connecting the two highways; that the respondent owned and resided upon land between the highways, with no access to either without crossing private property of other persons; that the road so petitioned for by the respondent connects the two highways running east and west; that the board refused to lay out the proposed highway, and the respondent appealed to the district court, and the action of the board was reversed, and the highway ordered to be laid out and established; that the town appealed from such decision to this court, and it was affirmed (Anderson v. Supervisors of Town of San Francisco, 92 Minn. 57, 99 N. W. 420), and the highway accordingly laid out; and, further, that there was no change in conditions between the laying out of the highway by the board pursuant to such action of the court and the vacation thereof by the board, except a cartway had been laid out from the road on the north to the northwest corner of the respondent's land. The evidence also tended to show the topography of the township, the location of all existing highways, schoolhouses, public buildings, and market places, the probable cost of opening the highway in question for public travel, and the necessity and public utility thereof. Some of the evidence was conflicting, but upon a consideration of the whole thereof we are of the opinion that it was sufficient to sustain the finding of the jury.

2. Error is assigned in the rulings of the trial judge as to the admission of evidence. The rulings complained of sustained respondent's objections to a number of questions propounded to a witness, all of which were to the effect whether certain persons and certain classes of persons would use the road or have occasion to pass over it. The rulings were correct, for the questions, in effect, called for the opinion of the witness whether such persons would or would not use the highway; that is, his opinion as to its utility. It would have been competent to have interrogated the witness as to the location of all existing highways of the town, and where the persons and classes referred to resided with reference to all such highways, including the one in question. The jury, with such evidence before it, could draw therefrom, quite as well as the witness, the conclusion whether such persons would have occasion to use the highway in question. For the same reason the trial court correctly sustained an objection to a question as to how many persons would be benefited by the road if it was opened. And for a like reason it was technical error for the court to overrule appellant's objection to a question whether the opening of the road would afford facilities to the travelling public for crossing from one side of a creek, over which the road was laid, to the other side; but it was harmless error, for it conclusively appeared from the evidence, particularly from a map of the town, that such would be the case.

3. The appellant also urges that the trial judge erred in his instructions to the jury, and specifies the alleged errors. The charge of the jury, considered as a whole, was fair, and we find no reversible errors therein.

Order affirmed.

IDA AHO v. REPUBLIC IRON & STEEL COMPANY.1

May 22, 1908.

Nos. 15,654-(62).

Fraudulent Settlement by Administrator-Action by Administratrix. A. was killed by the alleged negligence of the defendant. J. was appointed administrator of his estate, and made an alleged fraudulent settlement with the defendant of the cause of action against it, given by the statute for the benefit of the widow and children of the deceased, and delivered to it a release thereof. Two days thereafter the probate court made an order, which has not been set aside, approving and confirming the settlement and release. The widow, for herself and children, commenced an action against J. and the defendant, which was dismissed without a trial on the merits, to recover damages claimed to have been sustained by them by reason of such fraudulent release. The widow, as administratrix de bonis non of A.'s estate, afterwards brought this action to recover damages from the defendant for the death of her intestate, on the ground that it was caused by its negligence. Held that, if the release was fraudulent, neither it nor the commencement of the prior action by the widow is a bar to this action.

Action in the district court for St. Louis county by the administratrix de bonis non of the estate of John Aho, deceased, to recover $1, 999.99 for his death while in the employ of defendant. From an order, Dibell, J., overruling the demurrer of the defendant to plaintiff's reply, defendant appealed. Affirmed.

Washburn, Bailey & Mitchell, for appellant.

Ino. Jenswold, Jr., for respondent.

START, C. J.

This is an appeal from the order of the district court of the county of St. Louis overruling the defendant's demurrer to the reply of the plaintiff. The complaint alleged facts tending to show that plaintiff's intestate was killed by reason of the alleged negligence of the defendant, that the plaintiff is the administratrix of the estate of the deceased, and that he left him surviving a widow and two minor children. The answer put in issue the alleged negligence of the defendant, and alleged, in effect, that Charles Jesmore was duly appointed administrator of the estate of the deceased, and as such settled with the defendant the claim against it, on account of the death of plaintiff's intestate, for $300, and executed and delivered an absolute release thereof, and that two days thereafter a report of the settlement was made to the probate court of the proper county and was approved by such court; that after such settlement was made Jesmore resigned, and plaintiff was appointed administratrix de bonis non; that the plaintiff, as an individual and as guardian of the minor children of herself and her deceased husband, brought an action against Jesmore and the defendant herein to recover damages, on the ground that Jesmore, as administrator, and the defendant, made a fraudulent and collusive settlement of the claim of liability of the defendant for the death of the deceased; and, further, that the action was never brought to trial, but was dismissed. The reply to the defendant's answer herein alleged facts which, if proven, would justify the conclusion that the settlement made by Jesmore, as administrator, and the defendant, was fraudulent. This prior action referred to in the defendant's answer was never tried upon the merits, but was dismissed (see Aho v. Jesmore, 101 Minn. 449, 112 N. W. 538, 10 L. R. A. [N. S.] 998), and this action commenced by the administratrix de bonis non.

Two reasons are here urged by the defendant in support of its demurrer. They are:

1

"First. In the former suit, brought against Jesmore and the defendant in this action, the beneficiaries of the estate of Aho, deceased, elected to ratify the release and settlement made by Jesmore, as administrator of the estate, and to pursue Jesmore for the difference in value between the amount received by him and what he should or would have received if he had acted for the best interests of the estate.

"Second. That the judgment and decree of the probate court, authorizing said settlement, and approving, ratifying, and confirming the same, and the release given thereon, is final and conclusive in this action, and cannot be collaterally assailed."

1. The doctrine of election of remedies is well settled in this state, and is to the effect following: Where a party has a right to choose one of two or more appropriate, but inconsistent, remedies, and with full knowledge of all of the facts and his rights makes a deliberate choice of one of them, he is bound by his election, and is estopped from again electing and resorting to the other remedy. Election of remedies differs from estoppel in its broadest sense in that it need not be shown that the party invoking it will suffer some material disadvantage unless his adversary be required to abide by his election. Pederson v. Christofferson, 97 Minn. 491, 106 N. W. 958. The facts alleged in the answer, and admitted by the reply, do not present a case of election. If a person other than the widow had been appointed administrator de bonis non and had brought this statutory action, it would be apparent that no claim, in reason, could be made that there had been any election of remedies by the plaintiff, for he never had but one remedy or cause of action. The fact that the widow of the deceased was appointed such administrator, instead of a third person, and as such brought this action, does not change the legal aspect of the case in the least. The widow, in her own right and that of her children, could not maintain this action. Aho v. Jesmore, 101 Minn. 449, 112 N. W. 538, 10 L. R. A. (N. S.) 998. Therefore she could not elect to bring it, instead of the one she did bring.

It is true that a release, fairly obtained, for a valuable consideration, from the parties entitled to receive the damages recovered for the death of a person by the wrongful act or neglect of another, is a bar to an action by the personal representative of the deceased. Sykora v. Case Threshing Machine Co., 59 Minn. 130, 60 N. W. 1008. Such, however, is not this case, for the widow and children never received anything, nor did they ever have any right to bring an action against the defendant to recover anything, on account of the death of the husband and father.

Counsel in this connection cites Fowler v. Bowery, 113 N. Y. 450, 21 Ν. Ε. 172, 4 L. R. A. 145, 10 Am. St. 479, Barker v. Barker, 14 Wis. 131, and Carter v. Gibson, 61 Neb. 207, 85 N. W. 45, 52 L. R. A. 468. The first case cited was simply this: E. died, leaving a deposit in the defendant bank, and plaintiff was appointed executor of her will; but the executor of the will of J., her husband, presented the passbook to defendant and received the amount of the deposit. The plaintiff, learning of such payment, brought suit against the executor of J., for the money received by him, and recovered judgment therefor, and, being unable to collect it, brought an action against the bank for the deposit. The court held in the last action that the plaintiff had elected one of two inconsistent remedies which he had, was bound by his election, and could not recover. The second case was the application of the elementary rule that, if a trustee uses the trust funds to buy real estate in his own name, the cestui que trust has an election either to hold the trustee responsible for the money or follow it into the land, but he cannot do both. In the last case relied on it was held, following the familiar rule, that, if a cestui que trust takes judgment against the trustee for the purchase price of trust property wrongfully, conveyed, he thereby ratifies the sale and waives his right to pursue the purchaser. It would seem, for the reason already suggested, that the cases cited are not here in point.

2. This brings us to the question whether the fact that the probate court made its order approving the alleged fraudulent settlement attempted to be made by Jesmore and the defendant is a bar to this action unless the order is set aside in some direct proceeding for that purpose. This question was not involved in the former appeal. Although the order of the probate court was made ex parte and without notice to the widow, yet, if the court had jurisdiction to make an order approving the settlement of the claim against the defendant, it may be conceded, for the purpose of this appeal, that the order could not be attacked collaterally. The probate court in this state has, by virtue of our state constitution (article 6, § 7), "jurisdiction over the estates of