As stated by Ailshie, J., respondent removed the will from testator's lock box at the bank and took it to a lawyer who told her it " 'was doubtful about the will' being in force and effect," and "It is also conceded that all parties to the proceedings, that is, respondent and the appellants, (five children of David F. Dowd by a former marriage), were notified of the existence of the will, although there is some dispute as to whether or not two of them were apprised, before the appointment of an administratrix, of the contents of the will. All parties to this action acted upon the theory that there was no will, or rather, that there had been a revocation of the will." *Page 641
E.A. OWEN, Lawyer:
"Q. Do you recall about mid-April, in Nineteen, Thirty-eight, of having some business for Mrs. Dowd in connection with the prospective probate of her deceased husband's estate?
A. I do.
Q. At that time — about that time, did you see David G. Dowd, Gertrude Dowd Bartlett, Jennie Dowd Benthin, Charles A. Dowd and George H. Dowd, or any of them?
A. Yes, I did.
Q. Which ones did you see?
A. I saw Dave, and Charles, and George, and Mrs. Benthin. Is that the name?
Q. Yes.
A. Not Mrs. Bartlett.
Q. Not Mrs. Bartlett.
A. No.
Q. Now, at that time had the petition for letters of administration been filed in the Probate Court of this County, on the estate of David F. Dowd, deceased?
A. No, it had not been filed.
* * * * * * *
Q. With relation to the date the petition for letters of administration was filed, what was the time, if at all, that the three Dowd men and Mrs. Benthin were informed of the existence of a purported will?
A. Two or three days before the petition was filed.
Q. And the petition was filed in April, Nineteen, thirty-eight?
A. That's true.
Q. Could you say whether they, or either of them, read the document?
A. I think not.
Q. You think not?
A. Yes.
Q. Can you say whether or not you informed them, or either of them, of the contents of the purported will?
A. I did.
Q. You did?
A. In fact, they knew the contents. *Page 642
Q. Through communication from you or from some other source?
A. I don't know.
Q. They knew about it?
A. Yes.
Q. And you talked with them about it?
A. Yes.
MRS. IDA LEONORE DOWD, petitioner-respondent:
"Q. At that time your previous testimony indicated that the day after Mr. Dowd's funeral you took the purported will to Mr. Owen?
A. Yes sir; on the eleventh.
Q. The eleventh of April, Nineteen, thirty-eight?
A. Yes.
Q. And what did you request him to do?
A. I requested him to explain to Mr. Dowd's children about the will, and he told me that he would do so, and to read it to them.
Q. You refer to the other heirs?
A. Yes, the other heirs.
Q. And issue of David F. Dowd, deceased?
A. Yes.
Q. And subsequently, what information did you get from Mr. Owen as to what he had done with the will?
A. Well, he told me that he would look the will over, and study it, but that he thought it was revoked.
Q. But was any information conveyed to the five heirs?
A. He told me that he explained it to them, and read the will to them."
DAVID G. DOWD, contestant-appellant:
"Q. Mr. Dowd, you and some of your brothers and sisters called on Mr. Owen sometime about the eleventh day of April, Nineteen hundred and thirty-eight?
A. Yes sir.
Q. And did you go there at the request of Mrs. Dowd?
A. Yes.
Q. And did Mr. Owen tell you anything about the will?
A. Yes, he did.
Q. Did he show you the will? *Page 643
A. No, he didn't; I don't think he did; he just said he had the will. He might have had it on his desk, but I don't remember him showing it to us.
Q. Did he tell you the contents of the will?
A. Not a thing.
Q. And did you at that time know the contents of the will?
A. Never did.
Q. Did you know anything about the will on the thirteenth day of April, Nineteen, thirty-eight.
A. Yes; I knew there was a will.
Q. But did you know anything about the contents on that day?
A. No sir; none whatever.
Q. Did you know anything about the contents of the will until sometime after the commencement of the proceedings?
A. No."
Equitable estoppel or estoppel in pais are applied to a situation where one who is excusably ignorant of the true facts has relied upon false representations of one who knew the truth, to his substantial prejudice or injury. (19 Am. Jur. 634, sec. 34; 21 C. J. 1119, sec. 122; Williams v. Neeley, 134 Fed. 1, 11, 69 L.R.A. 232; W. S. Gray Cotton Mills v.Spartanburg County Mills, (S.C.) 137 S.E. 684; James v.Nelson, 90 Fed. (2d) 910, 917; Dallas Building L. Ass'n v.Patterson, (Tex.) 48 S.W. (2d) 657; New York Life Ins. Co. v.Rees, 19 Fed. (2d) 781, 784; In re Sarvey's Estate, (Ia.)219 N.W. 318; Bank of America of California v. Pacific Ready-CutHomes, (Cal.) 10 P.2d 478, 481; Reid's Admin'r v. Benge, (Ky.) 66 S.W. 997, 998.)
Thus, in order to create an estoppel in pais the party pleading it must have been ignorant of the facts constituting the estoppel, and where, as in the case at bar, all parties are equally aware of the true facts there can be no estoppel. (Cahoon v. Segar, 31 Idaho 101; Johansen v. Looney, 31 Idaho 754;Page v. Savage, 42 Idaho 458, 475; In re Davis' Estate, (Cal.)101 P.2d 761, 102 P.2d 545; Idaho Farms Co. v. NorthSide Canal Co., 24 Fed. Supp. 189, 107 Fed. (2d) 382, 82 A.L.R. 297; *Page 644 O'Neal v. Turner, (Ala.) 158 So. 801; Toms v. Hellman, (Cal.)1 P.2d 31; General Motors Accpt. Corp. v. Gandy, (Cal.)253 P. 137; Myers v. Burke, (Conn.) 179 A. 88; Rosser v. TexasCo., (Okla.) 48 P.2d 327; Makiesky v. National GuardianLife Ins. Co., (Minn.) 219 N.W. 864; 21 C. J. 1123, sec. 126.) Since appellants made no attempt to have the will probated or to compel respondent to produce it, it is probable, as stated by the trial judge, that they knew its terms and provisions, and there is ample evidence to support that view. Whether they actually knew the terms of the will or not there was absolutely no barrier to their finding out (I. C. A., secs. 15-202, 15-204 and 15-206) and under the long standing pronouncements of this court, supra, and indeed the universal rule everywhere, that fact alone is sufficient to defeat an estoppel herein. Appellants were in exactly the same position as respondent; they had all the knowledge she had and likewise every right (or duty) to have the will probated. Instead they chose to let the will lie dormant, (no doubt intentionally so, since it was to their interest to not take under the will) realizing full well that any heir or interested party might produce it for probate at any time, but hoping that such would not be done.
A second essential element of estoppel is totally lacking herein. That is the element of substantial prejudice resulting from a reliance on respondent's misrepresentations, if there were any misrepresentations on her part. (Coeur d'Alene v.Spokane etc. R. Co., 31 Idaho 161, 166; Sunshine Mining Co. v.Terinies, 19 Fed. Supp. 587, 99 Fed. (2d) 651, 60 S. Ct. 44,308 U.S. 66, 84 L. Ed. 85; Pace v. Pace, (Miss.) 65 So. 273;Matheson v. Matheson, (Ia.) 117 N.W. 755; Barnhardt v.Morrison, (N.C.) 101 S.E. 218; Bridges v. Agee, (Tenn.)69 S.W.2d 891; Illinois Cent. R. Co. v. Ward, 35 S.W.2d 863, 868;Wilmington Furniture Co. v. Cole, 178 S.E. 579, 207; Howe v.Sioux County, (Ia.) 163 N.W. 411; Vinton v. Atlas Assur. Co.,178 A. 909, 912; Makiesky v. National Guardian Life Ins. Co.,supra; Frohman v. Madden, 13 Idaho 138, 88 P. 894; Eastwood v.Standard Min. etc. Co., 11 Idaho 195; Leland v. Isenbeck, 1 Idaho 469.) *Page 645
The injury or prejudice resulting must be substantial and actual, not merely technical, formal or supposititious surmises. (Ashwander v. Tennessee Valley Authority,97 U.S. 288, 80 L. Ed. 688; 19 Am. Jur. 735, sec. 85.)
Respondent's share of the estate was considerably more under the will than under intestate disposition, thus she stood to lose by not probating the will and the law does not permit appellants an unjust gain because of her innocent mistake of law. (21 C. J. 1125, sec. 128; 19 Am. Jur. 794, sec. 141.)
A delay in probating a will brought about by executor's mistake as to its validity has been held not sufficient ground for an estoppel. (Peter v. Peter, (Ill.) 175 N.E. 864. See also, First National Bank v. Witherspoon Livestock Commission, (Mo.) 90 S.W.2d 453; Succession of Gilmore, (La.)102 So. 94), and the annotation in 50 A.L.R. 912, where the rule is stated thus:
" 'It is not intended to say that the plea of ignorantia juris would in all instances be available in civil cases, . . . because some legal propositions are so plain and familiar, even to ordinary minds, that it would be doing violence to probability to impute ignorance in such cases; but it is only meant to say that where the legal principle is confessedly doubtful, and one about which ignorance may well be supposed to exist, a person acting under a misapprehension of the law in such a case shall not forfeit any of his legal rights by reason of such mistake.' Quoting from Lammot v. Bowley, (Ind.) 6 Harr. J. 500."
Equitable estoppel is predicated on a change of position whereby the person claiming the estoppel has been deprived of some substantial legal right. (Kentucky Home L. Ins. Co. v.Kittinger, (Ky.) 90 S.W.2d 673, 103 A.L.R. 1361;Ashenwander v. Tennessee Valley Authority, supra.) Appellants possess every legal right in regard to contest of the will they would have had if it had been probated at once; they have given up nothing and their position is equally as good now as at any time, legally and otherwise.
In this connection it is well to remember that estoppel is an equitable doctrine to prevent unjust enrichment — it is a shield and not a sword (Adler v. Pin, 80 Ala. 351; *Page 646 Daniels v. Tearney, (W.Va.) 102 U.S. 415, 26 L. Ed. 187;Idlewild Farm Co. v. Elkhorn River Drainage Dist., (Neb.)206 N.W. 741, 744; Reese v. Spence, (Ga.) 4 S.E.2d 244, 247) and appellants must not be permitted to use it to gain a share in an estate to which they are not otherwise entitled.
After all, the only injury asserted by appellants themselves is that they expended some time and money in contesting respondent's creditor's claim against the estate which they now assert they would not have expended had they known she intended to probate the will. This injury has now been rectified by the offer of respondent to repay all such loss.
The only other injuries conceived herein (and those not by the parties involved) are "a measure of mental disquietude and family disturbance and discord" and the possibility that appellants, or some of them, might "recall their own mother, with the thought, common in such cases, that she may have contributed to the accumulation of a part of this estate which is to be taken by another"; results which would, of course, have been just as true had the will been probated without delay. To use equitable estoppel to prevent the probate of the will under these facts is indeed, in the words of Shakespeare, to "devise strange deaths for small offences done." (2 Henry VI, Act III, Scene 1.)
Since no estoppel is present the other points must be decided.
The law is well settled that a restrictive statute such as sec. 14-307, I. C. A., abrogates implied or other than enumerated revocations. (Hunter v. Baker, (Md.) 141 A. 368;In re McGill's Will, (N.Y.) 128 N.E. 194; Aschenbeck v.Aschenbeck, (Tex.) 62 S.W.2d 326; In re Finkler's Estate, (Cal.) 21 P.2d 681, 687; Freeman v. Hart, (Colo.)158 P. 305; In re Appenfelder's Estate, (Cal.) 278 P. 473; Noesen v.Erkenswick, (Ill.) 131 N.E. 622.)
A divorce is not a statutory cause of revocation and under the above rule not cognizable as an implied ground of revocation. (In re Patterson's Estate, (Cal.) 222 P. 374; Inre Brannon's Estate, (Cal.) 295 P. 83; Pacetti *Page 647 v. Rowlinski, (Ga.) 150 S.E. 910; Card v. Alexander, (Conn.) 48 Am. Rep. 187; In re Jones' Estate, 60 A. 915, 69 L.R.A. 940, 107 Am. St. Rep. 581; Hunter v. Baker, supra; Sanders v.Simoich, 2 P. 741, 743.)
A property settlement, unless inconsistent with or plainly setting aside or annulling a previously executed will, does not operate as a revocation. (I. C. A., sec. 14-317; In reNenaber's Estate, (S.D.) 225 N.W. 719; Robertson v. Jones, (Mo.) 136 S.W.2d 278; In re Brannon's Estate, supra; In reCrane's Estate, (Cal.) 57 P.2d 476, 104 A.L.R. 1101; Inre Swords' Executrix, 199 N.Y. S. 673, affirmed in 204 N.Y. S. 952; In re Brown's Estate, 117 N.W. 260; 26 Cal. Jur. 1026, sec. 307.)
The property settlement herein1 (part of contestant's *Page 648 Exhibit 3) is not inconsistent with the Will,2 hence was not a revocation. (In re Brown's Estate, supra; In re Nenaber'sEstate, supra; Robertson v. Jones, supra; In re Crounse's Will,6 N.Y. S. (2d) 32; In re Brannon's Estate, supra.)
The remarriage was not a revocation because, first, not so specified in the statute, and second, the will makes provision for the wife. (I. C. A., sec. 14-312; In re Brannon's *Page 649 Estate, supra; In re Crane, supra, and note 104 A.L.R. 1104;In re Adler's Estate, (Wash.) 100 P. 1019.)
The heirs have not been hurt by respondent's failure to present the will for probate, though she should have done so. (I. C. A., sec. 15-201.)
The trial court's decree should be affirmed and therefore I dissent.
I am authorized to say that Chief Justice Budge concurs with me in this dissent.
1 The property settlement in the divorce decree states:
"IT IS FURTHER ORDERED, adjudged and decreed that the following described property, situated in Bonneville County, Idaho, be, and the same is hereby declared to be the separate property and estate of the plaintiff, to-wit:
Lots One and Two, Block One, of the Townsite of Milo, Idaho, and the West Half of the Northwest quarter of Section Nine, Township 3 North, Range 39 East, Boise Meridian, containing 84 acres, more or less, according to Government Survey, together with 24 shares of stock in the Harrison Canal Irrigation Company, representing 120 inches of water.
Also those certain store fixtures heretofore used by the plaintiff in her millinery business carried on at Idaho Falls, Idaho.
IT IS ALSO FURTHER ORDERED, ADJUDGED AND DECREED that the following described property, situated in Bonneville County, State of Idaho, be, and the same is hereby, declared to be the sole and separate property and estate of the defendant, to wit:
Lots Four, Five and Six in Block 23 of Railroad Addition to the town of Idaho Falls, formerly Eagle Rock, as per the recorded plan and plat thereof.
Also that all mining property, claims, filings, etc. wherever situated in the State of Idaho, or elsewhere, standing of record in the name of the defendant, or in which the defendant has any interest, however such interest may be evidenced, and together with any and all personal property of every kind and description held by the defendant, or by any person holding the same for him, is hereby declared to be the sole and separate property and the estate of the said defendant, and this court does hereby decree the same to be the sole and separate property and estate of said defendant, and that the plaintiff has no interest therein whatsoever, excepting
That the plaintiff is the holder of a valid junior mortgage given to her by the defendant upon the property situated in said Block 23 in Railroad Addition to Idaho Falls, herein previously described, which mortgage is her sole and separate property.
Dated as of the 23rd day of June, 1933.
(Signed) C.J. Taylor DISTRICT JUDGE."
2 The will herein is as follows:
"Realizing the uncertainty in the length of life and desiring to make disposition of my property while in sound mind and body, I, David F. Dowd, hereby declare and publish this my last will and Testament.
1. I desire that my fineral expenses and debts, if any, be settled, early as convenient after my death.
2. I will, devise and bequeath to my wife Ida Leanore Dowd to have and to hold for her and her heirs and assigns forever all of my property of every kind and nature, both real and personal of whic which I may be possessed at the time of my death.
3. I will, devise and bequeath to my five children as follows:
To D.G. Dowd, the sum of $25.00 in cash. To H.F.G. Dowd, the sum of $25.00 in cash. C.A. Dowd, the sum of $25.00 in cash. Jennie K. Dowd, the sum of $25.00 in cash and to Mrs. Mary Gertrude (Dowd) Bartlett, the sum of $25.00 cash.
4. I request that the said Ida Leanore Dowd be appointed executrix of this my last will and testament and that she may be permitted to serve without bond.
In Witness Whereof I have hereunto set my hand this 11th day of November A.D. 1915 in the presence of witnesses called by me to witness the signing of my will.
David F. Dowd"
(Duly signed by three attesting witnesses)