BARROW, Justice.
This is a will contest involving the 1960 will of Mrs. Sarita K. East who died on February 11, 1961. The issue presented by this appeal does not concern the actual validity of the will. It is instead whether respondents, who are the widow and six children of Edgar Turcotte, deceased, have an interest in the estate of Mrs. East which will entitle them, or some of them, to contest the will. The district court, sitting without a jury, conducted a trial on the issue of respondents’ interest and entered a judgment which dismissed all respondents from the will contest on the ground that they are not interested persons within the meaning of Section 93 of the Texas Probate Code. On appeal, the court of civil appeals affirmed as to all respondents except Patrick A. Turcotte and Robert A. Turcotte. The judgmentpf the trial court insofar as it affects Patrick A. Turcotte and Robert A. Turcotte was reversed and remanded for trial on the merits. Turcotte v. Trevino, 544 S.W.2d 463 (Tex.Civ.App.—Corpus Christi, 1976). We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
The factual background of this case and the long history of the litigation is fully set out in the two opinions of the Thirteenth Court of Civil Appeals. See Turcotte v. Trevino, 499 S.W.2d 705 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.), and Turcotte v. Trevino, supra.1 We will repeat only those facts, circumstances, and legal principles necessary for the disposition of this appeal.
Mrs. East executed one will dated December 31, 1948, and another on January 22, 1960. Four codicils were subsequently made to the 1960 will. The 1960 will was duly admitted to probate and Edgar Tur-cotte qualified as one of three independent executors of the estate; he served in that capacity until his death on March 18, 1963. On July 25, 1962, petitioner Raul Trevino and 39 others filed a will contest. Numerous parties intervened including Patrick A. Turcotte, individually and in his capacity as Independent Executor of the Estate of Edgar Turcotte, who intervened along with Edgar Tureotte’s widow and other children on December 20, 1963. Marie Walker and her brother, Robert C. Putegnat, intervened on September 30, 1963. At one time there were over 120 contestants of the 1960 will. All contestants, with the exception of respondents, have now been finally dismissed, or have settled and agreed to probate the 1960 will.
None of the respondents is an heir at law of Mrs. East. Three of Edgar Turcotte’s children, Jack, Joe an L. E. Jr., were employees of Mrs. East at the time of her death and, as such, received cash bequests under the 1960 will. None of the other respondents is a legatee or devisee under either the 1948 or 1960 wills. Respondents urge, however, that they are “interested persons” in that they are the sole heirs at law, and the only beneficiaries under the will, of Edgar Turcotte, a cousin of Mrs. East and a devisee of substantial bequests in both the 1948 and 1960 wills. In addition, Patrick and Robert Turcotte claim to be interested persons in the East estate in their own right by virtue of assignments which they acquired from Marie Walker and Robert Putegnat. Patrick Turcotte [685]*685purchased a total of ten percent of Walker’s and Putegnat’s interests “in expectancy or otherwise as an heir at law or as a beneficiary under any valid will and testament of Sarita K. East, Deceased.” Marie Walker and Robert Putegnat are not beneficiaries under the 1960 will, but are beneficiaries under the 1948 will as well as remote heirs at law. Patrick Turcotte subsequently assigned ⅛2th of his interest to Robert Tur-cotte.
On June 1, 1971, during the trial on the validity of the 1960 will, the trial court dismissed these same respondents from the case then pending on the ground that they were estopped as a matter of law from contesting the 1960 will. That action was reversed by the court of civil appeals and the cause remanded with instructions that the issues of respondents’ interest must be tried separately and in advance of a trial on the validity of the will. 499 S.W.2d 705. This was done and, on June 26, 1975, the trial court entered a final judgment which dismissed respondents from the will contest.2
At the outset, since this is the second appeal of the case involving the issue of whether respondents are “persons interested,” we must consider whether or not the first opinion of the court of civil appeals established the “law of the case.” The doctrine of the law of the case is defined as that principle under which the initial determination of questions of law will be held to govern the case throughout its subsequent stages. Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.). Application of the doctrine is addressed to the discretion of this Court. Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066 (1896).
It should be recognized that neither the trial court nor the appellate court relied upon the doctrine as a basis for the judgment which is now before us. To the contrary, the second opinion of the court of civil appeals expressly stated that the record presented by the second appeal differs materially from that presented by the prior appeal. The court observed that the type and character of the pleadings, the allegations contained therein, and the theory of the attack differed in many respects in the two trials. The estoppel in the first trial court judgment was found as a matter of law without a full development of the facts. The case was remanded for such development and the second judgment was based on findings of fact by the trial court.
The first opinion held that the trial court’s judgment was erroneous and required a remand for several different reasons. By refusing the application for writ of error with the notation of “no reversible error” the Supreme Court approved only the result reached by the court of civil appeals and not necessarily all the statements as to the law in the opinion. Fant v. Howell, 547 S.W.2d 261 (Tex.1977).
We conclude that the first opinion did not establish “the law of this case” on the issue of whether or not respondents are “persons interested.”
After the trial on the interest of respondents, numerous findings of fact and conclusions of law were made by the trial court. Essentially, the trial court ruled that all of the respondents were estopped to contest the 1960 will because Edgar Tur-cotte, from whom the respondents received an interest in the East estate, would be estopped to contest the will in that he accepted and retained substantial benefits under the 1960 will. The court further held that Patrick Turcotte and Robert Turcotte were not “persons interested” in the estate by virtue of the assignments.
The court of civil appeals affirmed the ruling that respondents were estopped to attack the 1960 will in their capacities as devisees and legatees of Edgar Turcotte. We affirm that holding. It is a fundamental rule of law that a person cannot take any beneficial interest under a will and at [686]
Free access — add to your briefcase to read the full text and ask questions with AI
BARROW, Justice.
This is a will contest involving the 1960 will of Mrs. Sarita K. East who died on February 11, 1961. The issue presented by this appeal does not concern the actual validity of the will. It is instead whether respondents, who are the widow and six children of Edgar Turcotte, deceased, have an interest in the estate of Mrs. East which will entitle them, or some of them, to contest the will. The district court, sitting without a jury, conducted a trial on the issue of respondents’ interest and entered a judgment which dismissed all respondents from the will contest on the ground that they are not interested persons within the meaning of Section 93 of the Texas Probate Code. On appeal, the court of civil appeals affirmed as to all respondents except Patrick A. Turcotte and Robert A. Turcotte. The judgmentpf the trial court insofar as it affects Patrick A. Turcotte and Robert A. Turcotte was reversed and remanded for trial on the merits. Turcotte v. Trevino, 544 S.W.2d 463 (Tex.Civ.App.—Corpus Christi, 1976). We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.
The factual background of this case and the long history of the litigation is fully set out in the two opinions of the Thirteenth Court of Civil Appeals. See Turcotte v. Trevino, 499 S.W.2d 705 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.), and Turcotte v. Trevino, supra.1 We will repeat only those facts, circumstances, and legal principles necessary for the disposition of this appeal.
Mrs. East executed one will dated December 31, 1948, and another on January 22, 1960. Four codicils were subsequently made to the 1960 will. The 1960 will was duly admitted to probate and Edgar Tur-cotte qualified as one of three independent executors of the estate; he served in that capacity until his death on March 18, 1963. On July 25, 1962, petitioner Raul Trevino and 39 others filed a will contest. Numerous parties intervened including Patrick A. Turcotte, individually and in his capacity as Independent Executor of the Estate of Edgar Turcotte, who intervened along with Edgar Tureotte’s widow and other children on December 20, 1963. Marie Walker and her brother, Robert C. Putegnat, intervened on September 30, 1963. At one time there were over 120 contestants of the 1960 will. All contestants, with the exception of respondents, have now been finally dismissed, or have settled and agreed to probate the 1960 will.
None of the respondents is an heir at law of Mrs. East. Three of Edgar Turcotte’s children, Jack, Joe an L. E. Jr., were employees of Mrs. East at the time of her death and, as such, received cash bequests under the 1960 will. None of the other respondents is a legatee or devisee under either the 1948 or 1960 wills. Respondents urge, however, that they are “interested persons” in that they are the sole heirs at law, and the only beneficiaries under the will, of Edgar Turcotte, a cousin of Mrs. East and a devisee of substantial bequests in both the 1948 and 1960 wills. In addition, Patrick and Robert Turcotte claim to be interested persons in the East estate in their own right by virtue of assignments which they acquired from Marie Walker and Robert Putegnat. Patrick Turcotte [685]*685purchased a total of ten percent of Walker’s and Putegnat’s interests “in expectancy or otherwise as an heir at law or as a beneficiary under any valid will and testament of Sarita K. East, Deceased.” Marie Walker and Robert Putegnat are not beneficiaries under the 1960 will, but are beneficiaries under the 1948 will as well as remote heirs at law. Patrick Turcotte subsequently assigned ⅛2th of his interest to Robert Tur-cotte.
On June 1, 1971, during the trial on the validity of the 1960 will, the trial court dismissed these same respondents from the case then pending on the ground that they were estopped as a matter of law from contesting the 1960 will. That action was reversed by the court of civil appeals and the cause remanded with instructions that the issues of respondents’ interest must be tried separately and in advance of a trial on the validity of the will. 499 S.W.2d 705. This was done and, on June 26, 1975, the trial court entered a final judgment which dismissed respondents from the will contest.2
At the outset, since this is the second appeal of the case involving the issue of whether respondents are “persons interested,” we must consider whether or not the first opinion of the court of civil appeals established the “law of the case.” The doctrine of the law of the case is defined as that principle under which the initial determination of questions of law will be held to govern the case throughout its subsequent stages. Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.). Application of the doctrine is addressed to the discretion of this Court. Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066 (1896).
It should be recognized that neither the trial court nor the appellate court relied upon the doctrine as a basis for the judgment which is now before us. To the contrary, the second opinion of the court of civil appeals expressly stated that the record presented by the second appeal differs materially from that presented by the prior appeal. The court observed that the type and character of the pleadings, the allegations contained therein, and the theory of the attack differed in many respects in the two trials. The estoppel in the first trial court judgment was found as a matter of law without a full development of the facts. The case was remanded for such development and the second judgment was based on findings of fact by the trial court.
The first opinion held that the trial court’s judgment was erroneous and required a remand for several different reasons. By refusing the application for writ of error with the notation of “no reversible error” the Supreme Court approved only the result reached by the court of civil appeals and not necessarily all the statements as to the law in the opinion. Fant v. Howell, 547 S.W.2d 261 (Tex.1977).
We conclude that the first opinion did not establish “the law of this case” on the issue of whether or not respondents are “persons interested.”
After the trial on the interest of respondents, numerous findings of fact and conclusions of law were made by the trial court. Essentially, the trial court ruled that all of the respondents were estopped to contest the 1960 will because Edgar Tur-cotte, from whom the respondents received an interest in the East estate, would be estopped to contest the will in that he accepted and retained substantial benefits under the 1960 will. The court further held that Patrick Turcotte and Robert Turcotte were not “persons interested” in the estate by virtue of the assignments.
The court of civil appeals affirmed the ruling that respondents were estopped to attack the 1960 will in their capacities as devisees and legatees of Edgar Turcotte. We affirm that holding. It is a fundamental rule of law that a person cannot take any beneficial interest under a will and at [686]*686the same time retain or claim any interest, even if well founded, which would defeat or in any way prevent the full effect and operation of every part of the will. Miller v. Miller, 149 Tex. 543, 235 S.W.2d 624 (1951); Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633 (Tex.Com.App.1942, opinion adopted); Dunn v. Vinyard, 251 S.W. 1043 (Tex.Com.App.1923, judgmt adopted); Smith v. Negley, 304 S.W.2d 464 (Tex.Civ.App.—Austin 1957, no writ hist.). Respondents attempt to avoid this rule of law by arguing that the court of civil appeals’ holding is without support by proper pleading in the probate court, without support of credible evidence, and is contrary to law under the facts of this case.
Respondents contend that the pleadings in the probate court were not sufficient to raise the issue of estoppel by acceptance of benefits in the district court since not all elements of estoppel, specifically acceptance with knowledge, were pled. It is settled that on appeal to the district court from probate matters which have had their origin in the county court, the jurisdiction of the district court is appellate only and, therefore, the issues which are tried de novo in the district court must be confined to issues raised by the pleadings and the evidence in the county court. Holliday v. Smith, 422 S.W.2d 791, 795 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.); Olds v. Traylor, 180 S.W.2d 511, 518 (Tex.Civ.App.—Waco 1944, writ ref’d). As pointed out by the court of civil appeals, the issue in both the county and district courts in this case was whether respondents were estopped from asserting their interest in the East estate. The same ground of estop-pel-acceptance of benefits — was pled in both courts. The pleadings in the district court which were amended to allege that the respondents were estopped because Edgar Turcotte had accepted benefits under the will with knowledge of his rights did not therefore inject a new issue into the proceedings or even enlarge the ground of estoppel raised in the probate court.
Respondents further assert there was no evidence that, at the time Edgar Turcotte accepted benefits under the will, he knew or should have known that the will contest would be filed by others, and that such knowledge is a necessary element of estoppel. Whether or not Edgar Turcotte had knowledge of all the facts and of all his rights at the moment he accepted the benefits is immaterial to a determination that he, by his acts and conduct after acceptance, became estopped to contest the will. Clearly, there is more than a scintilla of evidence to support the finding of the trial court that Edgar Turcotte did take many of the substantial benefits to which he was entitled under the 1960 will, and that he never revoked, or intended to revoke, his acceptance. He qualified under the will as one of the independent executors of the estate of Mrs. East and performed numerous duties as such until his death on March 18, 1963. He never contested the will. To the contrary, as executor, he defended the probate of the will in court. He accepted his share of the 43,000-acre San Pablo Ranch and he partitioned same, together with the cattle and personal property thereon, with his sister, Stella T. Lytton. He made improvements on this ranch and operated it until his death. In all, he accepted and took possession of approximately $1,300,000 worth of benefits under the 1960 will. He was advised by an attorney that his acceptance under the 1960 will would preclude any claim by him for benefits under the 1948 will. He never returned or tendered a return of those properties during his lifetime. Respondents are still in possession of these properties and the income therefrom.
Respondents also assert that they are not estopped because the will contest was initiated by people other than themselves. They urge that since a will contest is a proceeding in rem, the adjudication of property rights in the contest could affect the rights of the Turcottes. It is therefore argued that the personal estoppel against Edgar Turcotte and his privies should be precluded as a matter of law because to bar respondents from participating as contest[687]*687ants lacks mutuality, is prejudicial and is a denial of due process of law. We hold that the filing of a will contest by others cannot be deemed to revive the respondents’ relinquished right to contest the 1960 will. Furthermore, now that all contestants of the 1960 will except the respondents have settled and no longer challenge its validity, the respondents’ contentions in this vein are moot.
We therefore hold that there are pleadings and evidence to support the finding that Edgar Turcotte, with full requisite knowledge, elected to and did take the substantial benefits to which he was entitled under the 1960 will, and that this election was ratified by him until his death. This election and ratification is binding upon respondents in their capacity as heirs, legatees, or personal representatives of Edgar Turcotte, deceased. Wells v. Petree, 39 Tex. 419 (1873); Lancaster v. Burris, 352 S.W.2d 136 (Tex.Civ.App.—San Antonio 1961, no writ hist.); Cunningham v. Townsend, 291 S.W.2d 438 (Tex.Civ.App.—Eastland 1956, writ ref’d n. r. e.). The court of civil appeals did not err in holding that respondents did not have such an interest in these capacities to contest the 1960 will of Mrs. East.
Respondents Patrick Turcotte and Robert Turcotte also claim to be interested persons to contest the 1960 will by virtue of the assignments purchased from Robert C. Putegnat and his sister, Marie Walker, beneficiaries under the 1948 will and heirs at law of Mrs. East. The court of civil appeals reversed the trial court’s finding that the assignments were invalid and rendered judgment holding Patrick and Robert Tur-cotte to be interested persons.
Petitioners do not question the established rule in this State that the heirs, devi-sees and legatees of a decedent may validly assign all or any part of their interests in a decedent’s estate. Morris v. Halbert, 36 Tex. 19 (1871); Geraghty v. Randals, 224 S.W.2d 327 (Tex.Civ.App.—Waco 1949, no writ); 61 Tex.Jur.2d Wills, § 324. Neither do they dispute the rule that assignees of an heir at law have such interest in testator’s will which enables them to contest its validity. Tex.Prob.Code Ann. Sec. 3(r) (1956); Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1928, judgmt adopted). Petitioners do urge, however, that under the facts and circumstances in this case Patrick and Robert Turcotte should not be permitted to use these assignments to gain standing as “persons interested” to contest the 1960 will of Mrs. East.
The record fairly supports the conclusion that the assignments were acquired by Patrick A. Turcotte for the express purpose of acquiring an interest in the East estate which would give him standing to maintain the will contest should it be found that Edgar Turcotte and those claiming through him were estopped. This plan was undertaken after Patrick Turcotte had been advised by several attorneys that the probable estoppel of Edgar Turcotte would present at least a serious question to his intervention in the will contest. Patrick Turcotte commenced a search for an heir at law of Mrs. East or a beneficiary of the 1948 will who was not a beneficiary of the 1960 will. He learned the Putegnat family had been bequeathed $20,000 in the 1948 will and that Robert Putegnat and Marie Walker are each entitled to Várd of their father’s ⅛ th interest in this bequest. Patrick Tur-cotte first offered to furnish an attorney to Robert Putegnat for a five percent share in his interest, but after learning that Puteg-nat already was represented by an attorney, Patrick undertook to purchase an interest in Putegnat’s claim. Putegnat accepted Patrick’s offer of $1,000 for a five percent share in Putegnat’s claim. Putegnat also agreed to try to purchase for Patrick similar interests from other heirs at law for a commission of $100. Accordingly, Putegnat contacted his sister, Marie Walker, and her husband who agreed to assign Patrick a five percent interest in her claim for $1000. About a month later, Putegnat and Marie Walker contacted Patrick Turcotte and each assigned him an additional five percent interest for $1000 each. Putegnat was paid $400 in total commissions by Patrick for these four assignments.
[688]*688Although the assignments were taken in the name of Patrick Turcotte, they were paid for with checks drawn on the Edgar Turcotte Estate Trust Account. It is reasonable to assume that Patrick intended, at one time at least, that these assignments would be owned jointly by the heirs of Edgar Turcotte in that he voluntarily assigned Robert Turcotte a ½2⅛ interest. Since the interests purchased by Patrick Turcotte for over $4000 would be worth only about $220 if the 1948 will is probated, the logical conclusion to be drawn is that these interests were acquired for the purpose of securing standing to maintain a will contest.
We agree with the holding of the court of civil appeals that the assignments to Patrick Turcotte are not null and void by reason of the barratry statute, violations of the Canons of Ethics of the State Bar of Texas, or any illegal conduct on his part. Patrick’s offer to represent Putegnat was not pressed after he learned that Putegnat already had an attorney. Instead, negotiations were had leading to the purchase by Patrick Tur-eotte of the four assignments.
Therefore, the decisive question presented narrows to whether or not Patrick and Robert Turcotte, although personally es-topped from contesting the 1960 will as beneficiaries of their father, may “unestop” themselves by purchasing a ten percent interest in the claims of two remote heirs of Mrs. East, claims which are inconsistent with and would defeat the interest already accepted by the Turcottes through their father. We have been unable to find a Texas case which has squarely considered this point. The court of civil appeals held that the assignees may do so and cited the following authorities in support of this holding: Dickson v. Dickson, 5 S.W.2d 744 (Tex.Com.App.1928, judgmt adopted); Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex.Com.App.1923, judgmt adopted); 23 Am. Jur.2d, Descent and Distribution, § 36 (1965). We do not find any of these authorities as controlling the disposition of this case.
The question before the court in Dickson, supra, was whether the right of a deceased who occupied the position of a “person interested” which would have entitled him to contest the probate of a will passed by the terms of his will or died with him. It was held that the right of action is assignable and is the subject of conveyance, and that a “person interested” means anyone who has an interest in the subject matter of the proceeding. The court did not consider or speak to the question of whether such party could assert such right when it would be inconsistent with a position the party had previously elected to adopt under a will.
In Abrams, supra, the contestants asserted alternate interests in the estate by claiming under the purchaser of the land in controversy at an execution sale and also under a conveyance from the grandson of testatrix. It was held that both of these interests would be affected by the probate of the will and therefore contestants were “persons interested” and entitled to maintain the contest under either claim. The court held that contestants had a right to plead both their titles in the alternative and, if either title proved to be an interest in the estate of testatrix, they were entitled to contest such probate. The court neither considered nor spoke to the question of the effect of an estoppel as a bar to one of the titles.
The final authority cited by the court of civil appeals is a partial quote from 23 Am.Jur.2d, supra, as follows:
“. . . Estoppels, where operating against the ancestor, do not operate against his heirs as to property not inherited from the ancestor, but acquired from an independent source. Hence an heir is not bound by such an estoppel with respect to property taken by purchase, or devise, or inheritance, from one other than the particular ancestor.”
This sentence relies on five cases, none of which are Texas cases. Three, French v. McMillion, 79 W.Va. 639, 91 S.E. 538 (1917); Foote v. Clark, 102 Mo. 394, 14 S.W. 981 (1890), and Russ v. Alpaugh, 118 Mass. 369 (1875), are very similar. In French the [689]*689father of the plaintiff conveyed, by warranty deed, the land he lived on and apparently owned. The land was actually owned by the grandmother of the plaintiff. The plaintiff claimed title alternatively as the heir of the father and as the heir of the grandmother. The court found that the same estoppel or warranty which would have prevented the father from claiming title to the land would also operate to prevent the plaintiff from claiming title as the heir of the father. However, the court went on to find that title was never vested in the father since he predeceased the grandmother, and that upon the grandmother’s death, title passed directly to the plaintiff. The estoppel which prevented him from claiming title through the father was held not to operate to also prevent him from claiming through the grandmother.
Similarly, in Russ and Foote the estoppel which would have prevented the children from claiming title as heirs of one parent who had apparently conveyed away the land did not prevent them from acquiring the land as heirs of the other parent who, at death, actually had title. In Oliver v. Piatt, 3 How. 333, 11 L.Ed. 622 (1844), and McSwain v. Griffin, 218 Miss. 517, 67 So.2d 479 (1953), the heirs stood in the shoes of a decedent whd would have been estopped from claiming title to land, but were held not to also be estopped from acquiring valid title by purchasing the land in question.
We do not believe that the quoted rule controls the situation before us in that none of the cases cited in support thereof involved a will contest. There was no heir before the court in any of those cases who was a successor in interest standing in the shoes of his ancestor to any rights or properties which were inconsistent with, or which would defeat in any manner, the property right which the heir was then claiming.
The New York case of De Witt v. Jayne, 222 App.Div. 674, 225 N.Y.S. 97 (1927), supports petitioners’ position on this point. It was there held that plaintiff and the other legatees under the will of plaintiff’s sister, having accepted their legacies, were personally estopped from later claiming any interest in the estate of the deceased hostile to the will. Furthermore, plaintiff was held to be estopped for the same reason from asserting the claims assigned to her by the other beneficiaries under the will.
Although we have found no Texas case which considered the question of “unestop-pel” in regards to a will contest, Texas courts have rejected the somewhat analogous arguments that a person may circumvent his estoppel by acquiring a chain of title unrelated to the estoppel. See Adams v. Duncan, 147 Tex. 332, 215 S.W.2d 599 (1948); Doty v. Barnard, 92 Tex. 104, 47 S.W. 712 (1898); Waco Bridge Co. v. City of Waco, 85 Tex. 320, 20 S.W. 137 (1892).
The question before us is not, as in Abrams, whether or not interests may be alternatively asserted as grounds for contesting a will; it is instead whether or not a party who is estopped by equity from contesting by way of one interest may avoid that estoppel by acquiring another interest which is not estopped. No court has so held. To so hold would make a mockery of the equitable rule of election in will contests. The rule of election and estoppel in will contests is based upon equity and public policy. It is designed to prevent one from embracing a beneficial interest devised to him under a will, and then later asserting a challenge of the will inconsistent with the acceptance of benefits.
Here respondents Patrick and Robert Turcotte are seeking to assert the relatively minute interests assigned to them in order to contest the 1960 will which their father ratified by his election. Yet their admitted purpose in invalidating such will is to recover through their father since respondents are neither beneficiaries under the 1948 will nor heirs at law.3 In the meantime respondents have enjoyed, and continue to enjoy, the fruits of their fa[690]*690ther’s election in that they remain in possession of the property taken by Edgar Tur-cotte under the 1960 will, and have earned almost one million dollars from same. They admit that over $150,000 from the estate bank account has been spent on this contest of the 1960 will. True, respondents have pleaded that they are willing to tender back the property received by them should the 1960 will be invalidated. However, even assuming that a valid tender could be made after these many years of unqualified possession, the election to take or not to take is not the respondents’ to make; it was made long ago by Edgar Turcotte. Respondents cannot now repudiate that election.
The Putegnat heirs, including Robert Pu-tegnat and Marie Walker, as well as all other contestants, have now settled their claims and no longer desire to contest the 1960 will. Putegnat and Marie Walker have offered to pay Patrick and Robert Turcotte ten percent of the interest to be received by Putegnat and Marie Walker.
We conclude that it would be inequitable and unjust to allow Patrick and Robert Turcotte to assert standing as interested parties by virtue of the minute interests acquired through the assignments purchased for the purpose of defeating the will under which their father elected to take. Furthermore, to permit standing under such circumstances is against public policy in that it would breed litigation and deprive the real parties at interest of their right to compromise and settle their controversies.
Therefore, the court of civil appeals erred in holding that Patrick and Robert Turcotte are persons interested in the Sarita K. East estate and, as such, entitled to contest the 1960 will. The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.
POPE, J., dissents in an opinion in which CHADICK, J., joins.