Hardeman v. Ellis

162 Ga. 664 | Ga. | 1926

Lead Opinion

Hines, J.

(After stating the foregoing facts.)

The defendant demurred generally and specially to the petition. ' The general demurrer to the first count was as follows: “ (1) No cause of action is set forth in said petition against this defendant. (2) No judgment for specific performance, as against this defendant, can be had under the allegations of said petition. (3) No property of any kind or character is shown to be in the custody or control of this defendant, nor is Mary Gazalene Lamar Ellis shown, at her death, to own or possess any property of any kind or character, about or upon which a judgment for specific performalice can be based. (4) No bill of particulars is set forth in said petition, showing what property, if any, is in the custody or control of this' defendant, and for which specific performance is prayed:'” The third and fourth grounds of 'this demurrer were sufficiently met by amendment; and as to the first and second grounds, they are covered by cases based upon causes of action very similar to that presented in the petition in this case. In Landrum v. Rivers, 148 Ga. 774 (98 S. E. 477), it was said: “The plaintiff in error submitted a large number of written requests to charge, which the court refused to give, and error is assigned upon the refusal to give in charge these requests. Among them was the following: Tt is not every parol contract which the court will specifically enforce. It will never enforce any parol contract for the sale of land or the making of a will or the testamentary disposition of property, unless the party who is seeking such performance will be defrauded if the contract is not enforced, even if all other elements are shown to exist which would entitle a party to such relief/ The court did not err in refusing to give this charge. This charge is not in harmony with the doctrine laid down in other cases decided by this court, that a contract to make a will will be specifically performed, where the evidence establishes the contract with the requisite degree of certainty, . . and it is shown by the evidence that the party claiming the right to specific performance fulfilled and performed his part of the contract.” See, in this connection, Banks v. Howard, 117 Ga. 94 (43 S. E. 438). In the case of Gordon v. Spellman, 145 Ga. 682 (89 S. E. 749, Ann. Cas. 1918A, 852), the court held such a contract to be valid and enforceable; and further held: “If the promisor in such a case makes a will, which is probated, devising the specific property to another person in violation of the terms of the contract, equity will impress a trust upon the property, which will follow it into the hands of the personal representative or devisee of 'the promisor.” See also Bird v. Trapnell, 147 Ga. 50 (92 S. E. 872). In 28 R. C. L. 64, it is said: “A person may make a valid agreement binding himself legally to make a particular disposition of his property by last will and testament, or not' to alter a particular will already made. An agreement as to the making of a will may be to the effect that the promisee shall receive a child’s portion, or a share as heir.” See also the cases cited in the notes to this text. among which are certain Georgia cases. In Pair v. Pair, 147 Ga. 754 (95 S. E. 295), it was said: “All our decisions are to the effect that the contract, whether one to adopt, with the resulting rights of an heir at law, or one to give the child a share in the estate of the adopting parent, is a contract which when performed by the child creates a status which a court of equity, in a proper proceeding brought by proper parties, has power to declare.”

In the case of Ansley v. Ansley, 154 Ga. 357 (114 S. E. 182), it was said: “A parol obligation by a person to adopt the child of another as his own, accompanied by a virtual though not a statutory adoption, and acted upon by all parties concerned for many years and during the obligor’s life, may be enforced in equity upon the death of the obligor, by decreeing the child entitled as a child to the property of the obligor, undisposed of by will. Civil-Code, § 3016; Crawford v. Wilson, 139 Ga. 654 (78 S. E. 30, 44 L. R. A. (N. S.) 773); Pair v. Pair, 147 Ga. 754 (95 S. E. 295); Richardson v. Cade, 150 Ga. 535, 538 (104 S. E. 207). The rule above announced is applicable where a man and his wife contract jointly to adopt the child of another, and such a contract will bind both the husband and wife severally. Such agreement to adopt a child is, after death of the party who agreed to adopt, enforceable against the sole heir at law, by treating the heir as a trustee and compelling him to convey the property in accordance with the contract; and where the agreement is entire and embraces both real and personal property, and the estate of the decedent is unrepresented and owes no debts, and the heir is in possession of all of such property, it is not necessary, in order to enforce the contract in its entirety, to have an administrator for such estate appointed and made a party defendant to the suit. In such a case, equity, having obtained jurisdiction over the- subject-matter and over the heir for the purpose of enforcing the contract as to the land against him, may enforce the whole of the contract against him. Kent v. Davis, 89 Ga. 151 (15 S. E. 457); ’Belt v. Lazenby, 126 Ga. 767 (5) (56 S. E. 81); Gordon v. Spellman, 148 Ga. 398 (96 S. E. 1006). If the sole heir be dead, such suit may be entertained against his administrator.” And in Belt v. Lazenby, 126 Ga. 767 (5) (56 S. E. 81), it was said: “An agreement to devise, if founded upon sufficient consideration, is, after death of the party who agreed to devise, enforceable against his sole heir at law, by treating the heir as a trustee and compelling him to convey the property in accordance with the contract; and where the agreement is entire and embraces both real and personal property, and the estate of the decedent is unrepresented and owes no debt, and the heir is in possession of all of such property, it is not necessary, in order to enforce the contract in its entirety, to have an administrator for such estate appointed and made a party defendant to the suit. In such a case, equity, having obtained jurisdiction over the subject-matter and over the heir for the purpose of enforcing the contract as to the land against him, may enforce the whole of the contract against him.”

Under a contract like that set out in the petition in this case, equity will impress a trust upon the property, which' will follow it into the hands of the promisor’s personal representative or a sole heir, if in possession, or his heir’s personal representative. These propositions are ruled in substance in one or more of the cases cited above. We do not deem it necessary to deal with the special demurrers to the first count of the petition, inasmuch as the finding for the defendant in error was upon the second count.

Under decisions rendered by this court, certain of which are cited in dealing with the general demurrer to the first count, we are of the opinion that the general demurrer to the second count should also have been overruled. Nor do we think that the second count was open to demurrer upon the ground that it was multifarious and duplicitous, that it sets forth separate and distinct contracts which are sued upon. And while certain matters are set forth in the petition by way of inducement, and touching which evidence might have been introduced without pleading to that effect, nevertheless the refusal of the court to strike those parts is not such error as, to require a reversal. Under the decisions which we have cited above, and similar decisions by this and other courts, the petition as amended was not open to the objections raised by demurrer.

In her answer the defendant, among other defenses, set up the following: “Defendant shows that Mary Gazalene Lamar Ellis died on June 27th, 1922, testate; that plaintiff, William Lee Ellis Jr., was named in the will of the said Mary Gazalene Lamar Ellis as,her executor; that on July 3rd, 1922, plaintiff, the said William Lee Ellis Jr., filed in the court of ordinary of Bibb County, Georgia, his petition offering the will of the said Mary Gazalene Lamar Ellis for probate in common form; that said will was probated in common form, and on August 7th, 1922, letters testamentary were issued to the said William Lee Ellis Jr., the plaintiff, who thereupon, immediately, took charge of said estate as executor; that the said William Lee Ellis Jr., as such executor, continued in charge of said trust from the 7th day of August, 1922, until the 14th day of October, 1924, upon which latter date he tendered his resignation as such executor to the ordinary, and upon this said date he resigned his trust, and this defendant was appointed as administratrix of said estate cum testamento annexo; that immediately thereafter, to wit, on th&--day of October, the said William Lee Ellis Jr., in his individual capacity, filed this suit against this defendant, claiming the entire estate of the said Mary Gazalene Lamar Ellis, under a contract which he avers existed from the date of his birth or shortly thereafter, and to the exclusion of this defendant. Defendant shows that during the period from August 7th, 1922, when he qualified as executor of said estate, until October 14th, 1924, when he resigned his trust as such executor, the said William Lee Ellis Jr. actively performed duties as such executor, expending during this said period of time, as such executor, the sum of $9,226.17. This defendant says that by reason of the acts and doings of the said William Lee Ellis Jr., as in this paragraph set forth, he has by his solemn admission in judicio, in having himself named as executor of the said Mary Gazalene Lamar Ellis, and in acting as such executor as in this paragraph set forth, estopped himself from now, at this time, in this suit, undertaking to set up as against this defendant specific performance of the contract here sued on.” To this portion of the answer plaintiff demurred. The court sustained the demurrer and struck this ground of defense. To this judgment the defendant excepted; and this presents for our consideration and decision the question whether the plaintiff was estopped from bringing the present suit, by reason of the facts set out in the portion of the answer thus stricken on demurrer.

Trustees and other representatives are estopped- from, setting up title adverse to their trust. Civil Code (1910), § 5739. Where a married woman applied to the court to have a man appointed trustee of certain slaves as her separate estate, and the court passed an order appointing him, and he accepted the trust and took possession of the property, such trustee, when sued by the cestui que trust, was held estopped from denying the trust and setting up title in the woman’s husband in order to escape accounting to her for certain of such slaves. Duncan v. Bryan, 11 Ga. 63. Where a guardian had been appointed for two orphan children, and had made and returned to the court of ordinary a schedule of their property, in which a certain slave was included as a part of their estate, and was hired out as their property, and annual returns thereof made to the court of ordinary for ten consecutive years by such guardian, it was held in a suit by one of the orphans, after her marriage, for her share of said slave and his hire, against such guardian, that he was estopped, on grounds of public policy and good faith, from denying the title of the orphans to the slave in question, and showing an independent title in himself anterior to his appointment as guardian. Scott v. Haddock, 11 Ga. 258. Where an executor got possession of property by virtue of his office, his possession was the possession of the estate, and title in the executor could not be set off against his successor, in a suit for the property. Benjamin v. Gill, 45 Ga. 110. Where a deed, prior to the married woman’s act of 1866, was made to a husband as trustee for his wife, which contained no words creating a separate estate, but he accepted the office of trustee, received the property as trustee, and treated and acknowledged it to be trust property during his wife’s life, it was held, in a suit by the wife against the legal representative of the husband after his death, for such property, that the husband and his representative were estopped from denying the title of the wife to such property. Mounger v. Duke, 53 Ga. 277; Evans v. Bethune, 99 Ga. 582 (27 S. E. 277). Where a father, after the death of his wife, was appointed, on his application, trustee to hold certain real estate in trust for his children, and accepted the trust, and continued to act as such trustee for several years, when he filed a bill setting up that this property was in fact his, this court held that if he knew the terms of the deed to the successor trustee, and accepted the trust knowing that the deed’was to the children after the wife’s death, he was es-topped from setting up title in himself. Allen v. Solomon, 54 Ga. 483. A will devised land to certain children. Their father became executor and died. The mother and one of the children became administrators de bonis non, with the will annexed, but were subsequently discharged and another appointed. The latter brought suit against the mother and the child, who were in possession, to recover this property. This court held that the mother and the child were estopped from denying the title of the testator or the title conveyed by the will. Smith v. Sutton, 74 Ga. 528.

Where one is in a situation in which he may elect between two inconsistent positions or proceedings, the choice of his position or proceeding must be made before bringing suit. He can not bring either action without selecting and determining to accept and occupy a position consistent with that action or position and inconsistent with the other. If with knowledge he chooses the position he will occupy, it would be trifling with the court to allow a change. Since the choice is made and one of the alternative positions or proceedings has been adopted, the act operates at once as a bar to the other and the bar is final and absolute. Bacon v. Moody, 117 Ga. 207 (43 S. E. 482); Board of Education v. Day, 128 Ga. 156 (57 S. E. 359); Kennedy v. Manry, 6 Ga. App. 816 (66 S. E. 29). The testatrix died on June 27, 1922. Plaintiff was named in her will as her executor. On July 3, 1922, plaintiff filed in the court of ordinary his petition offering the will for probate in common form. It was so probated on August 7, 1922. Plaintiff on the day of probate qualified as executor by taking the oath required of every executor (Civil Code (1910), § 3887), and letters testamentary were issued to him. As such executor he immediately took possession and charge of the estate of the testatrix. He continued in charge of the estate from August 7, 1922, to October 14, 1924. He actively performed the duties of such office, and during said period expended as such executor the sum of $9,226.17 of the assets of the testatrix. By probating the will of testatrix, which disposed of a large estate, and by qualifying as her executor to dispose of the same in accordance with her directions contained therein, plaintiff in effect represented to the court of ordinary that testatrix died seized and possessed of an estate which she had undertaken to dispose of by her will. By qualifying as her executor he became bound to administer her estate in conformity to directions given in her will. At the time he probated her will and qualified as her executor he was fully aware of his rights under the contracts with her and her husband which he seeks to have specifically performed in the present proceeding. He was fully aware that if said contracts were in fact made and were specifically performed, the testatrix had no estate of which she could dispose by will. Under these circumstances the plaintiff was put to his election of rights, positions and proceedings. He had to make choice of rights, proceedings and positions. He had to choose between probating the will, accepting the office of executor, of executing the will and of accepting the benefits accruing to him under this instrument, and the rights accruing to him under the enforcement of said contracts. These positions were inconsistent. His election to proceed under the will concludes him from undertaking to have these contracts enforced. So we are of the opinion that the plaintiff, in determining to probate this will, in qualifying as executor and in executing the same in part, became estopped, “upon grounds of public policy and good faith,” from asserting his rights under the contracts sought to be enforced' in this case.

Able counsel for the plaintiff insist that the above facts could only be effective as an estoppel while the plaintiff kept possession of the estate as executor, and that they ceased to operate as an estoppel when he resigned and turned over the estate to his successor in the trust for administration. Undoubtedly a tenant can not dispute his landlord’s title while in possession. Counsel analogize the position of an executor to that of a tenant. Civil Code (1910), § 3698. A tenant can buy title and assert it after surrendering possession. Williams v. Garrison, 29 Ga. 503. If after the expiration of his term, the tenant desires to contest the title of his landlord, he must surrender the possession acquired from his landlord. Grizzard v. Roberts, 110 Ga. 41 (2) (35 S. E. 291). The same principle is applicable to possession by license or purchase. Watters v. Hertz, 135 Ga. 804 (70 S. E. 338). It is undoubtedly true that a trustee is estopped from denying the title of the person for whose use he holds. Smith v. Sutton, 74 Ga. 528(2). Where the estoppel rests solely upon the fact of possession of the trustee, it may be that it would cease to operate where the trustee surrendered to his cestui que trust the possession of the property involved; but the estoppel asserted in this case does not rest alone upon the possession of the executor but upon other facts which create the estoppel. It is next insisted by counsel for plaintiff that estoppels must be mutual, that the judgment probating'this will in common form did not bind other persons interested in the will, that the estoppel was not mutual, that the same could not be taken advantage of by strangers, that other legatees and parties interested in the will did not in any way act or change their condition upon the admission made by the executor in probating the will in common form. In support of these contentions, counsel rely upon certain cases to which we shall briefly allude. In Bryan v. Duncan, 11 Ga. 67, this court held that a trustee could purchase from his cestui que trust, who was sui juris, the trust property and the outstanding claim of another to the property, where there was no fraud, concealment, or advantage taken of the beneficiary by the trustee. In Gaither v. Gaither, 23 Ga. 521, an estoppel by judgment and admission of the executrix, arising from the probate of the will in common form, was invoked to bar the executrix as heir at law of the testator from seeking to set aside the probate in common form, and to have the instrument which purported to be the last will of the testator declared null and void because obtained by duress. This court properly held in that ease that the testatrix was not estopped by that judgment, because it was not binding upon the other legatees, and that for that reason the estoppel was not mutual. This court further held that the executrix was not es-topped by her admission that the instrument probated in common form was the will of the testator, because the other legatees had in no way acted upon this admission or changed their condition. That ease differs from the one now at bar, for the reason that the estoppel set up in the case under consideration did not rest solely upon the judgment of the court probating the will in common form, nor upon the implied admission of the executor arising from its probate in common form that it was the will of the testator. The estoppel set up in the case under consideration arises from the inconsistent position taken by the executor. In Board of Education v. Day, supra, this court distinguished an estoppel arising from a representation or admission and an estoppel arising from the election of inconsistent remedies or inconsistent rights. Speaking of an estoppel arising from the election of inconsistent remedies or rights, this court said: “Some of the cases which adhere to this latter view deal with the question as if it were one of estoppel in pais between parties to a transaction, and treat the bringing of the first suit as if it were only a representation or admission, and seem to think that there must be a superadded element of change in condition, or action in reliance on it, to prevent the plaintiff from dismissing his suit and asserting an inconsistent remedial right. To us this appears to be too restricted a view. Unquestionably a person may estop himself in this as in other matters by misleading another to his injury or causing such other to change his situation. But the doctrine of election of inconsistent remedies or inconsistent remedial rights rests on a broader basis.”

In Fulcher v. Mandell, 83 Ga. 715 (10 S. E. 583), this court ruled that the fact that the administrator had alleged in his inventory and returns that certain assets belonged to the estate did not estop him from showing that his intestate inherited the property from his wife subject to her debt to the administrator individually. Here there was no inconsistency between the positions taken by the administrator. In Harris v. Woodard, 133 Ga. 104 (65 S. E. 350), it was held that an executor as such was not estopped to attack the validity of a judgment which was sought to be enforced against the property of the estate, by admissions in reference to such judgment made by him in a suit which he, in his individual capacity, had brought against the judgment creditor. It was likewise held that he would not be thus estopped if such judicial proceeding had been brought by him in his representative capacity, when the estate derived no benefit and the judgment creditor no injury in consequence of such admissions. In Williams v. Wheaton, 86 Ga. 333 (13 S. E. 634), the wife took the husband’s money, bought land with it, and instead of having the vendor make title to her husband, caused the vendor to make an absolute deed to a third person for the purpose of securing a loan. The wife had one son by a former marriage. The son and husband were her sole heirs at law. The husband was appointed her administrator. He brought suit against the vendee and the son, in which he sought to enforce an implied trust in his favor by reason of the fact that his money had paid for the land. It was held that the mere fact of his appointment as administrator did not prevent his setting up the implied trust. In that case the husband had not treated the property as the property of his wife. MacDougall v. National Bank of Columbus, 150 Ga. 579 (104 S. E. 630), Copelan v. Monfort, 153 Ga. 558 (113 S. E. 514), and McFadden v. Dale, 155 Ga. 256 (116 S. E. 596), were cases which involved the right of an executor to sue his coexecutors to enforce claims against the estate. In Bussey v. Bussey, 157 Ga. 648 (121 S. E. 821), a son probated the will of his father, was appointed executor, and took possession of the land in dispute. The executor afterwards resigned and took a deed from his mother to the land in his possession. In that case it was held that the plaintiffs, having no title, could not recover against the executor in his individual capacity, upon the ground that he was estopped from asserting title to the land in question by reason of the fact that he took possession of it as executor, this court holding that estoppel did not convey title and could only be asserted defensively to prevent a recovery. That case is clearly distinguishable from the case at bar.

So we are of the opinion that the facts set up in that portion of the answer of the defendant, which was stricken by the court, created an estoppel by election, and that the court below erred in' sustaining the demurrer of the plaintiff thereto and in striking that portion of the answer of the defendant. For this reason a new trial must be granted.

We shall in this place dispose of the motion to suppress the interrogatories upon the grounds stated, although the same questions are made in the motion for a new trial, which was overruled, and it will not be necessary to refer to the objection to this testimony in the part of the opinion dealing with the motion for new trial. The objections to the interrogatories and the grounds upon which the motion to suppress were based may be taken in groups. The proceeding to perpetuate the testimony of the witness Ellen W. Bellamy was under section 4560 of the Civil Code, hereinbefore quoted. The first four grounds of the motion to suppress make the point that the answers to these interrogatories can not be used, because the suit as filed was against only one of those named as probably interested, and not against all; for the legatees “and 'devisees were not sued. We do not think this objection to the interrogatories is meritorious. The code section to which we have just referred requires the application to the judge of the superior court, among other things, to state the names of “the parties probably interested on the other side.” We do not think it is necessary, in order to make this application and the interrogatories taken under the provisions of this section available, that suit should be brought against all of the parties named as being probably interested. If the party against whom the suit is actually brought, and who is actually interested in the suit, and who is properly made a party defendant, is named, that is sufficient. The very use of the expression “probably interested” indicates that if the applicant for the order to take the evidence under the interrogatories should be mistaken as to some of the parties, it would not be necessary to include them as defendants in case the applicant for the order should afterwards ascertain that they were not necessary parties.

In several of the grounds of the motion to suppress the interrogatories it is alleged that the parties were not served with process or notice, and that no process was prayed for or issued. We do not think this was necessary. The statute does not require it. Under other provisions in the code the depositions of a witness can be taken simply by giving written notice to the opposite party. It is not contemplated by the statute that the opposite party should have an opportunity to answer the application, or demur to it, or show cause why it should not be granted. We do not think that the right to take testimony is analogous to a suit wherein the rights of parties to property are put in issue and are litigated and determined. As a general proposition, it may be said that a party is not required to litigate the question as to whether he should be allowed to take the testimony of a witness. Notice is given under the provisions of the law, so that the opposite party may file cross-interrogatories, may sift the witness as he would on cross-examination in court, and, in certain cases, make objections to interrogatories that are open to objection. The defendant in this case had notice given in accordance with the provisions of the code section above referred to. Counsel for defendant contend that the act of 1856 (Acts 1855-6, p. 141) was the law up to the time code section 4560 was adopted, and that the omission of a part of an act from the Code did not repeal the portion omitted, if nothing in the Code conflicted with it. Under the act of 1856 the commission could not issue until after five days notice; the words of the statute as originally passed b.eing, “which commission is not to issue, however, until the applicant has given the opposite party five days notice and served him with a copy of the interrogatories filed in the clerk’s office as aforesaid,” etc. The provision quoted as to notice was omitted by the codifiers. But the Code containing the provision as codified was adopted by the legislature, and we think that the effect of adopting the Code was to enact into one statute all the provisions of the law intended to be continued in effect upon this subject. The statute under which these proceedings were instituted contains all the law upon that immediate subject. Central of Ga. Ry. Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. B. A. 518); Atkinson v. Swords, 11 Ga. App. 167 (74 S. E. 1093). “Where the later of two acts covers the whole subject-matter of the earlier one, not purporting to amend it, and plainly shows that it was intended to be a substitute for the earlier act, such later act will operate as a repeal of the earlier one though the two are not repugnant.” Thornton v. State, 5 Ga. App. 397 (63 S. E. 301). The provision in the act of 1856 quoted above was repealed by section 4560. That act required five days notice before issuance of the order. The Code requires that notice be provided in the order. The two provisions are in conflict; but the code section covers the entire subject, giving the right to the order and providing the kind of notice to be given.

The motion with which we are dealing also raised the objection to the interrogatories that legal notice was not given to the opposite parties. Section 4560 of the Code, under which the proceedings to perpetuate testimony were instituted, contains, among others, the provision that the written application to the judge for the order requiring some disinterested attorney of the court to act as commissioner, etc., shall be accompanied with the written interrogatories to be propounded to the witness, etc., and the judge shall, when the requirements of the statute are complied with, pass the order requiring a disinterested attorney of the court to act as commissioner and take such testimony, and that the judge shall provide “in such order for the most effectual notice to the opposite parties.” The' judge in the order passed in this case did provide for notice by providing for publication of the notice. But his order also provided that “notice of intention to take testimony be served upon Mrs. G-azalene M. Hardeman, and that such notice be published in the Macon Telegraph one time, on the 19th day of July, 1924.” The testimony was to be taken on Wednesday, July 23d. The petition and order were served on Mrs. Hardeman on July 18, 1924; for counsel acknowledged due and legal service of the petition and order, and waived “all other and further service and copy.” There was some variance between the notice published in the Macon Telegraph and the order granted by the judge. If these variances could have been material had the published notice been the only notice given Mrs. Hardeman, we do not think they are material in view of the fact that Mrs. Hardeman was served and acknowledged service by her counsel of the application and order as granted by the judge. She was the only party defendant, and she had notice, which the judge evidently deemed reasonable and effectual; and there does not appear to have been any abuse of his discretion in the matter.

One ground of the motion with which we are dealing alleges that the notice published does not state where the commissioner resides. The Code does not require that the notice should state the residence of the commissioner. The statute provides that the judge shall pass an order requiring some disinterested attorney of the court to act as commissioner, etc. In the order attacked in this motion it is provided that “Robt. L. Anderson, a disinterested attorney of the court,” should act as commissioner, and we deem this sufficient.

The rulings made in the 9th and 10th headnotes need not be elaborated.

There are numerous grounds of the motion to suppress the interrogatories, based upon the contention that when the application was made to take the testimony the applicant could, at that time, have commenced suit. This objection appears in one form or another in grounds 5, 6, 7, 8, 9, 23, and 24. In the application it is stated that it is the intention of the applicant to institute in the superior court of said county a suit against the administrator with the will annexed of Mrs. Gazalene Ellis and the legatees and devisees under her will, to recover the property which belonged to the said Mrs. Ellis before her death. It is further stated that the applicant has been the executor under said will, but has resigned as such executor, naming' Mrs. Gazalene M. Hardeman as a person qualified and willing to accept the trust; that applicant can not now commence said suit, for the reason that the administratrix with the will annexed has not yet been appointed. The statements just quoted, made in the application, were true as a matter of fact; and we think that they showed sufficient reason for perpetuating this testimony. Section 4560 of the Civil Code in part reads as follows: “If any person desires to perpetuate the testimony of a witness, in anticipation of litigation not yet pending, and which it is not in his power to commence, he may make written application to the judge,” etc.; and the point is made that the condition upon which the application can be made under the provisions of this section did not exist, for the reason that when the application was made to take the testimony the applicant could, at that time, have commenced this suit; that it was within his power to commence a suit against the proper and necessary parties, in which said suit all the rights of the applicant, both legal and equitable, as disclosed by his application, could have been fully protected. We can 'not agree with the contention made in these grounds of the motion to suppress. Conceding that it was within the power of the applicant to commence his suit against the devisees and the legatees, or that he might have commenced a suit against himself as executor,' which alleged right is not entirely free from doubt, he could not be forced to adopt a proceeding against numerous legatees and devisees — for they were numerous, and some of them non-residents, and some minors, — because a proceeding against these numerous defendants and classes of defendants would have subjected him to the risk of omitting some party that should be named as a defendant to the suit, of failing to give effectual notice, or to other risk, which will at once occur to one considering the situation. Nor could he be compelled to substitute a suit against himself for a suit against the administrator cum testamento annexo; because the right of a sole executor to sue for and claim in his own right the entire estate of his testator and make no other party defendant to contest such a claim save himself, would be one that might be challenged upon legal, equitable, and ethical grounds. Under the facts appearing in the proceeding to perpetuate the testimony the plaintiff could not then bring the suit which he has elected to bring, a suit in which all of the rights of the plaintiff and the estate of Mrs. Ellis can be fully settled, protected, and decided; and consequently the court did not err in overruling the grounds of exception to the interrogatories referred to in this division of the opinion.

We can not agree with the contention of counsel for plaintiff in error that section 4560 of the Civil Code, relating to the application and order for the perpetuation of testimony, is unconstitutional and void upon the ground that it is in violation of the due-process clause of the State and Federal constitutions, in that all proceedings under that code section specified as necessary to be had in perpetuating testimony are entirely ex parte; that the code section nowhere provides for notice of any kind upon parties probably interested upon the other side to that of the applicant, so that the opposite parties might show cause, if any they had, why the prayers of the application should not be denied; that under that code section interested parties have no voice in the application; and that no service of notice of any kind upon opposite parties is provided in the section, and no voice is given to them in the naming of the commissioner, and no opportunity is presented to such interested parties to plead to the application. • The section does provide for notice to the opposite parties, and they have opportunity to file cross-interrogatories before the testimony is taken. The object of the application to perpetuate testimony is the procurement of an order appointing a commissioner who shall take the testimony. While this testimony may bear upon the question of property rights, the proceeding does not determine property rights. It merely gives opportunity to take evidence bearing upon the question of those rights, and the opposite parties to the applicant have opportunity, under the provisions of the section under criticism, to file cross-interrogatories, by which they may elicit any testimony that the witness may be able to give and that the parties filing the cross-interrogatories may desire.

Being now brought to a consideration of the motion for a new trial, we pretermit for the present a discussion of grounds 1 and 2 (all references by number hereinafter made being to the amended motion for new trial). In ground 3 of the motion it is complained that the verdict is contrary to the evidence, lor that there is nothing in the evidence, as movant contends, showing me value vof the property claimed, nor the value and extent of the services, so that it can be determined whether the services performed constituted an adequate or a grossly inadequate price for the estate of the persons with whom the alleged contract was made; and it can not be determined,'movant contends, in the absence of such essentials, whether the alleged contract was unfair, or unjust, or against good conscience. We do not think that it was essential in this case to introduce evidence to show the value of the property, or the value in money of the services which the plaintiff in this ease rendered or was expected to render, under the terms of the contract. It is true that this is a case of specific performance; and it has been held by this court that, specific performance not being a remedy which either party to the contract can demand as a matter of absolute right, it will not in any given case be granted, unless strictly equitable and just. Kirkland v. Downing, 106 Ga. 530 (32 S. E. 632). “In the absence of allegations in the petition as to the value of the lands, or of the value and extent of the services alleged as the consideration of the contract, it is impossible for a court to determine whether the services performed constituted an adequate or grossly inadequate price for the estate of the person with whom the alleged contract was made; nor could it be determined, in the absence of such essentials, whether the contract was unfair, or unjust, or against good conscience.” Potts v. Mathis, 149 Ga. 367 (100 S. E. 110). These rulings and the code section upon which they are based are urged in the argument of counsel for plaintiff in error; but we do not think that in a case like this, based upon a contract like that shown in the record, for a consideration of services and the performance of duties like those devolving upon plaintiff under the contract, the rulings made in the case last cited are applicable here. The cases of Potts v. Mathis, supra, and Shropshire v. Rainey, 150 Ga. 566 (104 S. E. 414), are, we think, on the facts and principles involved, essentially different from the case at bar. We do not think it necessary to discuss this ground of the motion at greater length. We think the ruling that we have announced is necessarily deducible from decisions already rendered by this court, in which this doctrine is laid down. Certain of those decisions were referred to in the division of this opinion in which we ruled upon the demurrers to the petition. From certain of those decisions we quoted excerpts; it is not necessary to reproduce those here, but we refer again to the cases of Crawford v. Wilson, 139 Ga. 654, Copelan v. Monfort, 153 Ga. 558; Ansley v. Ansley, 154 Ga. 357; Redford v. Lloyd, 147 Ga. 145, and Bird v. Trapnell, 147 Ga. 50. In these cases last cited will be found other decisions cited, upholding the ruling which we have made above. Certain of these eases have also been referred to and quoted from in disposing of the demurrers. Nor are outside authorities wanting to the same effect. What is here said rules the question made by the assignment of error contained in the 14th ground of the motion.

The rulings made in headnotes 15, 16, and 17 require no elaboration.

The court charged the jury in part as follows: “Now the •plaintiff in the second count has this contention: he contends that another contract separate and distinct from that was made between William Lee Ellis, his uncle, Mrs. Gazalene Ellis, his • aunt, and himself, in the City of Macon, at the home of William Lee Ellis Sr., and shortly before the death of his uncle, William Lee Ellis; and that by the terms of this contract, if he, William Lee Ellis Jr., the plaintiff, would agree not to take some position that had been offered him in Baltimore, or somewhere — you can remember from the testimony, but would give up that place or relinquish that position which they contend had been offered to him, and would remain with his aunt, Mrs. Gazalene Ellis, until her death, then in that event, upon the death of Mrs. Gazalene Ellis, he, the plaintiff, William Lee Jr., should receive all the property of both the uncle and the aunt.” This charge is excepted to upon the ground, among others, that the jury were misled as to the true construction of the second count of the petition; that the court here construed the second count of the petition as containing and referring to but one contract or agreement, whereas that count refers to two agreements, to wit, an alleged agreement between the parents of the plaintiff, on the one hand, and William Lee Ellis and Mrs. Gazalene Ellis, plaintiff’s uncle and aunt, on the other; and to a second agreement or contract made by plaintiff with his uncle and aunt. We do not think the charge quoted and here excepted to is open to this criticism; or to the attack on the ground that it was virtually “an instruction to the jury that if plaintiff gave up a position at Baltimore or at any other place, he would have complied with the parts of the contract which related to the giving up of a position;” or to the further criticism, that it “confused the minds of the jury with respect to the pleadings in the case and the evidence in the case.” The extract from the charge last quoted states in part accurately the contentions of the plaintiff as set forth in the second count. The fact that other and further instructions might be necessary to make clear all the contentions of the plaintiff in the second count or in the evidence bearing upon the second count would not render erroneous the portion of the instruction which is here applicable to the issues.

The rulings made in headnotes 19, 20, and 21 need not be elaborated.

The court charged the jury in part as follows: “As to the Baltimore contract — I am referring to the contract alleged to have been made between William Lee Ellis Sr., Mrs. Gazalene Ellis, and William Lee Ellis Jr., in Macon, shortly before William Lee Ellis died; that is, the contention as to the Baltimore contract in the second count — I charge you that you are to determine what, if anything, took place between the parties at the time the contract is alleged to have been made, and whether what took place amounted to a contract. To make a contract there must be a meeting of the minds -of the parties, that is, a common understanding between the parties as to what the agreement was. If you find that there was a conversation between William -Lee Ellis Sr. and his wife and William Lee Ellis Jr., and there was an understanding between them as to the terms of an agreement, and that common understanding was acted upon by the parties, that would amount to a contract. It was not necessary as a matter of law that William Lee Ellis Jr., the plaintiff in the case, should have said anything, if what was said and done amounted to an agreement, which was understood and acted upon by all the parties.” The movant contends that this charge is error, “because no valid contract such as is set up in the petition could be proven by conversations such as are set forth in said charge, and particularly without any distinct statement of promise made by the plaintiff;” and further the movant contends that “a contract such as is here involved could not be proven and a valid and legal understanding could not be reached amounting to a contract in the situation here presented to the jury, and which the jury was instructed would be sufficient to constitute a valid contract.” The charge here excepted to was a proper one, in view of all the issues made in the case and a consideration of the nature of the services to be rendered by the plaintiff and his relationship to the other parties to the contract, if the contract which the plaintiff sets up was actually made.

The rulings made in headnotes 23, 24, and 25 require no elaboration.

The defendant duly presented the following written request to charge: “I charge you that before there can be a recovery by the plaintiff, William Lee Ellis Jr., under the second count of his petition in this case, he must prove to your satisfaction, by a preponderance of the evidence, so clear, so strong, and so satisfactory, as to leave no reasonable doubt on your minds, that a short time before the death of William Lee Ellis Sr., the plaintiff was offered a business opportunity in the City of Baltimore, Maryland, which he agreed to accept; that his aunt, Mrs. William Lee Ellis Sr., upon learning of his contemplated removal from Macon, agreed with plaintiff that if he would not go away from Macon to live, and would remain at home with her as long as she lived, she would, at her death, leave to plaintiff all her property, and that thereupon plaintiff agreed in consideration of these promises of his aunt, Mrs. William Lee Ellis Sr., to give up said business opportunity at Baltimore, and to remain at Macon with her; and that he, the said plaintiff, fully performed said contract on his part, and did give up said business opportunity at Baltimore, and did remain at Macon with his said aunt, Mrs. William Lee Ellis Sr., until her death.” This request to charge the court refused to give; and properly so, we think. One expression in this charge, to wit, “and that thereupon plaintiff agreed in consideration of these promises of his aunt, Mrs. William Lee Ellis Sr., to give up said business opportunity at Baltimore, and to remain at Macon with her,” might have misled -the jury by causing them to believe that an express agreement at the time referred to, upon the part of the plaintiff, was essential to complete the contract; whereas, if the plaintiff did give up the position referred to and there was performance on his part of those things which he was to do and perform in view of the promises, that would have been sufficient in view of the contract.. And moreover, the request to charge contains this expression: “did remain at Macon with his said aunt, Mrs. William Lee Ellis Sr., until her death.” This might have been construed by the jury as requiring the plaintiff to show by evidence that he did continuously remain in Macon until the death of his aunt. The court more properly charged the jury upon this and similar subjects, by instructing them as to what absences from Macon or absences from the home of Mrs. Ellis with her consent and permission would not amount to an abandonment and breach of the contract.

William Lee Ellis Jr., the plaintiff, being on the stand as a witness in his own behalf, had testified that in 1902 he was offered a position in Baltimore, and that if he had accepted this position he would have to move away from Macon; that he did not accept the position; that his uncle had all to do with his failure to accept the position referred to; and then proceeded in that connection to testify further: “When I was offered this position to leave Macon, my uncle did not want me to leave Macon, and he had no one to leave with my aunty, as he knew that nobody else, practically, would live with her; and he prevailed on me, in fact insisted that he did not want me to leave Macon, and it was then and there — he said both Dr. McIIatton and Dr. Winchester had told him that he was in bad shape and would never get well, and it was worrying him. And I came into Macon and told him about this position, and he didn’t want me to accept it; says: ‘I’m getting old, your aunt is old, and she has been in bad health all of her life and nervous, and I want you to live with her here. We want you to live here with us.’ And he told me about taking me from my mother and father, taking me to Christ Church, and at that time my father and mother had nothing to do with it. Mr.Champion, his business partner, was my sponsor or godfather. Then we discussed different things, and he says, ‘Now, I want you to live with your aunty the balance' of her life, as I haven’t got long to live, and I don’t know about her. She has been in bad health; and if you will live with your aunty, when your aunty and I die we’ll leave you what property we have got.- And it was then and there that we decided on not going to Baltimore, and I didn’t accept the position, passed it up. This conversation took place in our house at 531 Georgia Avenue, down next to where Mr. Nat Harris was living, in the sitting-room after supper. I didn’t accept the position in Baltimore, on account of what he had said to me. I agreed with him not to accept a position if it took me away from Macon to live, or any other position that would take me away from Macon, as long as my aunt was living.” Counsel for defendant then and there objected to so much of this testimony as undertook to state what William Lee Ellis Sr. (referred to in the foregoing excerpt as “uncle”) said to witness, the plaintiff in the case, and to so much of the conversation above quoted as undertook to repeat what the witness, William Lee Ellis Jr., said to his uncle, and to so much of the testimony as, in effect, stated that the witness on account of what his uncle said to him agreed not to accept the Baltimore position, if it took the witness away from Macon, as long as his aunt, Mrs. Gazalene Ellis, was living. Counsel for defendant urged the following objections, among others, to this testimony: “That William Lee Ellis Jr. was an incompetent witness to testify as to any conversations between himself and William Lee Ellis Sr., for that under the proof in the case Mrs. Gazalene Lamar Ellis, whose personal representative is a party to this suit, was the transferee of William Lee Ellis Sr. That what William Lee Ellis Sr. said in relation to the matter testified about can not bind Mrs. Gazalene Lamar Ellis nor her estate. That if it be contended that what William Lee Ellis Sr. said bound Mrs. Ellis on the theory that she was present and by her silence adopted all that the said William Lee Ellis Sr. said, then it became a communication between Mrs. Ellis and William Lee Ellis Jr., and she being dead and her legal representative a party to the suit, the plaintiff, William Lee Ellis Jr., as a witness will not be heard to testify as to any such conversations or communications with the deceased party.” The court admitted the evidence over the objections urged, and to this ruling the movant excepted.

We are of the opinion that the court erred in admitting this testimony. The plaintiff was seeking to recover the entire estate of Mrs. Gazalene Ellis, under a contract which he alleged was made by him with Mrs. Ellis and her husband. Was it competent for the plaintiff to testify to transactions and communications had between himself and William Lee Ellis Sr., the effect of proving these transactions and communications being to show that the contract alleged was entered into between the parties? From the report of the case of Hendricks v. Allen, 128 Ga. 181 (57 S. E. 224), it appears that Allen brought suit against the administrator of Locke, deceased, and Hendricks, to compel the administrator to make him a deed to certain lands, and to enjoin Hendricks from foreclosing a mortgage on the land, and to cancel this mortgage. It was alleged in the petition in that case, that in 1890 the petitioner, Allen, applied to Locke for a loan of $135, with which to purchase the land; that Richard Nelson loaned the money “to said Locke for petitioner to purchase the land;” that said land was then purchased (from Kahn and others) for the sum of $135, by petitioner, and a deed was executed to the land in favor of petitioner, according to petitioner’s understanding, and was to be kept in the possession of Locke until petitioner should pay for the loan which Locke had procured from Nelson for petitioner; that the petitioner finished paying Locke the amount due him by petitioner on the loan, about September 1, 1892, and petitioner “then agreed with Locke that he, the said Locke, should continue to keep possession of petitioner’s deed to said land, as petitioner was then indebted to said Locke for a balance due on material that was used by petitioner in building a house on said land and making other improvements thereon. Petitioner finished paying the balance due Locke on said material some time in July, 1893,” but, having confidence in Locke, petitioner allowed said deed, “which he believed was in possession of said Locke,” to remain in his possession, “not knowing that there had never been such a deed in petitioner’s favor.” The petitioner further alleged that a deed to the land in controversy was executed on October 13, 1890, by Kahn and others to Nelson, and that on February 28, 1893, a deed to the same land was executed by Nelson to Locke, which petitioner charged was a fraud on him; and that in 1894 Locke executed to defendant, Hendricks, a mortgage on the land without petitioner’s knowledge or authority, and that same was fraudulent. The case proceeded to trial, and the jury returned a verdict in favor of the plaintiff. Hendricks moved for a new trial upon various grounds. The judgment refusing a new trial was reversed, and in the course of the opinion rendered this court said: “The plaintiff in error complains, in one of the grounds of his motion for a new trial, that the court erred in permitting the plaintiff to testify, in substance, that in 1890 he (plaintiff) borrowed $135 from Nelson to pay Kahn and others for the land in controversy, and that he had since repaid that sum to Nelson. This testimony was objected to on the ground that Nelson was dead and the opposite party to the case was a transferee or assignee of Nelson. Plaintiff in error rests his contention upon the provisions of the Civil Code, § 5269, subsection 1: ‘Where any suit is instituted or defended by a person insane at time of trial, or by an indorsee, assignee, transferee, or by the personal representative of a deceased person, the opposite party shall not be admitted to testify in his own favor against the insane or deceased person.’ The effect of the testimony above referred to, the same relating to a transaction between plaintiff and the deceased Nelson, was to impeach the right of Nelson to convey the property in controversy to Locke. And inasmuch as the administrator of Locke, the assignee or transferee of Nelson, was a party defendant in the case, we think that the court erred in admitting this testimony, over the proper and timely objection of the plaintiff in error.”

Under the facts in that case, considering the relationship of the parties and the witness, what is there said is applicable to the question presented in this case as to the admissibility of the testimony of William Lee Ellis Jr., set forth above. And that becomes more apparent when we consider the allegations in the amendment to the petition, filed on March 10, 1925. That amendment contains, among others, the following allegations: “Petitioner’s foster mother, at the time of her marriage to William Lee Ellis Sr., had no property of her own, and never subsequently acquired any property with her own means. Her husband accumulated all the property which she owned at the time of her death, and had title put in her name with the understanding that all of said property at the death of the survivor of them was to go to ahd become the property of petitioner. William Lee Ellis Sr. died on the 27th day of May, 1902, intestate, leaving as his sole heir-at-law his wife, Mrs. Gazalene Lamar Ellis. He left no debts which have not been paid, and no administration was ever had upon his estate.” In the case of Hendrick v. Daniel, 119 Ga. 358 (46 S. E. 438), it was said: “Following the former decisions of this court, therefore, and giving to the words ‘assignee’ and ‘transferee,’ as used in the code, a literal construction, we are forced to the conclusion that they cover the grantee in a conveyance of land. These words are the broadest that could possibly have been used. A literal construction of either necessarily includes a vendee, grantee, or donee. That such was the meaning intended to be given them by the law-making power we think can easily be established by an application of any or all of the well-known rules for the construction of statutes. The act of 1889 and the amending act of 1893 are both remedial statutes. The evil sought to be cured was that the living took advantage of the dead, the sane of the insane, by giving testimony the power to contradict which was buried in the tomb or obscured by dethroned reason. By the decision of this court in the ease of Woodson v. Jones [92 Ga. 662, 19 S. E. 60], it was brought to the attention of the General Assembly that the act of 1889 failed of its full purpose, and it was accordingly amended by the act of 1893. To use a homely metaphor, by inserting in the law as it stood the word ‘endorsee’ the legislature healed the particular malady pointed out by the decision in the case cited, and then, to guard against a relapse, or the possibility of a similar attack in the future, it inoculated the patient with the words ‘assignee’ and ‘transferee.’ The mischief as it existed prior to the passage of the act of 1889 was plain. That act did not accomplish its full purpose, and so, in 1893, the General Assembly amended it so as to cover all possible cases where the same mischief threatened, and where estates, real, personal, or mixed, of deceased or insane persons might otherwise be obtained or damaged by allowing parties to suits affecting such estates to testify to communications and transactions with such deceased or insane persons. "With the full nature and extent of the evil clearly apparent, we can not believe that the General Assembly intended to protect the estate- of a deceased endorsee of a note against the testimony of the living maker, at the same time allowing it to be wronged by nullifying his warranty deed to a tract of land. On what theory it can be supposed that the General Assembly sought to protect the purchaser of a note and leave unprotected the grantee of a piece of real, estate we are at a loss to conceive.” While it may be that the evidence does not show whether the husband transferred any property to the wife after the making of the contract set forth in the second count of the petition, the portion of the amendment which we have quoted above is an amendment to the second count, and alleges, in terms, that the husband “accumulated all the property which she owned at the time of her death and had the title put in her name with the understanding that all of said property at the death of the survivor of them was to go to and become the property of petitioner.” Considering all the allegations in count two of the petition in connection with the amendment, we think that Mrs. Gazalene Ellis, upon the death of her husband, is to be regarded as his personal representative. In the case of Johnson v. Champion, 88 Ga. 527 (15 S. E. 15), it was held: “A widow whose husband died intestate after the passage of the act of December 12th, 1882 (Acts 1882-3, p. 47), leaving no lineal descendants, is, in the absence of evidence that he left debts which are still unpaid, entitled to his whole estate, without taking out letters of administration thereon. And being so entitled, she is his ‘personal representative/ and in a suit against her by one claiming to be a creditor of her husband, the plaintiff is not a competent witness to establish an alleged contract between himself and the deceased out of which the alleged indebtedness arose.” See also Tidwell v. Garrick, 149 Ga. 290 (99 S. E. 872), and Kramer v. Spradlin, 148 Ga. 805 (98 S. E. 487). Under the authority of these eases, which applied subsection 1 of § 5858 of the Civil Code to the facts of the cases there under consideration, we are of the opinion that the objections to the evidence of William Lee Ellis Jr. should have been sustained.

In ground 25 of the motion for a new trial error is assigned upon the following charge of the court: “The defendant contends further that the alleged contracts with Mr. and Mrs. William Lee Ellis were not in fact made; that the property in dispute belonged to Mrs. Gazalene Ellis, that she had a right to dispose of it by her will in any manner agreeable to herself; that the plaintiff, William Lee Ellis Jr., recognized this for more than two years, probating the will, qualified as executor, paid out something like $9,000 in payment of Mrs. Ellis’ debts, made out an income-tax report; and that this suit is only an afterthought, filed in the hope that the will might be nullified. Now all those alleged facts and circumstances may be considered by you as throwing light on the main issue, as to whether the contracts contended for have been established or have not been established; but if the contract or contracts have been established with that degree of certainty required by the law, neither one of those circumstances nor all of them would deprive plaintiff of any rights he might have under any such established contracts.” The movant insists that this charge was error, for the reason that the proved and admitted con-duet of the plaintiff as set forth in that charge made an estoppel which would prevent a recovery on the part of the plaintiff and constituted a distinct and deliberate election of rights and remedies which should and would bar the plaintiff from recovery. We have already considered the question of estoppel. But error is assigned upon the charge last quoted upon another ground; and that is, that the charge was error for the reason that by the instruction there given the effect of the evidence referred to in the charge was limited to the consideration as to whether the contracts were made; and that the evidence referred to in this charge was for consideration by the jury for the purpose of determining whether the contracts, if made, were performed by the plaintiff, whether he was consciously aware that he had not performed the contracts, and that said evidence was properly for consideration by the jury for the purpose of determining whether, if the contracts were made, the contracts, or either of them, were voluntarily abandoned or rescinded by the parties. We are of the opinion that the criticism npon the charge points out a real defect in the instructions. The limitation upon the application of the evidence should not have been made. The facts and circumstances referred to in that charge were for the jury’s consideration, not merely upon the question as to whether the contract sued on had been made, but as to whether or not, in the language of the exception, the plaintiff “was consciously aware” of the fact that the contract had been abandoned, breached, or rescinded. It was for the jury to determine whether or not the action of the plaintiff was not in the nature of an admission that he had not so performed his part of the contract as to entitle him to specific performance thereof. What we have just said in disposing of the portion of the charge set forth in ground 25. of the motion for new trial is applicable to the exceptions to that portion of the charge set forth in ground 26.

In ground one of the motion for new trial is set forth the contention that the verdict is contrary to evidence; and in that ground movant insists that the only testimony offered to show any contract between the parties was that of two named witnesses. We will not take up this ground for decision. As the judgment of the court below refusing a new trial is reversed upon other grounds and the cause is to be tried again, we will follow the usual practice in snch cases, and withhold any expression of opinion as to the sufficiency of the evidence to support the verdict.

In the cross-bill of exceptions error is assigned on the following portion of the decree: “Further adjudged and decreed that the claim of plaintiff hereinabove established is subject to the payment of all just debts of Mrs. Mary Gazalene Ellis^ to the payment of costs of administration, and reasonable counsel fees incurred by-defendant in this case; and defendant is authorized to retain from the assets to be turned .over to plaintiff such amount as may be necessary to pay such debts, costs, and counsel fees.” In view of the fact that the judgment of the court below has been reversed on the main bill of exceptions and the case is remanded for another trial, we will not now decide as to whether or not the court was authorized to include in his decree that portion of the decree which awards costs of administration and counsel fees to the defendant. Nevertheless direction is given that this question be left open for decision until the next trial; and that the trial court, when rendering a decree upon a verdict of the jury, shall then consider and determine the question of costs and expenses.

The fourth headnote and fourth division of this opinion are by Associate Justice Hines. The other headnotes and the rest of the opinion were prepared by Presiding Justice Beck.

Judgment reversed on the main hill of exceptions, with direction as to the cross hill.

All Ihe Justices concur, except

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Dissenting Opinion

Beck, P. J.,

dissenting in part. Being of the opinion that the court did not err in sustaining the demurrer to the fifth paragraph of defendant’s answer, and in effect holding that the plaintiff was not estopped, by his acts and doings recited in this paragraph, from undertaking to set up as against the defendant his right to specific performance of the contract sued on, I feel constrained to dissent from the ruling of the majority in the fourth division of the opinion. It is true that the plaintiff as executor, after qualifying as such, continued in charge of the trust for a little over two years, and performed duties as such executor and expended during the-time that he held the office a large sum of money. But there was no inherent inconsistency in his acts in probating the will and paying out money, if such was necessary for the expenses of the estate, or in paying the debts of Mrs. Gazalene Ellis, and in now, after surrending the estate to a successor and accounting for the same, insisting that the title to the property in regard to which- specific performance is asked is his, under the contracts which he sets up. -We recognize the general rule that “any decisive act by a party with knowledge of his rights and of the facts determines his election in the case of inconsistent remedies.” Kennedy v. Manry, 6 Ga. App. 816 (supra). And that, “after the choice of one of two or more inconsistent remedies which he might originally have pursued at his option, to change his base and adopt a course wholly inconsistent with the remedy which he first selected,” will not be permitted. Ib. Also Board of Education v. Day, 128 Ga. 156 (supra). And that a solemn admission in judicio is an estoppel everywhere and forever, has been ruled in numerous cases. This court has said: “As to what is a decisive act which constitutes a conclusive election barring the subsequent prosecution of inconsistent remedies, the authorities are not entirely agreed. It is quite clear that the prosecution of one remedial right to judgment or decree, whether such judgment or decree is for or against the plaintiff, will amount to such an act.” Board of Education v. Day, supra. It is true that a judgment of the court of ordinary was had by the plaintiff, declaring the will he offered for probate to be that of the testator, and that judgment has not been objected to by any one. But the judgment probating the will was not a judgment in which the title to the property devised and bequeated in that will was put in issue. The judgment probating the will establishes the execution of the will by a person competent to make such a will. The plaintiff was named as executor of the will. He was in the line of his duty, as the named executor, in offering it for probate, unless he saw fit to expressly renounce the executorship and decline to probate the will. The probate of the will did not affect the title of any one actually having title to any of the property described in the will. In the ease of McFadden v. Dale, 155 Ga. 256, which was decided on demurrer, it was held: “Where there are three executors qualified under a will, one of them in his individual capacity may, without resigning as executor, sue the other two in equity, as representatives of the estate, to establish an implied trust in his behalf as to an undivided interest in property purchased during the life of the testator with joint funds, title to which was taken in the name of the testator.”

From the facts reported in the case of Gaither v. Gaither, 23 Ga. 521, it appears that B. T. Gaither died leaving a will, which was admitted to probate in common form. In that will the wife of the decedent was named as executrix, and she qualified as such, but afterwards obtained a rule nisi against the other legatees named in the will, to show cause why the probate of the will should not be set aside and revoked on the grounds stated, including one of testanientary incapacity, and of undue influence exerted upon the testator. When the case came on for. hearing there was a motion to dismiss the rule, on the ground that the named executrix, having qualified as such and received letters testamentary and proceeding to execute said will, was estopped from calling for a probate of the same in solemn form, and from moving to vacate the former judgment of probate; and that, having participated in the proceedings for probate before the court of ordinary, she could not then vacate that judgment or call for probate in solemn form. This motion to dismiss the rule was refused, and exceptions were taken. Discussing these grounds of the motion, this court said: “There are decisions to the effect that an admission is conclusive upon the person who makes it, if it has been acted on by the party whom it concerns. Many of those decisions are referred to in 1 Green. Ev. §§ 207, 208. The parties whom this admission concerned were the other legatees in the will, viz., the brothers and sisters of the testator. But there is nothing in the evidence going to show that these legatees by themselves or by a guardian had acted upon this admission. There is nothing in the evidence going to show that their situation was, in any respect, different from what it would have been had Mrs. Gaither never qualified as executrix. There are no facts, then, to bring the case within the principle of these decisions. And there is no decision to be found, I think, to the effect that an admission that has not been acted on is conclusive. T must say, too, that I am not prepared to give my assent to these decisions. They seem to me to be calculated to overturn one of the fundamental principles of the common law — the principle that no contract can bind that is without consideration; and to be in conflict with another important principle of the common law — the principle, that estoppels, to bind either party, must bind both parties. See Savage v. Jackson, 19 Ga., 305. We think, then, that this admission was not conclusive upon Mrs. Gaither. . . Was the second ground of the motion to dismiss the rule good? In other words, was the executrix, Mrs. Gaither, estopped by the judgment which admitted the will to probate? We think not. The judgment was a judgment, not per testes, and upon the citation of parties, but was a judgment in common form. It was a judgment, therefore, to which the other persons interested in the will, viz., the brothers and sisters of the testator, were not parties, and. therefore, was a judgment which did not estop them. They might still, for example, have set up another will more favorable to themselves, if they could have found such a one. And that which is not an estoppel to the party insisting on it as an estoppel can not be an estoppel to the other party. Estoppel, to be good, must be ‘reciprocal.’ 2 Coke Litt. 352 a.”

I am of the opinion that there were stronger reasons in the Gaither case for holding that Mrs. Gaither was estopped from prosecuting her motion than there are in the present case for holding that the plaintiff can not maintain his suit for specific performance. See also the case of Harris v. Amoskeag Lumber Co., 101 Ga. 641 (29 S. E. 302). “To amount to an estoppel, ‘the admission made in judicio, or other admission, must be one upon which the opposite party has acted, either to his own injury or to the benefit of the person making the admission.’ ” Jordan v. Jenkins, 17 Ga. App. 58. See also Harris v. Woodard, 133 Ga. 104, and Bussey v. Bussey, 157 Ga. 648 (supra). For the reasons that I have stated, and in view of the decisions cited (and others might be cited to the same effect), I am of the opinion that the court did not err in striking the portion of the answer of the defendant which is here under consideration.

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Rehearing

ON MOTION EOR REHEARING.

Hines, J.

In the motion for rehearing, counsel for plaintiff insist that this court overlooked the decision in the ease of Lamar v. McLaren, 107 Ga. 591 (34 S. E. 116). In the case cited, this court was dealing with a case of election under the Civil Code (1910), •§ 4609. In that case testator had affected to give property in which one of his sons, who was one of the executors of his will, claimed an interest. Other legatees under the will denied the interest of the son in the property disposed of by the will of his father. In these circumstances, this court held that the case made one of election, but that the son should not be put to his election until after an adjudication of the question whether or not he was the owner of some of the property disposed of by the will, and then only in the event this issue was determined in his favor. Otherwise the son might be unjustly treated. In the case at bar, the estoppel is not based upon the principle embraced in the above section of the Code and dealt with in the decision in the case cited. In the case now under consideration the estoppel is based upon the election by the plaintiff of a right clearly and unequivocally inconsistent with the position which he now takes. In the case cited there was no such inconsistency between the probate of the Lamar will by his son and his qualification as executor, and his claim to an interest in specific property disposed of by his father in his will, the son as such executor not having in any way so treated this property as the property of the testator as would estop him from asserting title to an interest in the property so disposed of under the will of his father. The facts, however, did make a case of election, but the son was not put to such election until his claim had been adjudicated in his favor. The facts in the case cited were similar to those in the case of Williams v. Wheaton, 86 Ga. 223 (supra), with which we dealt in the opinion rendered in this case.

In the next place, counsel for plaintiff in the motion for rehearing insist that we did not give full force and effect to Gaither v. Gaither, 23 Ga. 521. It is said that the position taken by Mrs. Gaither was inconsistent with the proceeding brought by her, attacking the will which she had probated in common form, and seeking to set it aside on the ground that the same was void because it was obtained by duress. This position of counsel would be well taken but for the fact that in the Gaither case Mrs, Gaither contended that she did not know that the will of her husband had been procured by duress at the time it was probated in common form. It is well settled that estoppel can not arise upon facts of which the party sought to be estopped had no knowledge. If Mrs. Gaither had known at the time she probated the will of her husr band in common form that it had been obtained by duress, then she would have been estopped from afterwards attacking the will upon this ground.

It is insisted that the court did not give full force and effect to the decision in the case of MacDougall v. National Bank of Columbus, 150 Ga. 579 (supra). The contention is that we overlooked the fact, appearing in the record in the case cited, that the plaintiff by qualifying as executor became estopped from asserting a claim to property in hostility to the estate of her testatrix. This point was raised in the record, but this court did not make any ruling thereon. However, the case cited is not in conflict with what we ruled in the case at bar. We undertook to show that the assertion by an executor of a claim to a particular piece of property of the testatrix was not inconsistent with the probate of the will by him and his qualification as executor. In such a case there is no such repugnancy as would estop the executor. In the case at bar, the executor probated the will in common form and qualified as executor, and partially administered the estate of his testatrix. By these acts he took the position, if not expressly, by clear implication, that the testatrix left an estate to be administered. After giving up his office as executor he brought the present suit, in which he alleged that all the property left by the testatrix and standing in her name belonged to him under the contracts of virtual adoption set out in his petition, and prayed for a decree declaring her entire estate to belong to him. By probating the will and in administering her estate partially he took the position that she left an estate to be administered. In the present proceeding, he takes the diametrically opposite position that his testatrix left no estate to be administered. This situation is very different from one in which an executor asserts title to some portion of the estate of his testator. In such a ease there is no such repugnancy and inconsistency as would estop the executor from enforcing his claim. In the case we are dealing with, there is such repugnancy and such inconsistency.

Plaintiff insists that we overlooked former rulings made by this court in cases cited, to wit: Finch v. Finch, 14 Ga. 362, holding that in probating the will the court does not decide upon the validity of any contract, but upon the factum of the will only, leaving the rights of parties under contracts to be determined by appropriate proceedings in proper tribunals thereafter; Adams v. Johnson, 129 Ga. 611 (59 S. E. 269), holding that the fact that a testator disposed of property which he does not own is no valid objection to the probate of his will; Field v. Brantley, 139 Ga. 437 (77 S. E. 559), holding that probate of a will does not include any issue as to the validity of the testator’s title to property therein disposed of; and Trustees of the University of Ga. v. Denmark, 141 Ga. 390 (2) (81 S. E. 238), holding that the only issue on probate is devisavit vel non, and that probate of a will is not an adjudication of the validity of a devise therein made. There is nothing in those decisions which is contrary to what is stated in the opinion in this case. We did not base the estoppel solely upon the judgment probating this will in common form. We held that such judgment by itself would not amount to estoppel. We did not hold that the title of the testatrix to the property involved in this case was adjudicated by such judgment; nor.did we hold that the validity of devises or bequests made in this will was adjudicated thereby.

It is complained that in the fourth headnote and the corresponding division of the opinion we overlooked section 5738 of the Code, and the decisions in Wilkins v. Gibson, 113 Ga. 50 (38 S. E. 374, 84 Am. St. RR. 204), Harris v. Amoskeag Lumber Co., 101 Ga. 643 (supra), Luke v. Hill, 137 Ga. 161 (73 S. E. 345, 38 L. R. A. (N. S.) 559), and Lynch v. Poole, 138 Ga. 303 (75 S. E. 158). We did not refer in totidem verbis to section 5738 and to the decisions referred to in this ground of the motion for rehearing. It is undoubtedly true that the general rule is that “The doctrine'.of estoppel in pais is predicated upon a change of position to the hurt of one of the parties acting on the representations or conduct of the other.” Lynch v. Poole, supra; Civil Code (1910)), § 5738. In the opinion in this case we undertook to show that there was an exception to this general rule in the election of remedies and in 'the election of inconsistent rights. With this we shall deal further hereinafter. Furthermore, it is the general rule, applicable alike to estoppel by record, by deed, and to equitable estoppel in pais, that estoppels must be mutual. Harris v. Amoskeag L. Co., and Luke v. Hill, supra. With the applicability of the rule to this case we shall deal further on in these remarks.

It is further insisted in this ground that the principle announced in Board of Education v. Day (supra), is applicable only to the case of election between two inconsistent legal remedies, and is not applicable to election between two inconsistent rights. To sustain this view counsel quote from the body of the decision in that case the reason given by Justice Lumpkin for the rule of election of remedies, and draw therefrom the conclusion that the rule is applicable only in the case of election of inconsistent judicial remedies. This position is not well taken. “A party can not, either in the course of litigation or in dealings in pais, occupy inconsistent positions.” “Where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts; and the election, if made with knowledge of the facts, is itself binding, — it can not be withdrawn without due consent; it can not be withdrawn though it has not been acted upon by another by any change of position.” Bigelow on Estoppel (6th ed.), 732; 2 Herman on Estoppel, § 1045; Campbell v. Kauffman Milling Co., 42 Fla. 328 (29 So. 435); Farley National Bank v. Henderson, 118 Ala. 441 (22 So. 428, 437). This doctrine has been recognized by this court. In Sleele Lumber Co. v. Laurens Lumber Co., 98 Ga. 329, 357 (24 S. E. 755), this court said: “In making its election between these two rights, the Laurens Lumber Company has elected to sue for the recovery of the property and damages. Its election in both of the instances above indicated is final; for it seems to be a well-established rule, that if a party having the right to repudiate or affirm a transaction affirms it, he can not afterwards resort to his right of repudiation; and when it becomes necessary to choose between inconsistent rights, the election will be final; and some of the courts hold that such an election can not be reconsidered even where no injury has been done by the choice, or would result from setting it aside.” So in the case under consideration, the plaintiff had two rights. He could have renounced his appointment as executor of this will, declined to probate the will, and could have resorted to his rights under the contracts which he now seeks to have specifically enforced. Or, he could probate the will, accept the office as executor thereof, qualify as such executor, proceed to administer the estate as he partially did, and claim the benefits coming to him thereunder. In electing to pursue the latter course, and asserting his right as executor to probate the will and administer the estate, he is now estopped from asserting his rights under the alleged contract which he seeks to enforce.

It has been questioned whether the subject of election of remedies or of rights properly belongs to the law of estoppel; but it has been generally so treated. Bigelow on Estoppél, 332, § 1. The term “quasi estoppel” has been applied to the doctrine of election. 21 C. J. 1202, § 204; Iiumes Construction Co. v. Philadelphia Casualty Co., 32 R. I. 246 (79 Atl. 1, Ann. Cas. 1912D, 906); Hector v. Mann, 224 Mo. 228, 246 (124 S. W. 1109, 1116); Lawson v. Cunningham, 275 Mo. 128 (204 S. W. 1100, 1105). The elements of reliance, change of conduct, and injury do not enter into quasi estoppels to the same extent as they do in equitable estoppels proper, or estoppels in pais. 10 R. C. L. Estoppel, 698 § 26. So, in quasi estoppel arising from the election of remedies or rights, the party making an election will be barred from resorting to an inconsistent remedy or right, although no injury has been sustained by the party setting up the quasi estoppel. But it can not be said in this case that the successor of the plaintiff as executor, and the defendant in the case at bar, and those whom such successor represents, would not be put to disadvantage or sustain injury if the plaintiff were permitted to prosecute the present action.

In the 6th ground of the motion counsel for the plaintiff insist that we overlooked a statement in the case of Equitable Life Assurance Society v. May, 82 Ga. 646, 655 (9 S. E. 597). That statement is as follows: “Remedies are inconsistent when the right to any of them necessarily yields or concedes the right to another.” What right is here referred to as being conceded to another ? Necessarily, in relying upon this estoppel, the defendant concedes, certainly for the salce of the argument, that the plaintiff had two rights, and especially the right which he undertakes to enforce in the present proceeding..

In the seventh ground of the motion counsel insist that we overlooked a material fact in the record, and that is, in the portion of the answer of the defendant which was stricken there is no allegation that the plaintiff acted with knowledge of his rights and of the facts. It is true that there is no express statement that he acted with knowledge of his rights; but such knowledge is necessarily implied from the facts stated in this portion of the answer. The contract set up in the second count of the petition was made with the plaintiff, and he was necessarily acquainted with its terms. He is presumed to have known the law and his rights arising under this contract. So the making of an express allegation in tbe answer that he knew of his rights was not necessary under the facts therein alleged.

In the eighth ground of the motion it is alleged that the court overlooked par. 5 of sec. 3943 of the Code of 1910, which provides that a creditor may be appointed administrator of the estate of a decedent. It is insisted that the principle stated in the fourth headnote and in the corresponding portion of the opinion would have the effect of estopping a creditor, who' was appointed an administrator, from asserting his debt against the estate of his intestate. This position is not well taken. There would certainly be no such inconsistency in such a case as would estop the administrator from asserting any claim which he had against the estate which under the law he was entitled to administer.

After a full and careful consideration of the motion for rehearing, we adhere to the ruling made in the opinion in this case.

Motion for rehearing denied.

All the Justices concur, except Beck, P. J., dissenting.