C. 287; Syme v. Badger, 92 N. C. 706): Many cases occur where such acts are noted as indicating an intention to elect, but are associated with other facts such as accepting a bequest. [Davidson v. Davis, 86 Mo. l. c. 444.] Many cases, cited in the text-books as holding that acting as executor is not an election, show facts which qualify the act: for instance, the case of Whitridge & Alexander v. Parkhurst, 20 Md. 62, where the executrix was claiming both under the will of her mother, of which she was executrix, and also under the earlier and conflicting will of her father; the case of Tyler v. Wheeler, 160 Mass. 206, where it was held the husband did not elect by qualifying as executor, because the will gave him nothing; the case of Kerrigan v. Conelly, 46 Atl. (N. J.) 227, where the surviving husband qualified as administrator with the will annexed, and he could carry out some provisions of the will which were not inconsistent with his claim under the law; the case of Reaves v. Garrett’s Admr., 34 Ala. 558, where the executrix qualified in ignorance of her rights; the case of Pace v. Pace, 271 Ill. 114, and In re Proctor’s Estate, 103 Iowa, 232, where the acts done as executor were not inconsistent with the claim under the law.
[331] Often it has been held that any act or declaration of the widow plainly indicating a purpose to take under the will, or recognizing the force of the will, constitutes an election. [Craig v. Conover, 80 Iowa, l. c. 358; Melot’s Estate, 231 Pa. 520. See also Appeal of Scholl, 17 Atl. (Pa.) 206.] Where a widow filed a petition asking the court to carry the will into effect, she was held by that act to have elected. [Ashlock v. Ashlock, 52 Iowa, l. c. 322.] She could not afterwards reconsider the election so made, for the Supreme Court of Iowa in deciding the case said: “The moment she made such election, it appears to us that her relation to the estate, as well as that of the other devisees, became fixed.” [See also Mitchell v. Vest, 136 N. W. (Iowa) 1054; Robertson v. Schard, 142 Iowa, 500.]
In this case the acts of Bernard P. Bogy in proving the will and qualifying under it, are inconsistent with any theory except an election to take under it. The absence of personal property emphasized the character of his acts. He could not say that he might execute the will in any particular and leave the real estate intact. The only property to be affected by it, as he must have known when he proved it, was the real estate now in dispute. His only reason for probating it and qualifying as executor was to carry out its provisions relating to the real estate. He received a benefit under it, because he acquired the vendible fee simple title to the half interest which it gave him. He had full knowledge of his rights.. He knew what the law would give him independent of the will, and he knew what the will would give him. He knew all the property affected by the provisions of the will. Having that knowledge he deliberately chose to put the will into effect, declaring that he would execute its provisions; therefore he elected to take under it.
The judgment is affirmed.
Boy, C., dissents.
PER CURIAM: — The foregoing opinion of White, C., is adopted as the opinion of Court in Banc.
Bond and [332] Walker, JJ., concur; Graves, G. J., Faris and Woodson, JJ., concur in separate opinion by Graves, G. J.; Blair, J., dissents; Williams, J., dissents, and adopts the opinion of .Roy, G-, as his dissenting opinion.