By the Court.
Starnes, J.delivering the opinion.
[1.] The point first made in this case, viz: that upon the - admissibility of James Reeves’ testimony, is controlled by the agreement entered into between the parties, (which is set forth in the statement of facts accompanying this case,) to the effect that such evidence was to be admitted on the trial of one case •as would be admissible in either of them — a stipulation' which *452seems to have been adopted for the exclusive purpose of obviating just such an objection as that made here.
[2.] The Court was right in refusing to charge, that if William Reeves died in possession of the negroes sued for, then his administrator is entitled to recover. This point was settled by this Court in the case of Yeldell vs. Shinholster, (15 Ga. 189); and for the reasons which influenced that decision, we refer to that ease.
[3.] The other points submitted make necessary a slight consideration of the nature and character of an estoppel in pais. We need not pause to discuss the difference between such an estoppel and a technical estoppel. Suffice it to say, that this, kind of an estoppel results from acts or words, or both, which are intended to induce another to act in some matter touching his interest, on which he does act, and by which an advantage is gained by him who speaks or acts, or by which injury results to the other party. That is to say, one person, by his admissions or conduct, shall not be allowed to influence another, with whom he is dealing, and lead him into a line of conduct prejudicial to his interest, unless the party estopped be cut off from the power of retraction.
In all cases “ where an act is done or a statement made by a party, the truth or efficacy of which it would bo a fraud on his part to controvert or impair, there the character of an estoppel shall be given to what would otherwise be mere matter of evidence, and it will therefore become binding upon a Jury even in the presence of proof of a contrary nature.” (Stephens vs. Baird, (9 Cow. 274.) Welland Co. vs. Hathaway, (8 Wend. 483.)
Of course, admissions which are made in good faith or by mistake, not the result of gross negligence, do not fall within such definition, for this sort of estoppel (being adopted by the Courts of Law from the Courts of Equity) must be founded in fraud or in gross negligence amounting to fraud. (1 Story Eq. §§286, 391.) Brewer vs. Bos. & W. R. R. Co. (5 Met. 483.)
Let us try the point in question by this rule. How were these defendants injured by these admissions of William Reeves, *453supposing them to have been made, and supposing that they influenced the distribution of the property ? They were put to no expense by such distribution, and have lost no rights by it, and have been rather benefited than injured by the same.
Though there is no issue here between the executor and the plaintiff in error, yet we may remark, that the former is not injured. He has discharged his duty, or what he supposed his duty, and cannot be liable for this distribution, should the question ever be made with him.
Having ascertained this, let us look to the charge, which was, that “if the Jury believed,.from the evidence, that William Reeves admitted, either expressly or by his general conduct to the defendants, or either of them, that the property in dispute was held by him for life under the will of Cleveland, and at his death belonged to defendants, and confiding on these .admissions, acted upon the same in any way, then the admissions are conclusive on the plaintiff, and defendants must recover.”
Now, if we apply the principles which we have just understood governs in such cases, we find this instruction deficient, because the Court tells the Jury that the admissions are conclusive, &e. if the defendants acted upon them in any way. The rule declares that the party must so act that an advantage will be gained of him, or an injury result to him, unless the other is estopped, &c. But the Court says, he shall be estopped, if he act on the admissions in any way. This is plainly too loose, and was of a character which might mislead the Jury. If the record had shown any such action on the part of the defendants, as marriage of the daughters for example, having such property in possession; or if it had appeared that by reason of such admissions, a daughter had claimed such property, and this was generally known, and so claiming it she married, these things would illustrate the rule.
Reference was made in the charge to admissions made by Reeves before the death of William Cleveland, and it was argued that the latter may have acted upon them, and have made a disposition in favor of his grand-children, other than he would *454have made. This should have been shown, if any thing like this were true. And in the absence of testimony going to show that such admissions ever came to the knowledge of William Cleveland, and influenced him in any manner, nothing is proven amounting, as we have seen, to an estoppel in pais.
The charge of Court, as to the effect of these admissions, considered simply as testimony, was correct.
[4.] The point made upon the refusal to charge as requested in the second request of Counsel for the plaintiff in error was, that if William Reeves derived title from Cleveland to the woman Esther, a bare promise, without consideration, as to what disposition should be made of her after the death of his wife, was void.
The doctrine thus contended for is correct enough in itself; but we are not sure, so far as it has reference to a promise, that it would have been authorized by the facts. So far as it relates to admissions made by Reeves against himself, going to show the character of his title to this slave and her increase, they may be looked to as evidence of such title ; or if such were made and acted on in the way we have pointed out, they may amount to an estoppel.
Let the judgment be reversed.