ON PETITION FOR REHEARING In their petition for rehearing the appellants insist that the appellee Lambert elected to and did receive and retain a benefit under the will with full knowledge of the mental condition of the testatrix at *Page 371 the time the will was executed, and he is therefore estopped to contest the will regardless of all else. They rely largely upon the case of Hight v. Carr (1916), 185 Ind. 39, 112 N.E. 881, and also cite other cases in which it has been said that one who accepts and retains a legacy under a will may be estopped to contest the validity of it, Lee et al. v. Templeton, Guardian (1881), 73 Ind. 315, Floyd et al. v. Floyd et al. (1883),90 Ind. 130, if those facts are pleaded in defense of such an action brought alone by those having accepted and retained the legacy,Long, Exr. v. Neal (1921), 191 Ind. 118, 132 N.E. 252.
It must be remembered that we are dealing with a demurrer to the answers filed by appellants and that "where an estoppel is relied upon, it must be pleaded with particularity and 9. precision, and nothing can be supplied by intendment, and, when there is ground for inference or intendment, it will be against, and not in favor of the estoppel." Dudley et al. v.Pigg (1898), 149 Ind. 363, 371, 48 N.E. 642.
In Hight v. Carr, supra, at p. 45 the court quotes Bigelow on Estopped as follows: "`A party cannot occupy inconsistent positions; and where one has an election between 10, 11 several inconsistent courses of action, he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the facts, determines his election and works an estoppel.'" And the court further says: "Appellant was charged with knowledge of his legal rights and if, with actual knowledge of all material facts and circumstances surrounding the execution of the will and his subsequent action, he elected then to accept, as such, compensation for the legacy given him by such will, he is now estopped to deny the *Page 372 validity of that instrument without first restoring the benefit received, unless his election has been induced by fraud, in which case he may rescind such election by restoring the benefits received." In that case, however, the pleading under consideration alleged the acceptance and retention of the benefit. The appellants, in the argument portion of their brief on petition for rehearing, say that the appellee Lambert "retains the benefit, keeps the property, never rescinds his action, . . .," and if that language were included in the answers a different question might be presented, but we find no such allegations, nor any equivalent thereto, in their answers. The answers do allege that the appellant Morgan disposed of the property received by him before the commencement of this action, but are silent as to the disposition or retention of that received by Lambert.
The petition for rehearing is overruled.
NOTE — Reported in 51 N.E.2d 897.