dissenting. I cannot agree that from this record it can reasonably be taken that the trial court found the facts under the allegations of an election or waiver against the petitioner. I fully approve the rule laid down in the opinion •of the majority to the effect that every reasonable presumption is in favor of the judgment. But this rule only applies when the record makes it reasonable to apply it. If the record shows that an essential fact is left unfound, this rule cannot be invoked to supply it. And if this record shows that the court below did not find the facts referred to, or attempt to do so, the inference drawn by the majority is wholly unwarranted. That this record does show this seems.to me too plain to admit •of argument.
*214It must be remembered that tbe case was tried from beginning to end upon the assumption that a trial by jury was a matter of right. This is abundantly shown by the record. This view was taken by all concerned, — both court and counsel.
It is true that the court made use of the expressions quoted in the majority opinion. And if these stood alone, it might be our duty in support of the judgment to hold that they were to be taken as equivalent to an adjudication that the evidence was insufficient to establish an election, pure and simple, or a waiver, which have, I may say, many essential characteristics in common.
But these' statements do not stand alone. The attitude of the court toward the election is abundantly and unmistakably shown in various other parts of the record.
In the first place, the special verdicts themselves show that the position of the court was, not that the evidence was insufficient to establish an election or waiver, but that that question was immaterial and inapplicable. Else why did the court refuse the petitioner’s written request to submit that question to the jury, and allow the petitioner an exception to that ruling as shown on p. 595 of the transcript? The case was being tried as an ordinary jury case, — there not being a suggestion to the contrary from cover to cover of the transcript, — yet, without an intimation of any kind that the court was going to handle that question for itself, the request to submit the question of election or waiver was refused.
Again, it unmistakably appears that counsel for the executors understood the court’s position to be that an election or waiver without prejudice to others was inapplicable to this case. They put themselves squarely upon the former decision of this case, and insisted that that question was then decided. So consistent and confident were they in their position that they again •and again asserted that if there was my evidence tending to establish the petitioner’s claim, he was entitled to have a verdict directed in his favor. This appears at least on three different occasions in the transcript, pp. 474, 531, 532. What was the "claim” to which this referred? That it embraced the proposition that an election, intelligently made, is irrevocable, though no one is misled to his injury, is too plain to be denied. That there was evidence tending to show this, all the judges, save one, agree.
*215But the must conclusive evidence against the view taken by the majority comes from the lips of the court itself. It is always unsafe and unfair to select specific statements without showing all that was said. It is so when considering a charge of a court; it is so when putting in evidence an admission of a party or witness. It must all be taken together, and its true significance and meaning be determined by considering the whole statement. In the very statement quoted from by the majority the court below makes plain the true meaning of the expressions quoted. The presiding judge went on to say: “As we regard it, the -only question that was left open by the Supreme Court in the disposition of the matter there, was the question whether Mr. Peck’s conduct was such, between the time when the will was filed for probate, and the time when he finally gave notice of his waiver on the 12th of December, that it would be unjust and inequitable for him or his representatives to assert that waiver. In other words, as we regard it, it presents merely the question of whether there was a course of conduct on his part which would constitute an estoppel in pais. The evidence, we think, falls short of establishing such an estoppel in that there is no evidence, as we view it, which tends to show that the petitioner, or any of the other legatees were prejudiced by anything which Mr. Peck did'during the time when he Was considering whether he would waive or not. That is, allowing that the evidence stands as claimed by the petitionee, that he had not elected, or on the other hand, if it is as claimed by the petitioner, that he had taken possession, — done acts which would tend to show an intention to elect. We think, in other words, that the doctrine of election, pure and simple, does not apply, but it is more properly the doctrine of estoppel, equitable estoppel; and that something more than the mere reaching the conclusion that he would take under the will, before he filed his waiver, has to be considered.”
Now we know why the court declined to submit to the jury the petitioner’s written question above referred to — the question of election or waiver, as distinguished from estoppel in pais. It was because the question of estoppel in pais was the “only question that was left open by the Supreme Court;” so that, as' the trial court regarded it, the only question presented was whether there was such a course of conduct on the part of Mr. Peck as would amorint to an equitable estoppel. And the only *216particular in which the evidence fell short was that no one was prejudiced.
Can anything be plainer than that the court did not find any facts regarding an election, pure and simple ? Is it not perfectly apparent that the court simply laid that question out of the case, as immaterial and inapplicable?
The majority says that it is not conceivable that the court below would leave one of the principal issues under the pleadings and the evidence undisposed of and yet render final judgment. But it appears as clear as sunlight that that is just what the court did do; and did it because that issue was immaterial and inapplicable. There was but one ground, in the view of the trial court, which was, in law — not in fact — available to the petitioner, and that was the ground of estoppel. The only reason why an election would not answer the petitioner’s purposes was because the law required a full estoppel in order to bar Mr. Peck from the benefits of his statutory waiver.
If further evidence is needed, the record furnishes it.
For the sake of a clear understanding, I quote the question already referred to, which the petitioner asked to have submitted to the jury; it is found on p. 595 of the transcript:
“Did Edward W. Peck, previous to September 22, 1904, •with full knowledge of the title, value and all other facts concerning the property of which his wife, Harriet C. Peek, died, seized, and with full knowledge of his statutory rights of election, under the provisions of the will of his said wife, elect to-accept and did he accept the life estate provided for him by the provisions of her said will?”
In further confirmation of my statement that counsel for the executors understood the position of the court to be what I have herein made it, I quote what they said about this request when it was presented to the court: “That would be an immaterial inquiry; that would be just such an inquiry in an ordinary case of a motion for judgment notwithstanding the verdict, because the court has ruled, whichever way that would be answered, it would be immaterial unless the fact was made ou,t that this election and what had been done under it was prejudicial.”
In speaking of this request of the petitioner, the court said:
“In view of the disposition which was indicated last night, we think that the requests made by the petitionees, the execu*217tors, should be granted, and the request of the petitioner, marked ‘Z’ (quoted above) and the requests just now presented numbered 1 to 12, inclusive, should be denied. ’ ’ Transcript, p. 597. Counsel for the petitioner then asked, “That is done upon the ground or because of the previous ruling in the case and on the ground that there is no evidence tending to show any of those things?” To which question the court made reply: “The ruling is not to the effect that there is no evidence tending to establish one or more of these requests, but upon the ground that the questions covered by the petitionees’ requests are held to be determinative of the issue.” Transcript, p. 597. This, it should be remembered was after the statements quoted by the majority. And in the very teeth of this statement, the majority infer that the facts involved in the petitioner’s question were found by the court against him. Are we to take the court’s own word, or are we to assume that it did not know the basis of its own ruling?
That the court was fully conscious of the situation is abundantly shown on pages 598 and 599 of the transcript, where counsel for the petitioner Said: “We desire an exception to the holding of the court that an election doesn’t apply in a case of this kind, — that is, if it is necessary to protect our rights. We certainly depend upon this election and we say that if there was an election, as claimed by the appellants, that that of itself would work an estoppel; so that we desire an exception to what the court has said and the holding of the court upon the matter of the election.”
Now, if the court, as assumed by the majority, found the facts on the election against the petitioner, why did it not say to counsel, when the foregoing exception was taken, “You misunderstand us; we do not hold that the doctrine of election is inapplicable, but we hold that you have failed in the proof, and we find the facts against you?”
Nor is this, even, all the evidence afforded by the record to negative the inference drawn by the majority. After all this had taken place, and it is recorded here in chronological order, the jury were returned to the court room, and the court thus addressed them:
“Gentlemen of the jury: The case has been before the court in your absence on motion for directing verdicts. The petitionees,- — that is, the executors, concede in their motion, as *218well as in argument thereof, that there is no controversy in the testimony; in other words, that all the facts relied upon by the petitioner, Mr. Clark, are made out. so far as there is any evidence in the case to support them. There is, then, no controverted question of fact to go to the jury, and it only remains for us to instruct you as to the tendency of the evidence or want of evidence to make out any material fact.
There is no dispute but that Mr. Peck in his lifetime, and within the time fixed by law, gave the probate court sufficient notice that he elected to waive the provisions of his wife’s will and take his distributive share under the statute. This being so, the petitionees are entitled to have the decree of the probate court, distributing the estate in accordance with the request filed with the waiver, affirmed, unless the petitioner makes out that Mr. Peck’s conduct concerning the estate and his rights under the will were such as to estop him or his representatives from asserting such waiver. The petitioner contends that Mr. Peck, as evidenced by his conduct and declarations, prior to the filing of his waiver, elected to take under the will, and that he and his representatives are thereby precluded from asserting such waiver.
As we regard the law, the ease presents 'the question whether Mr. Peck’s conduct in that regard was such as would constitute an equitable estoppel. One of the essential elements of such an estoppel is that the rights of another, who has acted in reliance upon -the conduct complained of, would be prejudiced if Mr. Peck or his representatives are permitted to claim 'the benefits of the waiver!
The petitioner has failed to produce evidence tending to show that he or any of the beneficiaries under Mrs. Peck’s will has been or will be prejudiced by the conduct of Mr. Peck prior to the time he filed his notice of the waiver of the provisions of his wife’s will.
This being so, the petitioner hás failed to malee out an estoppel under the law and the petitionees are entitled to the benefits of the waiver.” Transcript, pp. '601, 602.
With these words ringing in my ears, I simply cannot be convinced that an inference can reasonably be drawn from this record that the court below weighed the evidence and decided that it was insufficient to establish an election, pure and simple.
*219After lie had persisted through two courts, the probate court and the county court, that he was entitled to prevail without showing that any one was misled to his prejudice, if he made out a deliberate and intelligent election, and having failed because the court regarded his claim unsound in law, the petitioner is turned out of this Court with the issue yet undetermined, on an inference that the court below was doing one thing, when that court was repeatedly saying that it was doing something else.
All this, without more, would not put the trial court in error. And this, for two reasons: First, it would not amount to reversible error to withhold or ignore a material issue, if in fact, there was no evidence tending to sustain it. Second,, it would not amount to reversible error to withhold or ignore an issue, even though it was supported by evidence, unless that issue was a material one; that is to say, taking this very ease, unless the distinction between election and estoppel, insisted upon by the petitioner, exists.
We are all, save one, agreed that there was evidence fairly and reasonably tending to show such an election as the petitioner claimed.
And a majority of the court, at least, agree that the distinction drawn by the petitioner between an election and an estoppel exists in the law, and that his position in that behalf was legally sound, and that there is nothing in our former decision, rightly understood to the contrary. This being so, the soundness of the conclusion of the majority depends wholly upon the soundness of the inference drawn.
In the face of what appears in this record, I submit that such an inference cannot by any possibility be “reasonable” nor can the majority’s construction of the bill of exceptions be “fair and just.”
The judgment might To be reversed.
Munson, J., concurs in this dissent.