40 Ga. 676 | Ga. | 1870
We are clear that there ought to be a new trial in this case. The legacy to these young men, was given to them distinctly upon condition that they would not press their claims against the testator’s estate, for his acts as their guardian. After his death they accepted the legacy, took possession of it, and have had it now nearly ten years. We hold that they are estopped. It would be gross injustice to permit them to enjoy the legacy ten years, and, after perhaps wearing out the land, or finding it depreciated, to set up their claims, with accumulated interest and repudiate their own act of 1860. When they accepted the legacy, that closed their mouths. There is no pretense, that they acted under a mistake or that they were misled. It is a plain open ease of taking a legacy upon condition that they would give up their claims, enjoying the legacy eight or ten years, and then repudiating their own act.
But admitting this was a condition subsequent, that these boys always were to have the right when they pleased to throw up the legacy and sue, are they not to account for the rents and profits of the land ?
Those rents belong to the estate, it is the executor’s duty to collect them, and he has a right to set them off against this claim. It is always the duty of the executor, to deliver over the estate to the legatees. If this land belongs, under the will, to the testator’s daughter, it is the executor’s duty to take care of it, rent it, until he can deliver it to her. The right to collect the rents is in him as executor. Much more is this offset good in this case, because except these boys, the daughter is the sole legatee; the gift to the wife is a mere charge on the property in her. Besides, we are satisfied that under the evidence as it appears in the record, the verdict ought to have been for the defendant.
The board of these boys was under the proof, always worth more than the negro hire; their brother-in-law fixes at $150 00 per year. There was not any year, under the evi-
We put our judgment mainly, however, upon the ground that the legatees are estopped, by accepting and enjoying this legacy, from now bringing suit.
Judgment reversed.
