I dissent in this case, and for reasons which follow.
By the will she got, at least, an estate for years, in what is called the homestead place. This homestead place was worth much more than she could claim under the law. But this to my mind is a subsidiary question. The real question is, whether or not she elected to take under the will. If she did elect to take under the will then this action fails. My views on the question here involved, may be concisely stated. One who accepts the terms of a will and receives benefit under it, is estopped thereafter from denying or renouncing the will. This is horn-book law, or should be so considered. The rule, under existing laws, should apply to the widow, as well as any other beneficiary under a will. And further, whilst the widow has a given time in which to make her election, it should not be said that after she had in fact made such election (by acts or deed) that she can later disown that election, solely on the theory that she is not bound by any previous election, but can at the last day of the statutory period make a new election, and thereby over-throw what she had by her own acts, previously done. It is not really the doctrine of estoppel. It cuts *Page 682 deeper than that, and turns upon the question as to whether or not she has, in fact, elected to take under the will. An election, once made, should stand, irrespective of the time it is made. Of course it could not be made until after the death of the testator, because there could be no election prior to such time.
It is true our cases have used some broad language as to the rights of a widow to elect. She is, or was, given twelve months in which to elect to take under the law, or under the will, but when she has elected, the matter is concluded. She can conclude this matter of election on the first day of her twelve months as well as on the last day, or any other day thereof. At this time she is sui juris, and entitled to no exemptions under the law. Her acts are just as binding upon her as the acts of any otherfeme sole, or of a man. She can estop herself both by contract and acts, just as any other citizen. She is presumed to know the law just as any other citizen is presumed to know. Her election is not changed, because of her alleged ignorance of the law. In the cases urged by respondent, it will be found that other matters determined the case. Thus in Egger v. Egger, 225 Mo. 116, there was a contract, and we ruled that the contract was without consideration. So, too, in Spratt v. Lawson, 176 Mo. 175, the wife at the writing of the will had endorsed thereon her acceptance thereof, and this becomes a matter of contract without consideration. Other cases cited are not more applicable. The case of Mosely v. Bogy, 272 Mo. 319, rules the instant case and cannot be distinguished. If that opinion is right the present is wrong. In that case we were dealing with a widower, in this with a widow — both equal under present laws.
I admit that there are broad expressions in some of our opinions to the effect that the widow has the full twelve months, and that although for eleven months, and twenty-nine days, she fully accepts the will, she can upon the last day, make another election and take under the law. In my judgment these loose expressions are wrong, and should be eliminated from the books. She can elect *Page 683 by acts as well as by deed, and should be bound as any other devisee in a will. And such election can be at the first of the statutory period as well as at the last. When so shown she is bound by the election, not by estoppel in pais but by the fact of an election. Whether she lost or won by the election is immaterial. The single question is, did she elect to take under the will, and not whether her acts which constituted the election resulted in injury to others. I dissent for these reasons, somewhat hurriedly expressed. Elder, J., concurs in these views.