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 *710until 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 Colum*711bus, 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 *712any 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 *713election 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. *714The 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 *715tbe 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.