Vicksburg weekly herald. (Vicksburg, Miss.) 1868-1883, 1877-07-06

charges that fund with the expenses II
me trust and rendered accounts toe the
Court ~ which the fund is thus treated,
ana toOk his commissions out OF u, and be.
contracted In writing with the resldnAFy
iegatees 70 accept payment Of a demand
~ hls y taVor against the ~testatOr, out
81 We Feslauafy fund, and In making this
contract recognized the residuarv Iegatees.
IS entitled 70 said excess.
These acts severaliy ahd combined fall
snort Of being an eatOppel, because nO-ghe
matter Inherently from what be otherwise
would have done,
A man may cOntrovert his admissions
and his acts so long as doing 30 viii not
cause injury 10 SEINE one who has been H..
duced on the faith OF such admissions or
acts TO do what otherwise he would not
have done, and who will be injured BY per.
hitting such admissions and acts 10 be
questioned.
II there has been no alteration n the DO
siti0n Of another and no harm done BIZ the
acts OF one, such acts do not constitute an
estoppel whatever weight may attach TO
them as evidence. Injury TO others whose
conduct has been Influenced by the, act or
admission as the result Of such conduct so
induced is q necessary element without
which an est0ppel will not arise. Her-
mans Law OF Estoppel, S323, ct seq.
There must be wrong coupled with an
Injury that lie the legal result Of the wrong.
lib. $50.
Unless the act or admission has been the
inducement TO q course Of action which
would result 10 q loss II appellant were
permitted TO change his position and EN-.
force the right which he seemed virtually
to waive by bis acts as enumerated, they
do not amount 10 an %estoppel, ID. 1927.
Turner VS.. Waldo, 40 Vermont, 81.
Hunley vs.. Hunlcy, Is Ala, Of IJd G96.
Whitaker vs.. Williams, 20 Conn, 96.
Wallis We. Truesdale, Q Pick, 4j5.
Greenl. Evidence, 500.
II may be affirmed with confidence that
no Injury has resulted or can resrlt TO any
one from any course Of action induced by
any act Of appellant. The in%ventorying
obligation OF Montgomery q Sons; the
recognition that the whole fund was dis.
posed Of by the will; the receipt Of com.
missions; the receipt and payment Of In
terest on legacies, treating the whole fund
as assets, charging 1t with expenses and
rendering a~ccOunts,ar all acts quite indie.
pendent Of the legAtees and wanting in
that essential element OF estoppel
that the conduct must have been
such that others should act on II,
NDlkApW va b1tVHHGA nONt Nh NEAl AN III
that other equally necessary element, that
Others must have been induced to act up.
on u and that Injury will result from such
action, thus s~uperlnduced, II an estOppel
shall not be held to arise. There was no
intention that any one should act upOn
any Of these things. The inventory was
required by law and properly embraced
the obligation Of Montgomery & Sons,
which was payable to Joseph Il. Davis; the
declaration by the executors that the
whole fund was disposed Of by the
will was but an opinion, and the
resolution to charge debts and ex.
penses on the excess OF the fund
after payment Of legacies was but the ut
terance Of an intention to pay these
things from this particular source; the re-
ceipt Of commissions and the receipt OF
interest as guardian for the children, and
the payment Of interest to other legatees
were but In accordance with law, aud pos.
sess none Of the elements OF an %estoppel,
and so Of rendering accounts to the Court,
These things did not induce any course
Of conduct as their legal results which re,
quires that appellant shall be held 20 the
waiver OF his rights in order to prevent In,
JlTy TO those thus pursuing such course
Of conduct.
There has not been an alteration Of The
position OF any one to his injury Ii eOnse,
qlence Of these acts OF appellant. IfnOnC
OF these things had occurred, the rights
and the position Of all concerned would
have been the same as they are now,
The contract made by appellant with
the residuary legatees lacks an ~essentia
element Of estoPpel in tina II in no way
injured the legatees. That excess be,
longed TO appellant, and under the resolu
ton OF tue executors had been devoted tC
debts and expenses which will consume
II. The contract amounted to an agree,
ment by the r%esiduaTy legatees to recog,
nize APPELLANTS claim, so far as to consent
for It to be paid out OF the interest accru.
Ing on the debt OF Montgomery & Sons, Of.
ter payment Of taxes, general debts,
expenses OF administration, interest on
the leoacles ctargeable on that fund,
and on the part OF appellant Il was
an agreement TO accept payment Of his
$lO,O 900 demand II there was anything lef
out OF his own, but which he had, up u
that time treated and permitted to be
treated as the properly Of the estate. This
contract had no reference TO anything but
the $4,000 claim, nothing else was in the
contemplation OF the parties. Appellant
has not received anything under IL.
Walker b Walker, 0 Wall, I4J. Undoubt.
eddy there is much In the conduct Of an.
pellant before exhibiting his bill which is
inconsistent with his present attitude as a
complainant, but we fail to had In II an
estGppel 10 maintain his suit.
II Is not for us TO find an explanation OF
the reas0ns for the course OF the appellant
In Withholding his assertion Of his right
as he did, and proceeding with his duties as
Executor In a manner 70 signify that he
waived HE individual rights. As his con.
duct does not amount to an estoppel, Il IL
to be considered only as evidence against
the claim set upin his bill; but as We have
seen the evidence Of the right Of appellant
TO claim that part Of the obligation OF
Montgomery and Sons representing the
value OF "Brierfield" Is entirely satisfac.
tory and far outweighs the negative tes-
timOny arising from tie passiveness OF
appellant as 10 his claim and his act In
dealing with the estate.
1t is evident that appellant hesitated
to assert his claim, remained silent
about 1t, and 30 acted as TO negative the
idea that he had any, but because Of this
alone he Is not precluded from changing
his purpose. LangdOn vs.. Dow, 10 Allen,
1888.
tits probable appellant had deliberately
resOlVe6tO submit In silence 70 the dispO.
sitiOn OF the will, and TO surrender his
own claim from considerations Of dellcacy
or prudence, but a locus pOenitentiUe exist.
ed so long as he could change his course
without being charged with having misled
anyone concerned TO his prejudice by such
former course.
We are unable TO see that appellant was
advantaged or any party in Interest was
injured by ans thing said or done by ap-