Suit in partition of a certain lot or parcel of land in the city of St. Louis. At the conclusion of the testimony the courtnisi dismissed plaintiff's petition and she appeals.
The petition was in the usual form, alleging that J.T. McLain, deceased, by his last will and testament duly admitted to probate on the 8th day of November, 1916, devised and bequeathed said property to the Mercantile Trust Company, as trustee, for the benefit of plaintiff, and Margaret Merle Schierbaum, her daughter, and Girard D. Schierbaum, her grandson, to enjoy the income therefrom in the following proportions: One-half to plaintiff, one-fourth to her daughter, Margaret Merle Schierbaum and one-fourth to her grandson, Girard D. Schierbaum; that on the second day of January, 1917, plaintiff filed her renouncement of said will as the widow of said J.T. McLain, deceased; "that at the time of said renouncement she intended to take a one-half interest in said estate, and ever after that did take a one-half interest in said estate; that in making her settlements with said court, one-half interest in the rents of said property and said estate were given and awarded to her, and after the administration of said estate, a one-half interest in said rents and profits of said estate were paid to her by consent of all the parties, recognizing that she was the *Page 119 owner of a one-half interest in said estate by virtue of said renunciation so made as above."
It was further alleged that appellant paid one-half of the debts of the estate and one-half of the taxes due on said estate and that the Mercantile Trust Company paid the other half; and "that at the time of renouncing under said will the Probate Court of the City of St. Louis made an order that she take a one-half interest in said estate, and she has relied upon said renouncement and said conduct of the parties hereto as giving her an undivided one-half interest in said above property in fee simple right."
Other immaterial allegations were contained in the petition, and there was the usual prayer for partition of said real estate.
Defendants answered, admitting the death of J.T. McLain and due proof of his will, and the devise of said property to respondent, Mercantile Trust Company, as trustee, and that appellant renounced said will at the time alleged in her petition, and then specifically denied that by such renunciation, by election, or by any other means or medium, plaintiff became entitled to a one-half interest in the said premises.
The case was tried below upon an agreed statement of facts, which tended to support the allegations of appellant's petition in so far as the terms of the will were concerned, and it appeared that the Mercantile Trust Company, as trustee, had declined to take charge of the property devised, but it further appeared that it was otherwise performing its duty under the trusteeship created by the will.
Clauses Fifth and Sixth of the will are pertinent here and are as follows:
"Fifth. I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal, or mixed, wheresoever situated of which I may be seized or possessed, or to which I may be in any manner entitled, or in which I may be interested at the time of my death, unto the Mercantile Trust Company of St. Louis, *Page 120 Missouri, a corporation organized and existing under the laws of the State of Missouri, its successor or successors
"In trust, nevertheless, for the following purposes.
"Sixth. It is my further will and desire that all of my estate, real, personal, or mixed, wheresoever situated, shall be turned over to and taken possession of by my said trustee, to collect the rents from my real estate and the interest and income from my personal estate, and on the first day of December — Page 1 of my Will, J.T. McLain — and May of each year, divide the net income from my estate into three parts, one-half thereof to be paid to my wife, Florence O., one-fourth thereof to be retained and invested for the benefit of my grandson, Gerard D., son of Margaret Merle and Dan Schierbaum, to be used, together with interest therefrom, by my said trustee, for the purpose of educating my said grandson, Gerard D. Schierbaum, so as to fit him for any vocation which he may select. And to this end, I hereby empower and authorize my trustee to sell and convey, and to execute deed or deeds therefor, at such times and upon such terms as it may deem advisable, any of the property which may come to its hands, and I empower it to invest and reinvest the proceeds of my property real or personal, hereby vesting my trustee with all the power in respect to investments and reinvestments of my estate and the proceeds thereof, which I might personally exercise if living, specially intending and directing that my trustee shall not be restricted from continuing any of my investments in their present form, or from changing the same to any other form which it may deem wise."
Appellant's renunciation of the will was as follows:
"In the Probate Court of the City of St. Louis, Mo., December Term, 1916. No. 47, 103. "IN THE MATTER OF THE WILL OF THE ESTATE OF J.T. McLAIN, late of the city of St. Louis, State of Missouri, deceased. "I Florence O. McLain, widow of the said J.T. McLain, do by this act and deed renounce and refuse to *Page 121 accept the provisions made for me by the will of said J.T. McLain, dated the twenty-ninth day of April, 1912, and probated in the office of the Probate Court of the City of St. Louis, Mo., on the eighth day of November, 1916.
"Witness my hand and seal this second day of January, 1917.
FLORENCE O. McLAIN (Seal).
"State of Missouri, City of St. Louis, ss.
"On this second day of January, 1917, before me personally appeared Florence O. McLain, to me known to be the person described in and who executed the foregoing instrument and acknowledged that she executed the same as her free act and deed.
"In witness whereof, I have hereunto set my hand and seal of office the day and year above written.
"My commission expires January 4, 1919.
"(Seal).
KATE E. ROSSMAN, "Notary Public within and for the City of St. Louis, State of Missouri."
The whole conduct of the appellant and the further orders of the probate court, after the filing of the renunciation, were upon the theory that she had elected to take a child's part in said estate, and there being but one child, she would therefore be entitled to a one-half interest absolutely, subject to the payment of debts.
I. It is not contended here that appellant ever made an election as provided by statute. Under Section 329, Revised Statutes 1919, she executed a formal renunciation of the will.
By Section 328, Revised Statutes 1919, the benefits devised in said land were in lieu of dower and therefore she would not have been endowed in said real estate, except, pursuant to formal renunciation. She had twelve months after the proof ofElection. the will to execute and file her renunciation. She did this on January 2, 1917. The proof of the will was made on November 8, 1916. It resulted, therefore, that she was endowed in *Page 122 said real estate, as if there had been no will. Appellant mistakenly assumed that her renunciation was equivalent to and would have the effect of an election. Section 325, Revised Statutes 1919, specifically provides that where a widow elects to take a child's part under Section 324, Revised Statutes 1919, she shall make such election by declaration in writing, acknowledged before some officer authorized to take the acknowledgment of deeds and filed in the office of the clerk of the court in which letters testamentary shall have been granted. After renunciation of the will she became entitled to an election to take a child's part in lieu of dower.
Section 325 is mandatory as to what shall be done in the matter of an election and the provisions thereof should have been complied with, as such election is not effective until the declaration is executed and filed by her or someone for her. [Castleman v. Castleman, 184 Mo. 432, l.c. 444.]
II. Appellant seeks to overcome the mandatory provisions of this statute on the subject of election by pleading an estoppelin pais, that is to say, the conduct of the parties had been such as to amount to an equivalent of a formal election and this dispensed with the necessity therefor. Respondents sayEstoppel. that estoppel was not pleaded. In the view we take of the case it is not necessary to consider whether or not appellant properly invoked an estoppel by her pleadings. It is sufficient to say that an estoppel must be pleaded before it can be invoked (Kinloch Telephone Co. v. City, 268 Mo. 485, 188 S.W. 182; Berkshire v. Holcker, 216 S.W. 556, 202 Mo. App. 433), and we observe that an estoppel, even when pleaded, does not in itself give a cause of action and that its purpose is to preserve rights already acquired and not to create new ones. [Berry v. Insurance Co., 203 Mo. App. 459, l.c. 468.] This observation is not out of harmony with the holding in the case of Hubbard v. Slavens, 218 Mo. 598, l.c. 620, to the effect that where the assertion of a right is prohibited by an estoppel, modern *Page 123 equity jurisprudence will go further and vest title in the party rightfully invoking the estoppel. Such are not the facts here. Estoppels and the facts upon which they are predicated should be closely and critically scanned (Wyatt, Admr., v. White,192 Mo. App. 551), and moreover to constitute an estoppel in pais three things must concur: first, an admission, statement or act inconsistent with the claim afterwards asserted and sued on; second, action by the other party on the faith of such admission, statement or act; and, third, injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act. [Bank v. Ragsdale,171 Mo. 168, l.c. 185.]
Bearing these principles in mind it should be noted from this record that all the acting in this case was on the part of appellant. She filed her renunciation of the will. Presumably she knew her rights, and knew the statutory requirements as to an election. The trustee was obliged to do nothing. It was not called upon to take any action in the premises, and its conduct was not inconsistent with its trusteeship. It declined to take charge of the property, but the payment of the benefits to the beneficiaries in said trust was not inconsistent with the provisions of the will, and as appellant was administratrix the trustee did not act or omitted nothing that could in any way deceive or mislead appellant to her disadvantage.
Moreover, an estoppel in favor of appellant could not be invoked against the trustee. It was not the beneficial owner of the premises, but it held same as trustee and as such it was clothed with certain specific, limited and restricted power and this power it could only exercise in strict accordance with the terms of the will. It possessed the power to dispose of said property upon contingencies for reinvestment purposes, but it possessed no power to convey or dispose of said property except for the consideration in said will contemplated. It was not within its power to have made a deed direct to appellant to accomplish the purposes herein pursued, and *Page 124 it could not do indirectly that which it could not do directly. [De Lashmutt v. Teetor, 261 Mo. 412, l.c. 440.]
It appeared from the facts that the trustee may have been deceived by the conduct of appellant in proceeding upon the theory that she had made a formal election, and that it therefore acquiesced in some of the things done by her in harmony with that theory. This would not entitle appellant to invoke an estoppel.
In view of the foregoing we must hold that the judgment of the trial court was correct and same must be and is affirmed, and it is so ordered. Railey and White, CC., concur.