delivered the opinion of the Court:
The principal question arising upon this record is, whether appellants, as heirs-at-law of Maria A. Carper, nee Growl, are barred of their right to the 180-acre tract of land conveyed by Mary Ann Growl to her daughter, said Maria A. Carper, February 12, 1875, and derived by the grantor by descent from her mother.
It is insisted that Mary Ann Growl, widow of the testator, Joseph Growl, having failed to renounce the benefit of devises to her, in his will, within one year from the probate thereof, in accordance with sections 10 and 11, chapter 41, of the statute entitled “Dower,” she is to be presumed to have elected to take under the will. By section 10 it is provided that a devise of land, or any estate therein, to the widow, shall, unless otherwise expressed in the will, bar her dower in the lands of the husband and her share of the personal estate, but giving her a right of election whether to take under the will or under the statute. The succeeding section provides that unless she files a written renunciation within a year from the probate of the will she shall be held to have taken the devise in lieu of dower. It is manifest that the effect of her failure to elect under the statute bars only her dower and distributive share of her husband’s estate, as widow, and nothing more. There being no attempt here to assert dower, or a right to a distributive share of the personalty, the statute can have no application. Carder v. Comrs. of Fayette County, 16 Ohio St. 366.
The bill, and decree of the circuit court, by which the 180 acres of land belonging to Mrs. Growl is held to have passed under the will of Joseph Growl, are based upon the doctrine of election, as administered by courts of equity, and it is upon this doctrine that appellees rely for maintaining the decree. The doctrine of election, as sought to be applied, is not a creation of the common law, but was imported into equity from the civil law, and has since become a familiar part of that branch of our jurisprudence, and its principles and their application are well settled and defined. In the earlier cases it found application usually to devises of land where right of dower was also asserted therein, (Dillon v. Parker, 1 Swanst. 359, note b,) but has, in modern practice, been extended to cases arising under all kinds of instruments of donation. (2 Story’s Eq. Jur. sec. 1080; 1 Pomeroy’s Eq. Jur. sec. 470.) This equitable doctrine originated from repugnant positions in respect of inconsistent or alternative gifts, where there was an intention, either express or implied, that one, and not both, should be taken. (1 Swanst. supra.) And as at common law the party could not be compelled to make election, and thus render definite and certain whether the donee took the one or the other, or under which he claimed title, courts of equity, for the attainment of justice, and to carry into effect the purpose and intention of the donor, assumed jurisdiction to declare that the donee, not being entitled to retain both, shall elect which he will take, (Crosby v. Murry, 1 Ves. Jr. 557,) and hence, that where the donee had made an election to accept one of the inconsistent or alternative gifts, to estop him from asserting title to the other. 1 Pomeroy’s Eq. Jur. sec. 461; 2 Jarman on Wills, 2; 2 Story’s Eq. Jur. 1075, et seq.; Bigelow on Estoppel, 578.
He who accepts the bounty of another must do so upon the terms and conditions, express or implied, the donor may impose. The beneficiary can not insist that the provisions in his favor be executed and those to his prejudice disregarded, or, as ordinarily expressed, he can not take under a will and also contrary to its provisions, 2 Jarman on Wills, 1-20; 2 Story’s Eq. Jur. 1075-1093; Brown v. Pitney, 39 Ill. 468; Woolley v. Schrader, 116 id. 29; Ditch v. Sennott, 117 id. 362; Wilbanks v. Wilbanks, 18 id. 17. If, therefore, property of a third person is devised, and in the same will a benefit is given to such third person, which is accepted, with knowledge of all the facts and of the rights of the donee accepting, the acceptance is regarded as a confirmation of the dispositions made by the will. So if a testator intending to dispose of his property, includes in the disposition, property of another person, and at' the same time gives to such other person an interest in the estate of the testator, such person will not be permitted to defeat the disposition made by the will and at the same time take under it. He is put to his election whether he will retain his own property or take the benefit conferred by the will. See cases supra.; Wilson v. Townsend, 2 Ves. Jr. 696; Wilson v. Mount, 3 Ves. 191; Woolen v. Tanner, 5 id. 218; Noyes v. Mordant, 2 Vern. 581; Broome v. Monk, 10 Ves. 609; Thelluson v. Woodford, 13 id. 224; Dillon v. Parker, supra, and note. For, if the donee be permitted to accept the benefit and at the same time decline the burden, it is to defraud and defeat the intent and design of the donor. 2 Story’s Eq. Jur. 1077; Roper on Legacies, *1567.
It will be found that some of the cases proceed upon the theory, that as the donee can not take under and against the will, if he elect to take against the will he forfeits the whole devise for his benefit; on the contrary, if he accepts the provision made for him by the will he forfeits his estate devised. Some of the cases draw the distinction between where there is an express condition in the instrument of donation, and where the inconsistency arises by implication; but it may now be said, that by the more modern English and American cases, following the rule laid down in the earlier case of Webster v. Mitford, 2 Eq. Cas. Abr. 363, the more equitable doctrine of compensation to the disappointed devisee is established. 2 Jarman on Wills, 7, 8; 2 Story’s Eq. Jur. 1085, and note.
In one of the early eases (Lady of Cavan v. Pultney, 2 Ves. Jr. 544,) it was said: “An express condition must be performed as framed, and if it is not, that will induce a forfeiture ; but the equity of this” court (i. e., to compel election,) is to sequester the devised interest quousque, till satisfaction is made to the disappointed devisee.” And the rule seems now established, that when the testator has made disposition of property not his own, and has given a benefit to.the person to whom it belongs, the devisee or legatee accepting the benefit so given to him must make good the testator’s attempted disposition. If, on the contrary, he chooses to enforce his proprietary right as against the testator’s disposition, equity will sequester the benefit intended for the refractory donee, In order to secure compensation to those whom his election disappoints, and, after making such compensation, restore the surplus, if any, to the donee. (2 Jarman on Wills, 2, 3; 2 Story’s Eq. Jur. 1083, 1084; 2 Redfield on Wills, 357; 6 Am. and Eng. Ency. of Law, 255, note 3 ; Wilbanks v. Wilbanks, supra.) It would follow, as a necessary sequence from this doctrine, that there could be no compensation awarded where no fund or interest would pass, under the will, to the donee compelled to elect, which could be sequestered to compensate the beneficiaries who are disappointed by the election. As said by Lord Loughborough in Bristow v. Warde, 2 Ves. 336 : “The doctrine of election never can be applied but where, if an election is made contrary to the will, the interest that would pass by the will can be laid hold of to compensate for what is taken away.” It is stated in Pomeroy’s Eq. Jur., (sec. 469,) that inasmuch as the doctrine of election depends upon the principle of compensation, “it follows, as a necessary consequence, that it will not be applicable in any case unless there is a fund given to the donee who is compelled to elect, from which compensation can be made to the disappointed parties, or which, perhaps, can be transferred as a whole to such parties.” See cases in note 1.
It would therefore seem indispensable to the application of the doctrine of election, that there be, first, a plurality of gifts, or two inconsistent or alternative rights or claims in property devised, the choice of one by the devisee being intended to exclude him from the benefit of the other; and second, in case the property of the devisee is disposed of by the will, and he chooses to assert his right to such property against the will, that there be a fund for his benefit, given by the will, which can be laid hold of to compensate the parties whose right to take under the will is defeated, by the election. The application of these principles will relieve the present case of difficulty.
Joseph Growl died seized of 76 6J acres of land. Of this, 256J acres, and 180 acres owned by his wife in her own right, constituted the family homestead. By specific devises to his children the testator disposed of all his lands except the 25 6g-p,cres designated as being part of his homestead. This 256¿-acres, together with the 180 acres owned by his wife, is by the eighth clause of his will devised to his wife for life, or during her widowhood. There is, by the will, no devise over of the 436J- acres thus devised to the wife for life, nor is there any residuary clause in the will under which the title might pass. It is apparent, therefore, that there was no attempt by the testator to dispose of the fee of the 180 acres belonging to his wife. Whatever interest appellees acquired in the 2561-acres belonging to Joseph Growl, necessarily came to them by descent, and not by virtue of any provision of the will. They took, therefore, as heirs-at-law, and not as devisees, in respect of all of said lands included within the homestead. There being no devise over of the fee in the wife’s land, it is manifest that the assertion of title by appellants is not inconsistent with any right of appellees under the will. They are not disappointed of any legacy or devise given them by the will, by such assertion of title, and therefore no right to compensation exists in their favor. But if this were not so, and it should be held that the charge created by the ninth clause of the will in favor of the daughter of the testator upon the “homestead” gave appellees a standing in a court of equity, it will be found, upon further consideration, that the doctrine of election had no application.
It is apparent from this record, that under the will the widow was not a beneficiary of any fund out of which compensation could be made. By the will the support of the daughter, Maria A. Growl, and a legacy of $3000 for her benefit, were made a charge upon the “homestead” devised to the wife for life. By law, the widow was entitled to dower in the whole of the 766J acres of land of which her husband died seized. It is shown, as we think, that the land of the husband devised to her for life, was not an average one-third of the land owned by the testator, so that it is clear that by the devise of the land she took nothing in excess of her dower. Again, it seems clear, from the evidence, that excluding the widow’s award, as must be done, she received under the will less than one-third of the personal estate after the payment of debts, which amount she would have been entitled to under the statute. (Gross’ Stat. 1869, chap. 34.) The provision made by the will was therefore in lieu of, and not in excess of, her rights in her husband’s estate as widow,' and she took the same, not as a beneficiary under the will, but as a purchaser. In Blatchford v. Newberry, 99 Ill. 62, we said: “A provision by will in lieu of dower is, in fact and legal effect, a mere, offer by the testator to purchase out the dower interest for the benefit of his estate.” In Isenhart v. Brown, 1 Edw. Ch. 413, the court, in speaking of a devise in lieu of dower, said : “It is the price put by the testator himself upon the right, and which she is at liberty to accept. Her relinquishment of dower forms a valuable consideration for the testamentary gifts. In this point of view she becomes a purchaser of the property left to her by the will. So, on the other hand, the husband offers a price for his wife’s legal right of dower which he proposes to extinguish, and if she agrees to the terms, she relinquishes it and is entitled to the price. It is therefore a matter of contract or convention between them,- and what she thus becomes entitled to receive is not by way of bounty, like other general bequests, but as purchase money for what she relinquishes.” See 2 Scribner on Dower, 469 ; Fitts et ux. v. Cook, 5 Cush. 569; Carder v. Comrs. of Fayette County, supra.
We have already seen that a prerequisite to the application of the doctrine of election is, that a benefit should be conferred upon the devisee which can be laid hold of by a court of equity to compensate the parties from whom the devise is taken by the election. Had the widow renounced the will, it seems clear she would have taken more out of her husband’s estate than is devised to her by the will, and taking, therefore, as purchaser, she is not a beneficiary under the will, within the meaning of the rule. Moreover, if it be conceded that Mrs. Growl was put to her election, it seems clear that the facts relied upon as showing that she made an election to take under the will are ineffectual. The text writers and decided cases lay down the rule, with practical uniformity, that where one has an election between several inconsistent courses of action, he will be confined to that he first adopts, and any decisive act, done with knowledge of his rights and of all the facts, determines his election, and estops him from asserting to the contrary. (Bigelow on Estoppel, 578.) But it is requisite, in order to bind a party by election, that it' be made with full knowledge of all the facts, and if made by mistake or under misapprehension, or in ignorance of the facts or the rights of the party, it will not be conclusive. 2 Story’s Eq. Jur. 1097; 2 Jarman on Wills, 40, et seq.; 2 Redfield on Wills, 362, and note.
In Pratt v. Douglas, 38 N. J. Eq. 516, it appearing that the widow had acted in good faith and upon the advice of counsel, it was said: “When a party is bound to elect between two inconsistent rights, and the contention is that an election has been made by conduct, it must be shown that the party acted with the knowledge of his rights,—that knowing he could not hold the property which he was otherwise entitled to, and that given him by the will, he acted with an intention to relinquish the former and accept the latter.” And it was held, the widow having acted upon the advice of counsel, that the rights were not inconsistent,—there was no election,—citing Williams v. Thornburg, L. R. (10 Ch. App.) 329; Dillon v. Parker, 1 Swanst. 359 ; Bradbury v. Clark, 2 McN. & G. 298; Spread v. Morgan, 11 H. L. Cas. 588. Where the rights of third persons have not intervened, an election made in ignorance, or under misapprehension of the effect of the act or the extent of the party’s rights, is not binding, and may be revoked. Pomeroy’s Eq. Jur. sec. 572; McNatt v, McNatt, 2 Stew. Eq. 54; Dillon v. Parker, supra.
The last case cited is instructive upon the point under consideration. There the son had devised property of the father to sisters, and had also devised an estate belonging to himself to the father. The father entered into the estate devised to him, and continued in the possession of the property devised to the sisters. It was insisted, that having taken the property devised to him, there was an election to take under the will, and that he was estopped from asserting title to the estate devised to the sisters. It was held, upon the principle before announced, that it must be shown that he was apprised of the necessity of electing; that knowing he could not hold both the property to which he was previously entitled and that which was given to him by his son, he voluntarily abandoned the one for the other; that there could be no election without an intention to make it, upon full knowledge of the effect of the acts alleged to constitute the election. See Wake v. Wake, 1 Ves. Jr. 335 ; Reynard v. Spence, 4 Beav. 103; Edwards v. Morgan, 3 Price, 728; Winton v. Clifton, 21 Beav. 447; Sopwith v. Maughan, 30 id. 325; King v. LaGrange, 50 Cal. 328; Beard v. Knox, 5 id. 252; Evans’ Appeal, 51 Conn. 435; Watson v. Watson, 128 Mass. 152; Estate of Woodburn, 138 Pa. St. 606; Cowdrey v. Hitchcock, 103 Ill. 262.
It affirmatively appears, that .shortly after the death of her husband Mrs. Growl sought and obtained advice from reputable attorneys as to the effect that taking under the will would have upon her title and interest in the 180-acre tract of land, and was advised, in effect, that her failure to renounce the will would not in anywise affect her title thereto, and that she acted upon such advice. She continued in occupancy of the tracts of land designated as the homestead, the residence being upon her land, and the barns, etc., being upon land of which her husband was seized, asserting title and ownership to the 180 acres inherited by her from her mother, until February 12, 1875, when she conveyed the same, by„warranty deed, to her daughter, Maria A. Growl, reserving to herself a. life estate therein. Conceding, therefore, that the case is one calling upon her to elect, the facts shown effectually rebut the presumption of any intention upon her part to abandon her title and accept in lieu of it the provision's made by the will. Indeed, it is as clear as proof can make it, that in continuing to occupy the homestead and accepting the devise of personal property she did so with the express understanding, on her part, that she was not thereby electing to abandon title toller land, and it seems clear that for the benefit of the estate, and to its advantage, she took the provisions of the will in discharge of her rights, as widow, in her husband’s estate, only. We are of opinion, therefore, that in no view of the-case that can be taken was the title of Mrs. Growl affected by her acceptance of the provisions made for her in the will; that the title remained in her, to all intents and purposes, as if she had formally renounced its provisions for her benefit, and that by her deed title passed to Maria A. Growl, and upon her death, intestate, descended to her heirs-at-law.
The remaining question to be considered arises under the-ninth clause of- the will, by which there is given to Maria A. Growl, daughter of the testator, at the death or marriage of' his widow, “out of said homestead,” the sum of $3000, and the principal question discussed is, whether this legacy was vested or contingent. Maria A. Carper, (nee Crowl,) the legatee, died intestate November 20, 1884, leaving appellants her only heirs-at-law. Mary Ann Growl, the widow, died without having again married, March 29, 1891. It therefore appears that the legatee died before the happening of the contingency upon which the legacy was payable, and, it is insisted, the legacy therefore lapsed. The rule formerly seems to have been, in regard to sums of money payable out of land in futuro, that whether charged upon the real estate primarily, or in aid of the personalty, they lapsed if the legatee died before the time of payment. (2 Blackstone’s Com. 513; 2 Vern. 439; 3 Atk. 112; 1 id. 482.) “But,” says Mr. Jarman, (vol. 2, 450,) “this doctrine has undergone some modification, and the established distinction now is, that if the payment be postponed with reference to the circumstances of the devisee of the money, as, in case of legacy to A to be paid at his age of twenty-one years, the charge fails, as formerly, unless the devisee lives to the time of payment. But, on the other hand, if the postponement of payment appear to have reference to the situation or convenience of the estate, as, if land be devised to A for life, remainder to B in fee, charged with a legacy to 0, payable at the death of A, the legacy will vest instanter, and, consequently, if G die before the day of payment, his representatives will be entitled.” (See, also, 2 Redfield on Wills, 251; Marsh v. Wheeler, 2 Edw. Ch. 163.) Pecuniary legacies charged on land are, so far as they are made a charge thereon, to be considered as dispositions pro tanto of the realty. O’Hara on Const. of Wills, chap. 20, sec. 3; 2 Jarman on Wills, 450; Scofield v. Olcott, 120 Ill. 362; Theobald on Law of Wills, 412, et seq.; Green v. Hewitt, 97 Ill. 113.
It will be unnecessary to discuss at length the doctrine of contingent and vested remainders. The rule is well established that a remainder will not be held to be contingent, unless, from the language of the instrument, that result was manifestly intended, otherwise the estate will be regarded as vested. The principles applicable to the vesting of devises of real estate apply, generally, to gifts of personalty. Where, however, there is no original gift of personalty, but only a direction to pay at a future time, the vesting will, ordinarily, be postponed until the time of payment. (1 Jarman on Wills, 833.) But if it appear that the time relates only to the payment, and is not annexed to the substance of the gift, the legacy is at once vested. (Idem.) In the former case,—that is, where there is no other gift than the mere direction to pay in futuro,—the doctrine already announced applies, and if it appear that the payment or distribution is postponed for the convenience of the estate, the legacy becomes vested at once, and is not postponed until the time of payment, (Scofield v. Olcott, supra; Chapin v. Crow, 147 Ill. 219, and cases cited;) the rule being, that if the payment or distribution is postponed because of the position of the fund or estate out of which it is to be paid, the legacy vests at once, and the time of payment, only, is postponed; on the other hand, if the postponement be for reasons personal to the legatee or devisee, the remainder is contingent.
In the provision made for the daughter, Maria A., the testator devises and orders that she shall have her support “out of the avails of said homestead,” during the lifetime or widowhood of the testator’s wife, and at her death or marriage “have out of said homestead” $3000. There is here a devise of $3000 to the daughter, to be paid out of the homestead upon the event of the marriage or death of the testator’s widow. While the payment might be accelerated by the marriage of the widow, the event upon which the payment was ultimately to be made was certain. There was, therefore, no contingency in respect of the time when the legacy should vest in possession, and the postponement related only to the time of payment, and was in no way annexed to the substance of the gift. It would therefore, under the rules announced, seem clear that the legacy vested in presentí in the daughter. The same result will follow if the gift is held to lie in the mere direction to pay the legacy out of the homestead, upon the death of the widow. The case would fall within the rule stated, that where the postponement is for the convenience of the estate, as, to let in a prior gift for life, the legacy is vested, and the time of payment, only, is postponed. By the eighth clause of the will the estate upon which the legacy is charged was devised to the wife of the testator for life or widowhood, and by the ninth clause the avails of the same estate are charged with the support of the daughter during the same period. The manifest purpose of postponing payment of the legacy was to preserve the estate intact to the life tenant, and for the support of the daughter. The legacy was therefore vested in interest upon the death of the testator, and upon the decease of the legatee went to her personal representatives, postponed until the happening of the event upon which it was pay’able.
It clearly appears to have been the intention of the testator that the legacy should he charged upon the real estate designated as the homestead, and a fund thereby created out of which it should be paid, and it follows, that unless the fund thus created has failed, it is alone liable for the payment thereof. (1 Roper on Legacies, 198, 670, et seg.; 3 Pomeroy’s Eq. Jur. sec. 1133, note 1.) It is unimportant, in the payment of a demonstrative legacy, as is here created, that a part of the fund out of which it is payable has failed, if sufficient remains to satisfy the legacy, for by the will it is charged against all and every portion of the fund. Here, the fund as to the 180-acre tract belonging to the wife, if it be held to have been the intention of the testator to include the same therein, has failed. But this by no means defeats the right to have satisfaction of the legacy out of the residue of the land out of which it was to be raised. Nor does the fact that the title to the land is in the legatee, under the circumstances of this case, merge or abate any portion of the devise. Where the person in whose favor the charge exists comes into the inheritance upon which the legacy is charged, there is a merger, either total or pro tanto, of the legacy. 2 Pomeroy’s Eq. Jur. sec. 768, et seq.; Chester v. Willes, Ambler, 246; Forbes v. Moffatt, 18 Ves. 384; Seys v. Price, 9 Mod. 120; Preston on the Law of Merger, *567. But that principle can have no application here, for the reason that the estate not belonging to the testator was in nowise subject to the charge by him. It would not for a moment be contended, if the conveyance by Mrs. Growl had been to a stranger, that the assertion of title in him to the 180-acre tract would in anywise affect the legacy of $3000 to the daughter. Here the daughter, Maria A., took the title as purchaser from her mother, and holds it independently of any right acquired by, through or under the testator.
The decree of the court below will accordingly be reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion.
Decree reversed.