The opinion
ON REHEARING
Decided Jan 22, 1934
Froome Morris, Cincinnati, and William E. Rielly, Cincinnati, for the motion.
Frank S. Bonham, Cincinnati, Chester S. Durr, Cincinnati, .and Irwin S. Rosenbaum, Cincinnati, contra.
By THE COURT
After the decision was announced in this case, Froome Morris was employed as counsel, representing some of the interested parties and filed a motion for a rehearing and for a new trial.
The only question raised by the brief in support of the motion, not covered at length in the original opinion, rendered in this case, bears on the question of election. The court in the original opinion did not discuss the question at length, as it did not consider that the plaintiff had lost her right to enforce the contract, by reason of any election. In the brief in behalf of the motion, counsel urges that since Lillian Adams accepted a legacy of $500.00 bequeathed to her in the will, and had received a distributive share of other real estate, that she, was thereby estopped to maintain this action on her claimed contract. We have re-examined this question and are unable to see how Lillian Adams can be estopped to maintain the present action by accepting the legacy and a distributive share of the real estate not in controversy. At the time she accepted the legacy, in her receipt therefor, she specifically reserves her right to enforce the contract in the action then pending. The will did not specifically devise any real estate. After bequeathing certain legacies, the testatrix devised her other property in a residuary clause. If this property was in equity the property of Lillian Adams, the testatrix would have had no right or power to devise the same, since in equity it belonged to Lillian Adams. Therefore, it could not be the subject of an election. There was no suggestion in the will of any election being necessary in order to receive the legacy.
Our conclusion is, that Lillian Adams was not bound to make an election in receiving the bequest under the will.
It may be that the testatrix did not consider that she owned the property under contract to Lillian Adams in disposing of the residue of her estate.
We conclude that Lillian Adams is not estopped to maintain this action. This conclusion is supported by Page on Wills, 6th Edition, §1196, page 1994; Pomeroy Equity Jurisprudence, page 899; Bebout v Quick, 81 Oh St, 196; Church v Church, Exrx. et, 57 Oh St, 561, at 580.
From this re-examination the court is content with the decision heretofore rendered, and the motion for a new trial is overruled.
HAMILTON, PJ, CUSHING and ROSS, JJ, concur. ■