The opinion of the Court was delivered by
Willard, A. J.The verdict below having been rendered by direction of the Court, if it shall appear that the right of the defendants to such verdict did not depend, wholly, on the decision of a question of law, but involved the determination of some matter of fact, upon disputed evidence, or upon some conclusion of fact to be drawn, or, if it appears that some proposition of law, material to the question, has been erroneously solved, then there must be a new trial.
John D. Brown, in his life time, held the land in question, under a deed from Sarah Benson and others, by which he took an estate in fee, in trust, for the use of himself for life, and after his death, “the said property to be equally divided between his wife and children then living, the child of a deceased child to take his parent’s share.” He took, also, by the same deed, power to sell, at discretion, for the use of his wife and children, but as this power was not exercised during his life time, it has no important bearing on the present question.
John D. Brown, by his will, assumed to dispose of this property, as if held discharged from all trusts whatever, and, placing it with his real and personal estate, devised and bequeathed the whole to his wife and children, with the exception of a bequest to a grandchild. The devises of the real estate were all specific, except the residuary devise, each child taking a designated portion of the realty, and Sarah, his widbw, in addition to a specific devise, the undevised residue of the realty. Under these devises, the land in suit went in equal moieties to his son John H. and his daughter Sarah P., for life, w7ith remainders to their children, surviving their parents, and cross remainders, in the event of either dying without issue living. *366The other devisees, including Mary A., the wife of Wm. E. Harvey, took other portions of his real estate, about which there is no dispute.
It is evident that a failure of the devise to John H. and Sarah P., in consequence of want of power to devise, must, as affecting their children, the present plaintiffs, defeat the scheme of equal division intended by the will.
There is evidence tending to show that all of the devisees accepted the provisions made by the will, and, prior to the filing of the Harvey bill, were severally in the enjoyment of the property-devised. How far such acceptance and occupation may have been decisive upon the question of an election to take, according to the provisions of the will, complete and binding previous to the filing of the Harvey bill, depends upon a state of facts not yet ascertained, for the reason that the direction given to the case, by the ruling of the Circuit Court, precluded an inquiry into these facts as bearing on the question of an election antecedent to the filing of the Harvey bill.
Two questions arise at this stage of the inquiry — had the children of Sarah P. any rights at the time of the filing of the Harvey bill, and if so, were these rights cut off by the proceedings and decree under that bill.
If they had any rights, they were derived under the will, and consisted in the right of issue living at the death of Sarah P. to take, on that event, a fee by way of remainder.
It is not necessary, now, to adjudicate, finally, the question of the possession of such rights, for, as far as the present verdict is concerned, unless we can, as matter of law, negate their existence, the verdict must be set aside, and the question of right determined upon a new trial.
It may, however, be observed that there are two grounds on which it may be contended that such rights rest: first, that J. D. Brown held, though as trustee, the fee of the land; and, second, that the parties entitled as beneficiaries, under the trusts, had accepted the provisions of the will, and thereby lost the right to subject the legal estate to the uses and trusts originally impressed upon it. As the present plaintiffs were not parties to the Harvey bill, they cannot be affected by it, as regards any right they may have had at the filing of that bill.
The claim of the defendants, in respect to the operation and effect of the decree in that case is, that it operated as an election to take *367under tlie Benson deed, by which all persons are bound, whether parties or otherwise.
If that decree could have such operation and effect there would still be an insuperable objection to allowing to the defendants the benefit of that effect as mere matter of law, for the question would still remain, whether at the filing of that bill the parties to it were in a position to make such an election, and the determination of this question would involve a question of fact, whether they had already made an opposite election and become bound by it.
The most serious objection to the ruling has relation to the conclusion, that the decree and jnoceedings under the Harvey bill were in themselves an election to take under the Benson deed as against the will. This conclusion cannot be sustained. The frame of the bill, the character of the parties, and the terms of the decree and consent on which it was founded, do not conform to what is essential to constitute either a formal or substantial act of election under the Benson deed, but, on the contrary, exhibit a clear intent to perpetuate the provisions made by the will, so far as the rights of objecting parties would permit.
The bill seeks nothing further than compensation to Harvey and ■wife, for an alleged inequality in the dispositions under the will as compared with the rights intended to be conferred by the Benson deed. It alleges that the complainants were “ unwilling to disturb the family arrangements contemplated by the said John jl). Brown, further than is necessary to secure their just' rights; and in order to promote peace and harmony in the family they had filed this bill, in order, in an amicable manner, to adjust the rights of the complainants in relation to those members of the family of the said John D. Brown with whom they might come in conflict.” They ask that the house and lot in Assembly street may be sold, and the proceeds of sale invested in accordance with the will of J. D. Brown, and that they may have “such portion of the settled estate allotted to them, by sale or otherwise, as may equalize them with the other children of the said John D. Brown, and be a fair equivalent for the property secured by the said trust deed, which they thus agree to give up.”
Considering the bill in connection with the fact that the only parties defendant to it were the widow of J. D. Brown, and Sarah P. and her husband, and with the additional fact that the decree was based upon a consent of such defendants, it is clear that the proceeding is to be regarded as an application to the Court to sanction, by *368its decree, a compromise made between these parties, by which Harvey and wife were to receive a pecuniary compensation, in lieu of the interest intended under the Benson deed, the provisions of the will to stand in all other respects.
Certain facts bear strongly on this conclusion. The bill sets up the existence of a claim based on the will. The house and lot in Assembly street, as appears by the bill, was held by J. D. Brown on like trusts as those affecting the land in suit, yet the decree assures to Plarvey and wife this house and lot, as their individual property, in the precise manner in which, according to the will, they were to hold it. They could not hold it under any other title as their several estate; not under the original deed of trust to Brown, because all the children of Brown were entitled under that trust; nor under the decree considered as a proceeding based upon such trust, for all the children of Brown are not parties to the bill. The very clause of the decree that attempts to secure the house and lot in Assembly street to Harvey and wife, assumes in terms to confirm in them as well “ all interest secured to them by the will of John D. Brown.”
The presumption is that the value of the life estate of Sarah P. wras the inducement to pay to Mrs. Harvey the amount agreed to be paid to the latter, by way of equalization, and the payment of that sum, in order to a compromise of the claim of Harvey and wife, and to prevent the disturbance of the arrangements of the will, cannot prejudice the rights of the other parties entitled to claim under the will, who, on like grounds, must be presumed to have received only their fair and equal proportion of the estate.
The foregoing view disposes of all the questions material to the present aspect of the case. The conclusion of the Circuit Court, that the decree and proceedings in the Harvey case amounted toan election under the Benson deed, binding on all parties deriving their claims under the will, cannot be sustained; there should, therefore, be a new trial.
Moses, C. J., and Wright, A. J., concurred.