As the property sued for belonged to the testator of the plaintiff, he is entitled to recover, unless the defendant can show some defense, legal or equitable.
She says that the property was regularly assigned to her as widow of the testator, for her year's provision. She admits that she did not dissent from her husband's will within six months (49) after the probate thereof, which is the time limited by the statute for her dissent. But that she ought, nevertheless, to be entitled to a year's provision as fully as if she had dissented within the established time, for three reasons:
1. That being ignorant of the law, she was induced by the plaintiff to believe that she would be entitled to her year's provision without dissenting from the will; that plaintiff fraudulently induced this belief; and for that reason alone, she omitted to dissent in due time, having always claimed her year's provision.
2. That her husband, by his will, gave her nothing, and that by reason thereof she was put to no election whether to take under his will or against his will; and that in such case she was not required to dissent in order to entitle herself to a year's provision.
3. That the proceedings, by which her year's provision was assigned, could not be collaterally avoided in this action, and were valid until avoided by some direct proceeding for that purpose.
On the first point the judge instructed the jury that "if the plaintiff, through fraud and deception, induced the defendant not to dissent from said will, in the time required by law, then the proceedings (assigning the year's provision) would be binding upon him, and he would not be entitled to recover," etc. Under this instruction the jury found for the defendant.
It is not denied that there was evidence to go to the jury on the question submitted by the judge. The only question presented to us is on this instruction. If it was right in law, the defendant is entitled to judgment in her favor; if wrong, the plaintiff is entitled to a new trial.
We think the judge was right. No person can, in equity and good conscience, retain an advantage procured through his own fraud, or that of another acting for him. The executor was a trustee of the property of the deceased, for his creditors and legatees, and (50) they cannot (if they would, and it does not appear that they wish to) acquire any advantage from this fraud. It is true, that the executor of a testator does not stand towards the widow in any of the *Page 52 well-known relations of trust and confidence, such as attorney and client, guardian and ward, etc. As she took nothing by the will, he was not a trustee for her, and her interests and those which he represented were adverse. He was not bound to give her any advice as to her action at all. But it was natural, that being brought into relations with him, as representing her deceased husband's estate, she should consult him respecting what she should do to obtain her rights in it. When he accepted her confidence, undertook to advise and act for her in respect to such rights, he consented to assume a position of trust and confidence, and a court of equity will protect her against any abuse of it. If, under these circumstances, he gave her any advice, he was bound not only it should be honest, in the sense that it was not knowingly and willfully false; but also, that it should be correct and true, as far as by any reasonable efforts on his part he could ascertain the truth. Measuring the plaintiff's duty by this standard, which is not higher than that which is ordinarily acted on in the semi-confidential relations of life, it is evident that the plaintiff fell far short of it. The defendant confided in him to advise her as to her right to a year's provision, and the necessity for her dissent. He accepted her confidence, and misadvised her to her injury, and in the interest of those whom he represents.
It is not material, if he was himself ignorant of the law, and did not knowingly and willfully mislead her. Having undertaken to advise her, he was bound to inform himself as to the law, on a matter where it was so familiar, and where correct knowledge was so easily accessible. He should either at once have put her at arm's length by refusing all advice, or should have advised her to consult an attorney, or (51) have consulted one himself before the undertook to advise her. He cannot now take advantage of his error, or his fraud, to defeat the assignment of her year's provision.
PER CURIAM. No error.