On November 14, 1969, appellant filed a caveat contesting the validity of the will executed by her mother on March 5, 1969, some two months prior to death and a codicil thereto, executed on April 24, 1969. The caveat alleged fraud, undue influence and lack of testamentary capacity, and, after amendment, further alleged that a testamentary trust violated the rule against perpetuities.

Appellant is the sole heir at law of the testatrix. She is also the beneficiary under a 1966 will under which she would obtain substantially all of her mother's property, though full enjoyment would be postponed until she became 35.1 The 1969 will and codicil would, if effective, operate to reduce appellant's interest substantially.2

Appellant consented to admission to probate of the 1969 testamentary documents but specifically reserved her right to file a caveat thereto. The appellant accepted distributions made to her pursuant to the will, both prior to and subsequent to her filing of the caveat, amounting to $17,000 as of September 3, 1970.

The trustee bank, and the guardians ad litem of those who are residuary beneficiaries under the trust established by the 1969 will, sought summary judgment.

The District Court, 318 F. Supp. 366, granted summary judgment on the ground that the acceptance of benefits under a will estops the recipient from contesting the validity of a will. The court relied on Utermehle v. Norment, 22 App.D.C. 31 (1903), aff'd 197 U.S. 40, 25 S. Ct. 291, 49 L. Ed. 655 (1905), and found that there was no supported contention of any fraud or misrepresentation which might operate to avoid the rule of estoppel.

Appellant relied in the District Court on the undisputed fact that the amounts she received under the 1969 will were less than the amounts she would have received under either intestacy or the prior will and emphasized (1) that there are no other beneficiaries who have received distributions under the will who would be affected by the challenge, (2) that under the traditional estoppel analysis, in order for a party to be estopped (here from objecting to the will's validity), there must be not only acquiescence in validity on his part, but also a change in position on the part of others, a condition which both existed in Utermehle and was relied on in the Utermehle opinion.3

The District Court quoted language from Utermehle which it considered to shed light on its rationale, and concluded that "the above quotation indicates that the Court found that these additional elements support estoppel, but that they are not necessary elements."4 However, the District Court did not take note of subsequent passages in Utermehle, both one which emphasized-with italics-that in a Massachusetts precedent relied on by the caveator, the legatee had returned the legacy before the executor had settled the account "or the position of any other person had been changed," and the concluding paragraph of Utermehle, set forth in our footnote, that emphatically stressed the change-of-position factor.5

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We turn to Bowen v. Howenstein, 39 App.D.C. 585 (1913). The court there considered whether there was an estoppel on the sister of the testatrix by virtue of her having consented to probate, and thereafter accepted, and receipted, certain items of jewelry. Justice Robb's analysis ran as follows:

a. "The doctrine of estoppel in pais is founded upon principles of morality, and is intended to subserve the ends of justice."

b. It is the general rule that a party is not estopped by an act unless it operates to the prejudice of him who relies on it as estoppel.6

c. The statute provides for caveat by an interested person, within specified time periods, after admission to probate.

d. "[It] must be presumed that Congress, in the enactment of this provision, was cognizant of the general rule deductible from the foregoing cases, that a party will not be estopped unless the act relied upon has resulted in the prejudice of him who relies upon it as an estoppel."

This reasoning is clear and authoritative. Congress has provided in D.C.Code Sec. 18-509 (1967):

After a will has been admitted to probate, a person in interest may, within six months from the date of the order of probate, file a verified caveat to the will, praying that the probate thereof be revoked.

The only doctrine that Congress may fairly be said to have contemplated as a limitation by way of estoppel on the statutory right of caveat, which is set forth without qualification for all parties in interest, is that provided by the general law of estoppel; and that requires that the party relying on an act as an estoppel show prejudice therefrom.

There is requisite prejudice and estoppel when a party makes a claim outside the will after taking property under a will to which he would not otherwise have been entitled. And so in Gibson v. Gibson, 53 App.D.C. 380, 292 F. 657 (1923), the court held, in another opinion by Justice Robb, that the principle of Utermehle prevented a husband from both claiming curtesy and at the same time taking an interest under the will that was given to him in lieu of curtesy. This was held to be inequitable, and the husband was required to elect one or the other. But there is no comparable problem of equity and election when the claimant, as here, is entitled to the property taken under the will even if he succeeds in the claim outside and against the will.

It cannot be said that there is any inherent inequity in a relative's seeking to break a will when she has taken under the will. Her claim is that the deceased intended to provide amply for her and that this was thwarted by the intervention of say, undue influence or failure of capacity.7

This brings us, finally, to appellee's claim that estoppel may be avoided only if there has been a prior proffer of the item received. The requirement of proffer is not unqualified but calls for application in the interest of justice. In Maryland, whose rulings are paid particular heed in trust and estate questions, the court put it that it is "only in the event that his contemplated attack upon the will would be successful that there would be any occasion for him to refund the legacy paid to him by the executor."8 There may be other considerations of justice bearing on the tender problem.9 We do not pursue the problem. It suffices that the lack of proffer prior to suit is not an absolute bar, and that whether and on what terms a proffer should be required was not in this case considered by the District Court.

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The voice of our dissenting colleague prompts us to ponder further on this case. We are not troubled by the accusation that stare decisis has been scuttled. Our opinion reflects an attentive regard to precedent-appreciative of statements in estoppel opinions that focus on inconsistency, but appreciative, too, that these cannot be taken broadside without regard to accompanying facts and statements, reflecting the settled principle that estoppel requires prejudice wrought by detrimental reliance.

What we are concerned with in this epilogue is whether some sensitive nerve of justice would be rightly pained by reversal in this case. Is the "inconsistency" of a beneficiary in and of itself an affront to Justice? Should this court go beyond the actual decisis of precedent, and fashion estoppel in law out of inconsistency even in the absence of detrimental reliance or like prejudice? On occasion we have scrapped an historic rule that appears inadequate to modern conditions. E.g., Hatch v. Riggs National Bank, 124 U.S.App.D.C. 105, 361 F.2d 559 (1966). Here, however, it would run contrary to the needs of today to scrap the historic requirement of prejudice so as to make inconsistency alone a legal barrier. The rule that once prohibited a litigating party from asserting inconsistent claims in the same pleading has been relegated to the dustbin of legal history, along with the nice distinctions of the common law forms of action. The Supreme Court has brushed aside those doctrines in which inconsistency of position had come to be viewed as a bar. See Lear, Inc. v. Adkins, 395 U.S. 653, 89 S. Ct. 1902, 23 L. Ed. 2d 610 (1969). In the case before us, there is no shred of waiver, all rights having been painstakingly preserved, nor is there pursuit of relief and remedies that are inconsistent.

In this case the interest of justice is furthered by our attentive regard to precedent, and to principle both settled and sound; and these may not rightly be subordinated to symmetry simpliciter. Our ruling retains estoppel in case of detrimental reliance or like injustice. We are confident that the District Court on remand will be fully alert to the principle of justice reflected in the settled doctrine applied in our ruling.

Reversed and remanded for further proceedings not inconsistent with this opinion.

I cannot concur in an opinion that elevates to the dignity of legal dogma the facetious vaunt, "Heads I win-Tails you lose." Again the majority flouts what was known among the ancients as "stare decisis"1 (the nature of that doctrine is now imperfectly understood and possibly incapable of definition with the vocabulary that remains to us).

Craftily recognizing which side her bread is caviared on, our appellant skillfully acclaims by seizure those provisions of the now challenged will which provided largess to her and having exhausted available advantages and benefits she now brazenly challenges the validity of the very document whose terms she utilized to her own benefit. This subordination of veracity is, or course, carried out without any distasteful return to the estate of the assets she has received and utilized. My brethren, whose sincerity I do not question (to the pure all things are pure), with more feeling for a piquant image than for objective facts see in this situation the conduct of a dove rather than an albatross. To make a paradigm of appellant's greed, at the possible expense of other named beneficiaries of testator's declared intentions, is for me the jettisoning of virtually all the historically proven cases teaching that the seeker of justice must be a doer of justice. Our opinions through this century, presumably at least, recount a record of injustices put right by our legal objectivity but my brethren's majority opinion causes my admiration of our accomplishments to melt into suspicion. Current popular recognition of a code of minimorals is strengthened by today's ruling, since the court vaults the bounds of fairness principles and will undoubtedly shock the conscience of legal scholars. To validate appellant's unconscionable chicanery upon the basis assigned by the majority certainly requires the most novel reasoning since Lewis Carroll.2

More distressing than the immediate impact of this majority opinion on the fortunes of those immediately involved herein, however, is the ease with which the court again narcotizes the earlier opinions which I naively thought had established and defined the law governing factual situations akin to our present record. Perhaps by today's and tomorrow's standards these are normal times and the majesty of the law is to be built upon an ever-changing proliferation of untested and unproved panaceas. The stream of time has washed away the dissoluble fabric of many other disciplines, but if it is to flood away from the courts the integrity of the law as a science producing certain rules of decision, then appellate courts will be reviewing by ambush. No doubt respect for the established tenets of the law is regarded as an idolizing of meaningless ancient landmarks by those who in their search for utopia cultivate the preposterous. It is a tired truth that courts' opinions seriatim and subjectively working towards the "GREAT WHEN" end not on a note of exhaustion but of exasperation.3 Such brave but legally limpid judicial excursions are alternately blessed, then tarnished, then cursed. Although change is today's great constant, legal wanderings far from the solid foundations of objective interpretations of governing case law edge precariously close to an outright abandonment of the basic principle that ours is a government of laws and not of men. Although the belief that the basic provisions of our law established a predictable cornerstone upon which is built the judicial machinery apparently went out with McGuffey's readers, the hard fact remains that this so-called creative law has not established a track record for lasting solutions of mankind's day-to-day legal problems. Undiscouraged, however, my brethren bravely pursue their uncharted voyage into THE LAND OF TRY AGAIN.

I write these words, not as a jeremiad, but in the belief that unless the courts adhere to the guidance of fixed principles, we will soon bring objective law to its sepulcher.