It is averred that the testator was the owner of the lot devised to the plaintiff, and also the owner of the premises in controversy, which it is alleged he devised in equal shares to other children. In order to raise a case of election, there must be a clear intention expressed on the part of the testator to give that which is not his property. This implies that the person put to an election has some right in regard to this subject, which he could maintain independently of the will. (2 Redf. on Wills, 737, 744, 745; 1 Jarman on Wills, 442; 2 Story's Eq. Jur. §§ 1086, 1087, 1089; Willard's Eq. Jur. 455; Attorney-General v. Lonsdale, 1 Sim. R. 105; Havens v. Sackett, 15 N.Y. 365; Thellus v. Woodford, 13 Ves. 224.) If the facts were as averred, the defendants were not under the necessity of invoking the aid of the doctrine of election.

         JUDGES: Department No. 2, Thornton, P. J. Myrick, J., and Sharpstein, J., concurred.

         OPINION

          THORNTON, Judge

         This is an action to quiet title to a lot of land situate in the City and County of San Francisco. The complaint is in the usual form. All of the allegations of the complaint are denied as to one-third of the lot of land referred to. The defendants also set up in defense the Statute of Limitations; and for another and separate defense (styled the third defense) pleaded, that on the 17th day of March, 1862, one Jose de Jesus Noe, the father of the plaintiff, was the owner of the tract of land in controversy, and also the owner of a tract of land whereon one Deering resided; that said Noe died on the day just named, leaving a will, whereby he devised to plaintiff the tract of land whereon Deering resided, and by the same instrument devised to Dolores, Jesus, and Vicente Noe, in equal shares, the lot in suit; that on the 14th of July, 1862, the will of Jose de Jesus Noe was duly probated by the Probate Court for the City and County of San Francisco, and on the 13th of December, 1872, a decree of distribution was duly made by said Probate Court, under which decree the plaintiff has, ever since it was entered, held and possessed the lot on which Deering resided, and thus elected to affirm the said will and all its provisions; that on the 30th of November, 1872, Jesus Noe conveyed his interest in the lot in suit to defendant Catalina, the wife of the other defendant, A. D. Splivalo. The decree was set out verbatim in this third defense, and by it the lot referred to was distributed to the plaintiff. The Court below gave judgment for the plaintiff; defendants moved for a new trial, which was denied, and they have prosecuted this appeal from the judgment and the order above stated.

         On the trial, the plaintiff, having introduced testimony to show his title, rested, and defendants then proceeded to put in testimony, and made an offer, as appears from the statement, as follows: " And said defendants then, for the purpose of establishing the third defense set up in the answer, offered to prove the following facts; " to the introduction of which plaintiff objected, the objection was sustained, and defendants excepted. The evidence thus offered and excluded is substantially the same as the facts set forth in the third defense, except the fact that the testator named herein owned the tract devised by him to Dolores, Vicente, and Jesus Noe.

         It is here contended, on behalf of the defendants, that the court erred in excluding the offered testimony, because it showed an election on the part of plaintiff to take the land devised to him, by which he was and is estopped to urge his title to the land sued for, conceding that the land belonged to him when the testator devised it.

         The rule is well settled, that if a testator undertakes to dispose of the property of a third person by will, and such person accepts a bequest or devise under the will, such acceptance is a confirmation of the dispositions of the will; for a person cannot accept a benefit under a will, and at the same time reject it, by asserting in opposition to it his own inconsistent proprietary rights. (Morrison v. Bowman, 29 Cal. 337, 347-8, and references there made.)

         The contention of the defendants is maintainable, if the evidence is admissible under the pleadings on behalf of defendants. The plaintiff urges that it is not so admissible, because, when offered, it was limited to the third defense; and such defense does not, by its allegations, show a case where plaintiff was compelled to elect--the pleader there having averred that the tract of land devised to plaintiff, and the tract sued for, both belonged to the testator when he made his will.

         We are of opinion that the plaintiff is estopped from urging his title to the interest in controversy, by the decree of distribution included in the offer made by defendants. It appears that the plaintiff and all other parties interested in the will and the estate were before the Probate Court when the decree of distribution was passed, and agreed thereto. The plaintiff was then called on to disaffirm the will, and not having then done so, he affirmed it in all its provisions.

         The Probate Court had jurisdiction of the subject-matter and the parties ( Code Civ. Proc. § 1665); the plaintiff elected to take under the decree distributing the property as devised by the will, and he was thus forever estopped from making any claim contrary to its provisions. When the decree was made, if he desired to retain his own land, he should then have declared his election so to retain it, by which the Court would have been relieved of the duty of decreeing the devised property to him, and would then have been at liberty to have satisfied the claim of the grantor of defendants under the will, out of the property which plaintiff declined to accept. (Story's Eq. Jur. §§ 1082, 1083, 1084; Hyde v. Baldwin, 17 Pick. 308.)

         In accordance with these views, the evidence was admissible under the third defense referred to, and the Court below erred in excluding it.

         For these reasons, the judgment and order are reversed, and cause remanded for a new trial in conformity with this opinion.