$2077. Evidence to establish.-Where an estoppel is properly pleaded evidence that tends to prove any of the essential elements of such estoppel on the one hand, or to rebut or disprove the same, on the other hand, is admissible, unless the particular evidence in general is rendered inadmissible by some rule of exclusion. What is necessary to be proved in order to establish an estoppel depends largely on the facts and nature of the estoppel pleaded, and upon the rules and principles already stated in regard to the elements necessary to constitute an estoppel. It is said, in substance by Mr. Bigelow, and in some of the reported cases, that the following elements must be present or appear in order to constitute an estoppel by conduct: (1) there must have been a representation or concealment of material facts; (2) the representation must have been made with knowledge of the facts; (3) the party to whom it was made must have been ignorant of the truth of the matter; (4) it must have been made with the intention that the other party would act upon it; (5) the other party must have been induced to act upon it.56 And in another place it is said by Mr. Bigelow57 that, "to establish an estoppel in pais by conduct it is held that it must be shown: (1) that the party sought to be estopped has made an admission or done an act with the intention of influencing the conduct of another, or that he had reason to believe, as a man of ordinary prudence would influence his conduct inconsistent with the evidence he proposed to give,58 or the title he proposes to set up; (2) that the other party has acted upon, or been influenced by, such act or declaration; (3) that the party will be prejudiced by allowing the truth of the admission to be disproved."59 Mr. Pomeroy states the essential elements of an equitable estoppel as follows: (1) there must be conduct, acts, language, or silence, amounting to a representation or a concealment of material facts; (2) these facts must be known to the party estopped at the time of his said conduct, or at least, the circumstances must be such that knowledge of them is necessarily imputed to him; (3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when such conduct was done, and at the

"Bigelow Estoppel 437 (1st ed. 480); Hosford v. Johnson, 74 Ind. 479; Bynum v. Preston, 69 Tex. 287, 6 S. W. 428, 5 Am. St. 49, 51; Blodgett v. Perry, 97 Mo. 263, 10 S. W. 891, 10 Am. St. 307, 309. "Bigelow Estoppel, 600.

58 Bigelow v. Woodward, 15 Gray (Mass.) 560; Mason v. Bair, 33 Ill. 194.

69 Brown v. Bowen, 30 N. Y. 519; Plumb v. Cattaraugus &c. Ins. Co., 18 N. Y. 392; Dezell v. Odell, 3 Hill (N. Y.) 215.

time when it was acted upon by him; (4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon (there are several familiar species, in which it is simply impossible to ascribe any intention or even expectation to the party estopped), that his conduct will be acted upon by the one who afterwards claims the benefit of the estoppel; (5) the conduct must be relied upon by the other party, and thus relying, he must be led to act upon it; (6) he must in fact act upon it in such a manner as to change his position for the worse; in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it." But, as he well observes, it would be unsafe and misleading to rely on these general requisites, as applicable to every case without modification or limitation. As a general rule, however, these are the elements that must, in most cases, be shown to be present in order to establish such an estoppel. Although estoppels in pais are not now ordinarily regarded as "odious," yet the rule still prevails that they must be pleaded with certainty. So, the evidence to establish the estoppel must be clear and satisfactory.61 Indeed, it is frequently said that there can be no estoppel by mere inference, but this principle is more especially applicable to pleading and should not, we think, be so applied as to preclude the jury from making reasonable inferences from the evidence as to the existence of essential facts.

62

§ 2078. Questions of law and fact.-It is said that whether conduct shown in particular will work an estoppel is a question of law for the court to determine.63 So, when all the essential facts are established by uncontroverted evidence and make a case in which there is necessarily an estoppel under the law as applied to such facts

60 Pomeroy Eq. Jur., § 805.

61 Mills v. Graves, 38 Ill. 455, 87 Am. St. 314; Trenton Banking Co. v. Duncan, 86 N. Y. 221; Miller v. Hampton, 37 Ala. 347; Johnson v. Owen, 33 Iowa 512; Roach v. Brannon, 57 Miss. 490; Bennett v. Dean, 41 Mich. 472; Townsend Sav. Bank v. Todd, 47 Conn. 190; Keating v.

Orne, 77 Pa. St. 89; Bell of the Sea, 20 Wall. (U. S.) 421.

02 Lash v. Rendell, 72 Ind. 475; Robbins v. Magee, 76 Ind. 381; Tinsley v. Fruits, 20 Ind. App. 534, 542, 51 N. E. 111.

63

Bigelow Estoppel, 600; Manning v. Cogan, 49 N. H. 331.

64

the court may so decide as a matter of law without submitting the question to the jury. And so, on the other hand, if there is no evidence whatever tending to establish an estoppel or an essential element thereof, it seems equally clear that the court may so decide as a matter of law. But an estoppel, well pleaded, usually presents a question of fact for the jury, if there is any evidence fairly tending to establish it, and, in a recent case, it was held that whether or not the party asserting the estoppel furnished money on the faith of the representations of the agent of the other party, and whether or not it was deceived into doing so by such representations, apparently sanctioned by the principal, were questions of fact which should have been submitted to the jury.65

"Wachter v. Phoenix Assur. Co., 132 Pa. St. 428, 19 Atl. 289, 19 Am. St. 600.

65 Gaylord v. Nebraska &c. Bank, 54 Neb. 104, 74 N. W. 415, 69 Am. St. 705, 708, 709.

§ 2079. Generally.-Executors and administrators are made, by the laws of the different states, trustees of all the property in their hands, and they derive their power from letters granted by the probate court. This is strictly true as to administrators, and it is also true in a sense at least, in most jurisdictions in this country, that executors derive their power ultimately from the letters issued by the court, although they may derive it primarily, but not completely, from the will. Creditors must, generally, come into the court of administration; and executors and administrators must usually sue and be sued in their representative capacity.1

'11 Am. & Eng. Ency. of Law, 741, 742; 2 Blackstone Comm., 494; Ansley v. Baker, 14 Tex. 607, 65 Am. Dec. 136; Wilson v. Davis, 37 Ind. 141; Carrett v. Boeing, 37 U. S. App. 42; at common law executors were considered as deriving their power sole

ly from the will, and the probate was only evidence of their right. For a case in which an executor was held entitled to sue personally, there being no creditors and he being the only person interested, see, Ewers v. White, 114 Mich. 266, 72

2

2080. Presumptions.-It will be presumed in every case that an executor or administrator is necessary, unless facts are shown making an exception to the general rule. After an executor or administrator is once appointed the presumption arises that the court appointing had jurisdiction, that all the legal steps have been complied with and that the appointment was regular. Under the statutes and authorities of many states it is not necessary for an administrator or executor to make profert of his letters from the probate court. When an executor or administrator brings suit it will be presumed, in most jurisdictions, that he has been duly and legally appointed, that he is acting in good faith, and that all of his acts are regular; and this presumption is conclusive unless denied by a special verified plea." When the defendant files any pleading, except the verified special answer denying the capacity of the executor or administrator to sue, this conclusive legal presumption generally controls concerning his capacity to sue, and no evidence will be heard to the contrary. In the absence of evidence to the contrary it will be presumed that a decedent died intestate. But there is no presumption, in the absence of evidence, that a deceased person died within the state or that his estate is within the jurisdiction of the state."

N. W. 184; see also, where the action is on a personal contract with himself or for a violation of his actual possession, Hunt v. Stevens, 3 Taunt. 113, 115; Hollis v. Smith, 10 East 293; Heath v. Chilton, 12 M. & W. 632; Yarborough v. Ward, 34 Ark. 204; see also, Sears v. Daly, 43 Ore. 346, 73 Pac. 5; Burrell v. Kern, 34 Ore. 501, 56 Pac. 809, and authorities cited.

*Ansley v. Baker, 14 Tex. 607, 65 Am. Dec. 136; Green v. Rugely, 23 Tex. 540; Northwestern Conference v. Myers, 36 Ind. 375.

'Railroad Co. v. Belle Center, 48 Ohio St. 273, 27 N. E. 464; Bowen v. Stewart, 128 Ind. 507, 26 N. E. 168; Shroyer v. Richmond, 16 Ohio St. 455.

But see as to the rule at com. mon law where the cause of action accrued to the deceased in his life

VOL. 3 ELLIOTT Ev.-37

time, Williams Exr's, (7th Eng. ed.) 304, 1875, 1876.

6

Sherman v. Willett, 42 N. Y. 146; Gutridge v. Vanatta, 27 Ohio St. 366; Bennett v. Gaddis, 79 Ind. 347. Noonan v. Bradley, 9 Wall. (U. S.) 394; Belden v. Meeker, 47 N. Y. 307; McDowell v. North Adm., 24 Ind. App. 435, 55 N. E. 789; Armstrong v. Lear, 12 Wheat. (U. S.) 175; Remick v. Butterfield, 31 N. H. 70.

'Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334; Newman v. Jenkins, 10 Pick. (Mass.) 515; Brooks v. Walker, 3 La. Ann. 150; Stephenson v. Martin, 84 Ind. 160; McDowell v. North, 24 Ind. App. 435, 55 N. E. 789.