— The question presented under the assignment complaining that the court sustained exceptions to the amended pleadings of the appellants does not question the conclusiveness of the judgment or order of the county court in 1855, making an allowance to Mrs. Millican, as the then surviving widow of her former deceased husband, nor does it involve' the pronositi.on as
The true question made by the appellants was whether Mrs. Millican relinquished and abandoned the allowance that was made to her under circumstances that now conclude her from asserting any claim to the enforcement of the order of the county court making it. The amended plea of opposition alleged that of the allowance of $800 made to her, $414 was paid to her at or about the time of the allowance; that she was in possession of property belonging to the estate of the value of $8,000, which she had taken wrongfully and in violation of the rights of the creditors of the estate. That no steps were taken by T. B. Williams, the administrator, during his life to recover the same from her; that one Feeney was appointed administrator de bonis non in 1858, after the appropriation by Mrs. Millican of said property; that more than two years had elapsed after said appropriation, and that all rights of action against her had become barred and lost by lapse of time. That Mrs. Millican “ did not afterwards demand the payment of said balance of $388, but abandoned her claim against the estate, well knowing that she had in her possession as aforesaid property belonging to said estate largely more than the balance due her from said estate, for the satisfaction thereof; nor did the administrator or the creditors demand .of her the restitution of said property, but by mutual forbearance and acquiescence on the part of all of the said parties, said Louisa J. Blanton (Mrs. Millican) was permitted to retain said property, and the same was so accepted and retained in full satisfaction and settlement of all claims in favor of said Louisa J. Blanton against said estate, and of all demands of the administrator and creditors of said estate against her.”
Undoubtedly it was competent for Mrs. Blanton (afterwards Mrs. Millican) to abandon and relinquish to the use of the estate of her deceased husband her right to demand or receive the benefit of the allowance that was made to her. It was competent for her to thus relinquish it by a contract entered into by her for that purpose, or ■she might, sua volente, do so upon any reason or consideration satisfactory to herself. And if one has apparently thus abandoned a right, as evidenced by acts or non-action which have led others justly and reasonably to believe that he has so abandoned his right,
Tlia^ facts alleged being taken as true, it would seem that the long acquiescence on the part of Mrs. Millican, if otherwise left unaccounted for, would at least afford evidence of an intention to abandon her right to demand the unpaid balance, and operate to estop her certainly from claiming interest on the same, even though as a fact it should appear that she did not attempt to abandon her claim. If her seeming acquiescence and satisfaction with the amount of $414 actually received, and the use and benefits realized by her from other property, during a period of about twenty-eight years, had the effect to induce the administrator and the creditors to believe and rely on the fact that she had abandoned all claim for further payment of her allowance, she would occupy a position forbidding any pretensions for a claim to interest on the claim, which is allowable on the principle of compensation to be given for withholding the payment of a demand due and claimed by the beneficiary. If creditors and the administrator had been led by her acts to rely upon her non-claim of the amount of balance asserted now to be due, she will be estopped from claiming the right to charge the common fund in the hands of the administrator for the payment of creditors, with interest on said balance, although in fact she may have not intended to abandon her claim. See 2 Story’s Eq., secs. 1534, 1535, 1536.
The appellants charge in their pleading an actual abandonment in intention and in fact. If Mrs. Millican did abandon her said claim, and so intended to do, she cannot now assert it. Her demand at this late dav would be a stale demand. See Vogelsang v. Dougherty,
A right in land or a chattel may be abandoned. “Abandonment,” said Chief Justice Wheeler in Dikes v. Miller,
We am of the opinion that the court erred in sustaining the exceptions of the appellees to the amended pleadings of the appellant, and that the judgment therefore ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion adopted May 6, 1884.]