of title to said lands to plaintiff and M. V. B. Stacy, filed his petition in said probate court for leave to sell and convey whatever interest his said wards might have in said lands, and the said court then duly made an order authorizing and directing that said guardian make and execute such conveyance, which conveyance was made on May 8, 1883, whereby said guardian executed and delivered to said plaintiff and said Stacy a conveyance of all the right, title, and interest of his said wards, Mary A., Henry, Charles A., and Clara C. Mabry, in and to all of said lanus."

Stacy and plaintiff, immediately after their purchase from Clancy, went into possession of both tracts of land, and so remained until February 19, 1884, when Stacy conveyed his interest to plaintiff, who has ever since been in possession, claiming title under his deeds, making improvements, paying taxes, etc. The Mabry heirs never asserted any claim to either tract. In 1889 the plaintiff complied with some technical requirements of the land-office, and thereupon a patent was issued for tract 2. The executor received and accounted for the proceeds of the land sold to Clancy, and after May 1, 1884, had no other funds in his hands, and the complaint charges that the Mabrys "well knew of said sale of said lands by said executor, and that such purchase-money was held by said executor, to be distributed under the provisions of said will, and with full knowledge of such facts, and of all the matters herein set forth, the said several defendants, on their arrival at the age of majority, have each received and receipted for the several portions of such purchase-money for said lands due them in accordance with the terms of and under the provisions of the said will, and have retained and used the same." The sums paid to each, with the dates of payment, were stated in full. The final allegations of the complaint are, that about May 17, 1889, the defendant Saylor, for the purpose of injuring and defrauding plaintiff, and of casting a cloud upon his title to tract 2, represented to Clara C., Mary A., Charles A., and Henry W. Mabry that he could and would recover said tract 2 from plaintiff if they would execute quitclaim deeds to him for all their interest therein; that they disclaimed any and all interest therein; but that Saylor agreed that he would pay each of them twenty-five dollars for such quitclaim deeds, and would, in addition, pay to them a share and portion of whatever he should recover of said land; that being thereby induced by said Saylor, they

executed and delivered quitclaim deeds for their interest in said land, which at his instance were made to the defendant Lichty, who is not a resident of this state, and that these deeds have been recorded in the auditor's office. Saylor, after the delivery of the quitclaim deeds, procured the patent for tract 2 from the land-office, and now has possession of it. The plaintiff concludes that neither Lichty nor Saylor have any interest in tract 2, and that the quitclaim deeds are a cloud upon his title, and prays that the deeds be set aside and taken for naught; that Saylor be required to surrender the patent; that the cloud be removed; and that he be decreed to be the owner of tract 2 in fee-simple.

The court below found that the defendants Mabry, after attaining majority, elected to take under the provisions of the will of their father, instead of as his heirs, and ratified the sale made by the executor with full knowledge of the facts; and it decreed all things in accordance with the prayer of the complaint, as well as that the defendants, and each of them, should be enjoined from the assertion of any estate or interests in both tracts. The costs were charged to the defendants, and each of them.

It seems to us that no cause of action was stated against any of the defendants except Lichty. Simmons was merely the husband of one of the Mabry heirs, and could not, by any possibility, have or claim any interest in this land. Saylor somehow got hold of the patent, which, presumably, contained the names of Mabry's minor children as grantees, but to obtain it from him a personal action at law was all that was necessary. So far as the quitclaim deeds were concerned, he is a stranger to them, for Lichty is the grantee, and there were no allegations that Lichty was in any way a trustee for Saylor. It is stated that Saylor and Lichty "now openly claim an interest in said lands aforesaid, under said quitclaim deeds"; but however Saylor might "claim," unless he claimed that Lichty held this title to some extent as trustee for him, he could not be a proper or necessary party in a case where, as here, the whole attack is made upon the obnoxious deed. As to the defendants Mabry and Mrs. Simmons (née Mabry), it appears by positive allegation that they claimed nothing as against the plaintiff, even when executing their deeds for twenty-five dollars each, and surely after they had delivered their deeds they were divested of all further possible reason for asserting any interest, and it is not shown that they did or

do assert any. It is plain that whatever matters there were for controversy over tract 2 were all transferred to Lichty by his deeds, and a decree against him would settle the title just as effectually as though all the country were made defendants. Inasmuch as Lichty demurred separately to the amended complaint, it will be presumed that the others did likewise, or omitted to plead and were defaulted. They are entitled to a reversal of the decree against them, and to a dismissal of the action, with their costs. Neither should the decree in any event cover tract 1, as the title to it was nowhere put in issue.

The appellants maintain, upon the principal issue, that all of the proceedings of the probate court resulting in the deed of the executor and the guardian for tract 2 to Clancy were absolutely void, because Walter P. Mabry died before his right to patent had matured, and he leaving no wife, under section 2292 of the Revised Statutes of the United States, the "right and fee" to the patent and the land inured to his minor children instantly and without power of devise in him. It will be observed that if the interpretation proposed by the appellants for the above-mentioned statute is sustained, it would follow that the executor wrongfully included tract 2 in his inventory, since it did not belong to the decedent's estate, but to the Mabry children, to the exclusion of Emma, who was of age, and of all creditors; and that the only way in which the probate court could have acquired any jurisdiction over it was through its authority over the estate of the minors, which was not invoked. In the view we take of this case. however, we do not find it necessary to decide this point, Suffice it to say that the respondent meets it by two propositions: 1. That found by the court below, viz., that these minors, after the age of maturity, elected to take under the provisions of the will of their father, instead of as his heirs, and ratified the executor's sale with knowledge of the facts; 2. That the minors, having, after maturity, received their several portions of the proceeds of the executor's sale, with knowledge of the facts, are estopped to say that their title to the land did not pass to the plaintiff by the executor's deed.

We do not agree with the court below, that this was a case of election. The language of the will is not set out in the complaint, and taking the allegations upon the demurrer most strongly against the pleader, the reasonable construction would be that the testator, mindful of the provisions of the law, that upon his death would vest the right to patent and

the fee of the land in his children, he directed the title to the homestead to be perfected for them, and that his land, viz., tract 1, be sold when six thousand dollars could be realized from it. This is, of course, upon the assumption that appellant's view of the homestead law is correct. We have found no clearer statement of the law in regard to elections under a will than that in Toney v. Spragins, 80 Ala. 541, where it is said: “In a judicial interpretation of the will, and ascertainment of the real intent, the court will act on the presumption that the testator intends only to charge what belongs to him. When the testator owns a partial or future interest in the property devised, the established rule is, that the courts will strongly lean in favor of a construction which shows an intent to give only the interest of which he has the power of disposi tion, and with which he is authorized to deal by virtue of his own rights; and will require clear and unambiguous expression, expressly or by clear and manifest implication, of an intent to devise the entire property. To compel an election, it must satisfactorily appear that the testator attempted to dispose of what he did not own. . . . . If the expressions of the will are ambiguous or doubtful, and the court cannot determine that it was manifestly the intention to dispose of property not the testator's own, the prima facie presumption will prevail."

Admitting, therefore, that Walter P. Mabry had no devisable interest in his homestead, we hold that the rule of construction above laid down would not have required his minor children to make any election, but that they could have successfully claimed this land as their own, and could also share in the estate under the will.

Upon the question of the estoppel, we must, for the purpose of the decision, again assume the law concerning the homestead to be with the appellants. We have, then, the probate court assuming a jurisdiction not warranted by law, and directing the sale of property belonging to the Mabry minor heirs, the executor making the sale, in a lump, of both tracts, for a sum larger than that mentioned in the will, the proceeds of the sale going into the general funds of the estate, where it was subject to the claims of creditors, and the expenses of administration, and the guardian, for the sake of greater certainty to the purchaser, required to go through the form of a sale, the result of which was nothing to the estate of his wards, except as it was thereafter doled out to him by the executor.

We also have the purchaser seeking out two of the heirs, who were then of age, Emma and James, and procuring from them quitclaim deeds, showing some fear on his part that his title was not altogether safe. And over against these matters, all of which make for the appellants, we have only the fact that the other four minors, two of whom came of age in 1884, and two in 1888, as they passed majority, had settlements with the executor, received from him a proportional share of the estate, as though tract 2 had been governed by the will, and made no objection to the proceedings resulting in the deeds to Clancy, nor any claim that tract 2 was not the land of the plaintiff. In short, reduced to its lowest terms, we have A assuming to sell and convey, as his own, the land of B to C, for a consideration not alleged to be sufficient, and B, after years of possession and improvement by C, with full knowledge of the facts, accepting from A the money he received from C, and retaining it. All the rules of honorable dealing between man and man require that he who takes the benefit of a thing in this wise shall not have the thing again, and so the courts have uniformly held. In Smith v. Warden, 19 Pa. St. 424, a woman whose interest in certain land was sold by a sheriff, she not being bound by the judgment on which the sale was made, received her share of the purchase-money from the sheriff, and the court said that her acceptance of the money was an affirmation that her title had passed by virtue of the sheriff's sale, which she could not afterwards controvert. What were otherwise void guardians' and administrators' sales have been frequently held to pass the title where the parties interested, being of full age and in possession of the facts, accepted and used the proceeds. In Davidson v. Young, 38 Ill. 145, the court held that but for the fact that the proceeds had not been actually received by the defendant, she would have been estopped. In Walker v. Mulvean, 76 Ill. 18, the estoppel was sustained where the proceeds had been received by minors after coming of age. So in Penn v. Heisey, 19 Ill. 295; 68 Am. Dec. 597; Pursley v. Hays, 17 Iowa, 310; and Deford v. Mercer, 24 Iowa, 118; 92 Am. Dec. 460.

Appellants insist that in this case the Mabrys took the money from the executor as they found it, and had a right to receive it as the proceeds of tract 1 alone, which he had a right to sell under the will for six thousand dollars; that the purchaser being bound to know the law, he bought with constructive knowledge of all imperfections in the titles assumed