dissenting.
When the opinions of the majority of the court were read, I announced that my impressions were adverse to the conclusions of my associates, and that, so soon as my health would admit, I would carefully consider the case and put in writing my views. That duty I have performed.
For convenience of the investigation, the subjects involved may be divided into these propositions :
1. Was Jefferson Davis the owner of the Brierfield plantation ?
2. Did Joseph E. Davis, in the sale of it to the Montgomerys, act on behalf of, and as agent of, Jefferson (as averred in the bill), or did he dispose of it in his own right ?
3. Has Jefferson Davis, by his acts and conduct, waived whatever right he may have had to the property or its proceeds ?
Since I do not concur with the majority of the court as to the legal value of the facts in evidence bearing on these several *788propositions, or in the principles of law applied to them, I will state my separate views.
1. In 1835 Joseph E. Davis was the absolute owner of a large body of land in Warren County, of which what is known as “ Brierfield ” constituted a part. In that year, or the year following, Jefferson Davis, without visible means (except one slave derived from his father), with the permission of his brother, went into possession of part of the land, and, with his brother’s assistance, gradually subdued the forests to cultivated fields, established a plantation, and stocked it with labor.
Joseph E. Davis purposely retained in himself the legal title, and never did convey it to his brother, but on one occasion resisted the earnest importunities and entreaties of his wife so to do. I say purposely “retained,” because Joseph E. Davis was a lawyer of experience, systematic in business; besides, he was endowed with rare mental force, assiduously cultivated, so that he became a marked character for intelligence, sound judgment, and energy of will.
Under a possession thus begun, Jefferson Davis enjoyed the property and its fruits until it became unproductive, during the late war. In the inception of it did Joseph E. intend more than to permit Jefferson (towards whom “ he felt in the relation of a father”) to have the usufruct, reserving the title and ultimate disposition to himself? or did he mean that Jefferson should hold as absolute owner? The answers to these questions must be furnished by the subsequent acts and conduct of the parties.
To the public, Jefferson appeared to- be the owner of ‘ ‘ Brierfield; ” he was in the occupancy, planted and gathered crops, and controlled the revenues. Joseph E., as remarked, was a lawyer of more than usual attainments, and did not convey to his brother, from design, as we might suppose, if there were no testimony to the point. It is shown in evidence that he assisted his collateral relatives by giving them the use of land, but that he uniformly withheld the *789deeds. The testimony strongly conduces to show that he paid.in part for the dwelling-house erected on “Brierfield,” by a conveyance of a tract of land in Madison Parish, Louisiana. One of the mechanics so states, and a deed was put-in-evidence in corroboration. It is in proof that the mansion-house was intended in part for the residence of Mrs. Bradford, a widowed sister of Joseph E., and was so constructed as to afford separate apartments and culinary accommodations for the two families.
About the time this dwelling-hous'e was being built, Joseph E. Davis exhibited a sworn bill in chancery, predicated on his-ownership of “ Hurricane” and “Brierfield.” Several years afterwards an amended bill — in 1851 or 1852 — was filed under oath, with the same assertion of right. It is barely possible that Jefferson Davis may not have been aware of these judicial proceedings.
In 1865 Joseph E. Davis preferred a claim to the United States authorities for restoration of the possession of “Hurricane” and “Brierfield,” on the distinct allegation that he was the owner of both. To Dr. Bowmar, who, in common with the public, supposed that Jefferson owned “Brierfield,” and who had been deputed as agent to urge his suit at Washington, he stated “that the legal title was in himself.” And in aid of his application he filed with it the certificate of the clerk, or register of deeds, that no conveyance of “ Brier-field ” or “ Hurricane ” to any person was on record.
In the same year (1865), whilst temporarily resident in Alabama, he prepared and formally executed a last will and. testament, in which he devised “Brierfield” to the children, of his brother Jefferson.
In the following year (1866) he sold and conveyed “ Brier- . field ” and “ Hurricane ” to the Montgomerys.
A little more than two years afterwards (March 18, 1869) he made another last will and testament (which was probated), by which he specifically disposed of the bond and interest. *790notes, or the larger part, given by the Montgomerys for these plantations.
One of two interpretations must be put on these solemn and formal acts of Joseph E. : either that he verily believed that the title, with the jus disponendi, was in himself, or that he willfully and deliberately asserted rights to property which he Bad given to his brother, and to which he had no real claim.
The theory of the bill is disclosed in the second paragraph, where it is alleged that Joseph E., “ in making the sale, acted in his own behalf in respect of his own plantation, known' as * Hurricane,’ and in behalf of complainant in respect of ‘ Brierfield.’’ ” “At the same time, Benj. T. Montgomery was well aware that complainant was owner Of ‘ Brierfield; ’ and the sale of ‘ Brierfield ’ was upon the express condition that the same should be subject to complainant’s election to ratify ■or annul,” etc. The averment, in substance, is that Joseph E. sold “ Brierfield,” as agent, conditionally on the ratification and approval of Jefferson.
The only rational explanation of the acts and conduct of Joseph E. Davis is that he honestly believed that the legal title was in himself, and that he could transfer it by sale.
, Is the theory of the bill sustained by the subsequent conduct of the parties ? The sale was consummated on November 19, 1866. Two years and four months afterwards Joseph E. made his last will and testament, in which he, with particularity, refers to the sale, the bond, interest notes, and mortgage taken for the purchase-money, and bequeaths the entire amount as part of his estate. There is not a word or expression in the will which gives the slightest countenance to the idea that the testator did not esteem this fund as completely ■a part of his estate as any property which he disposed of.
This last solemn assertion of right, occuring within a year ■of his death, is the highest possible affirmation that he sold both plantations in his own right, and disposed of the pro-needs as his own, and negatives the averment of the bill that *791he had “ acted ” in the sale, as respects “ Brier field,” on be-, half of his brother.
It is natural to expect that a man of the probity and intelligence of the testator, if he held the bond, interest notes, and mortgage in part as agent and trustee of his brother, should have so declared in his will. Not being alluded to there, it is difficult to understand, if such was the reality, that no. paper, letter, or document has been found explanatory of it.
But did Jefferson Davis regard the sale, of “ Brierfield ” as made on his “behalf?” In reply to a communication.from Joseph E., advising him of what he had done, he wrote to him, from Fortress Monroe, on December 17, 1866', about a month after the sale, to this effect: “ It will, no doubt’, occur to you that, the proceeding [the sale] having been made public, it will be advisable to close it soon, and tightly. * ’ * The active malignity towards you, as my brother, might prompt to some congressional movement to interfere with it.” After expressing doubt of the ability of the negroes to carry out the purchase, he adds: “ Then it may be that a better .state of affairs will render the property valuable to your heirs. I have no doubt that Mrs. Stamps narrates the message with which she was charged by Joseph E. Davis to his brother, and the interview with Jefferson, according to her best recollection. This occurred about ten years before her deposition was taken. Jefferson made a written memorandum, from which I have quoted, and which bears on its face internal evidence of being an unreserved answer to his brother’s message.
After release from imprisonment he had personal intercourse with Joseph E., and yet we have no information that he ob-: jected to the sale, or claimed any part of the proceeds. In a letter under date of December 26, 1868, speaking-in reference to the application of Benjamin Montgomery, to rescind, after expressing the opinion that he must ultimately fail, he says : “ It is also within his [Benjamin Montgomery’s] ability to see that he had better retire with the means he has acquired by possession of your property, and engage in small trade.”
*792Again, under date of April 5, 1869, London, he writes: “If Montgomery- and sons can not, or will not, comply with the contract, could not some oue with capital be found to take the lands and secure to you a revenue, free from any vexatious attention on your part? ”
This correspondence refers to the lands as “ your lands,” and the income as “ your revenue,” and does not, in the remotest degree, hint at a right, or ownership, in the writer.
In 1870, in a conversation with his niece, Mrs. White, in New Orleans, she urged him to apply to Joseph E. for a deed to “Brierfield.” He declined to do so, out of motives of delicacy. After his brother’s death he wrote to Mrs! White, regretting that he had not taken her advice. If Joseph E. had sold “Brierfield ” for “his behalf,” and held the bond for the price as his trustee, the natural response to Mrs. White would have been, “ My brother has sold .the property for me, and will pay over the priceand there could have been no ground of regret that he did not follow her advice.
There is testimony in the record of conversations, especially with Joseph E. Davis, to the effect that he regarded Jefferson Davis as the owner of “Brierfield.” But the principle is common to all systems of jurisprudence to give a decided preference to written memorials over verbal • representations founded on the imperfect recollection of witnesses. Writings are higher in the scale of evidence, and ought not-to be controlled by the weaker. Herman on Estop., sec. 210. •
The defense of the statute of limitations was most relied upon, at the oral argument, to perfect the complainant’s right-to “Brierfield.”
That a just appreciation of possession, as working the effect of defeating the title, may be had, I stop for a moment to consider the authorities. Alexander v. Polk, 39 Miss. 755: “ The possession which is relied on to defeat a conveyance (the paper title) by the real owner must be adverse — that is, it must be openly and notoriously in defiance of the actual title— and to effect which nothing short of ouster or disseizin will *793serve;” citing Zellers v. Eckert, 4 How. 289. “Adverse possession implies that it commenced in wrong and is maintained against right. The party relying upon possession must prove it to be adverse to the title set up citing Jackson v. Sharp, 9 Johns. 163. Such possession, if open and notorious, under claim and color of right, by lapse of time may ripen into a good legal title. Huntington v. Allen, 44 Miss.; Gladney v. Barton, 51 Miss. 219, 220. In Dixon v. Cook, 47 Miss. 226, it is said that two facts must exist: first, “ there must be an entry under color of light, claiming title hostile to the true owner; second, continuous occupancy for the .statutory period.” In Magee v. Magee, 37 Miss. 152, the court says that the clearest and most comprehensive definition •of “ disseizin and adverse holding” is by Mr. Angelí, in his work on Limitations, page 410, section'll: “ It is an actual * * * appropriation of land, commenced and continued under claim of right, either under an openly-avowed claim, or under a constructive claim arising from the acts and circumstances attending the appropriation, to hold the land against him who was seized.” It is further said “ that the principle on which the statute of limitations rests is, not that the party has setup an adverse claim .for the period prescribed, but that .such an adverse claim is accompanied by such invasion of the rights of the opposite party as to give him a cause of action, which, having failed to prosecute within the time limited by law, he is supposed to have extinguished or surrendered;” •citing Abell v. Harris, 11 Gill & J. 371. “ The intention of the possessor must be considered in determining its character.”
Where the entry is without claim or color of title, the law adjudges the possession as subordinate to the legal owner, and no length of possession will render such holding adverse. But if there be an entry without claim of title, and no privity exists between the enterer and real owner, and a subsequent acquisition of title which the enterer believes good, from that moment his possession becomes adverse. Jackson v. Thomas, *79416 Johns. 293; Jackson v. Johnson, 5 Cow. 74; Howard v. Howard, 17 Barb. 666.
I am constrained to these conclusions :
1. That Joseph E. Davis intentionally and purposely retained the title to “ Brierfield,” and that the several acts done by him (referred to) were positive affirmations of his right over the title and the jus disponendi.
2. That the allegations of the complainant that Joseph E. sold “ Brierfield ” on “ his behalf,” and held the fund therefrom arising as trustee, are not sustained by the evidence, but are inconsistent with the acts and assertions of ■ both parties since the sale.
3. In view of the testimony it is a matter of most grave and serious doubt whether the permissive entry of Jefferson at any time assumed an adversary form, and whether he could recover “ Brierfield,” or its price, if he had done none of the acts and things — presently to be considered' — which were pleaded in bar and preclusion of his claim.
4. It is quite certain that Joseph E. believed that he had the title, with the right to sell and convey, and the further right to dispose of the proceeds by last will and testament.
5. Jefferson Davis knew of these assumptions of ownership by his brother, and may have thought that his brother was mistaken. In such circumstances it was plainly his duty promptly to have made up his mind to abide by the will and execute its trusts, or to have stood aloof, avowed his adversary claims, and have asserted them; for every fact necessary or important to be considered in making the election was as well known to him when the will ivas propounded for probate as when he filed his bill.
Has Jefferson Davis acquiesced in the sale of “ Brierfield,” and the disposition made by the testator of its proceeds? or have his acts and conduct precluded him from asserting the claim set up in the bill ?
1. Joseph E. Davis lived four j^ears after the sale. - Jefferson was made aware of it within a month after its date. He had *795personal intercourse and correspondence with his brother in .relation to the property and sale, yet at no time in these years ■did he claim “ Brierfield,” or its price. We know that it was "the subject of correspondence, and must believe that it was a topic of conversation.
After the sale — how long after we are not informed — it was verbally agreed between Joseph E. Davis and Benjamin Montgomery that, if Jefferson Davis should desire to take up his residence there, the contract must be rescinded — not that Montgomery should convey to Jefferson. But the intention was to make such arrangements as would be agreeable and •deemed necessary by Joseph E., if Jefferson desired to live at “Brierfield.” Jefferson did not prefer to take up his abode there, and hence .Joseph E. made no change in the disposition of that property.
2. Yery promptly after the death of Joseph E. Davis, and .after the will had been proved and established by Dr. Bow-mar, one of the executors, Jefferson voluntarily gave bond, when none was required by the will, and took the oath prescribed by law as one of the executors.
8. He took an active and leading part in the consultations .and proceedings of the executors (a record of which was kept, which he and the other executors signed). At the meeting in December, 1870 (the first one), the choses in action due the testator were carefully examined, a schedule of them — including the bond of the Montgomerys for $300,000 and the interest notes of $18,000 each — were recorded in the journal, .and Dr. Bowmar was directed to include them in the inventory as assets of the estate; and that without hint or intimation from Jefferson Davis that he claimed part of the fund in his .separate right. At this meeting the several provisions of the will were discussed seriatim. Among other things it was decided that the direction to invest the portion of the $300,000 .(the price of ‘ Hurricane ’ ’ and ‘ ‘ Brierfield ’ ’) for the grandchildren applied to the principal sum given them, and not the *796interest; and that, after satisfying the legatees, the residue of that sum would be available for creditors and legatees.
4. In 1871 Mr. Davis participated with the executors in - taking cumulative mortgage security from the Montgomerys.
5. Other meetings of the executors were held, down to and including those of December 26 and 27, 1873, which Jefferson Davis attended, the chief business at which was the discussion of the indebtedness of the Montgomerys and the means and probabilities of payment.
6. During these years the interest notes of the Montgomeryswere collected, and a distribution of th'e money made to the-legatees, to pay intesest on their bequests. Jefferson Davis on each occasion received the share of his children.
That the effect of these acts and others hereinafter mentioned may be better appreciated, I quote several clauses of the will
“ First. I give and bequeath to my grandchildren, Joseph D. Mitchell and Mary Elizabeth Mitchell, all the estate, real,, personal, and mixed, as well as all right and credits with which I may die seized and possessed, subject to the legacies- and bequests hereinafter mentioned, to be controlled by my executors in the manner hereinafter directed.”
The same provision, in effect, is repeated in another clause. The fifth article is :
“ It is my will and desire, and I so direct my executors, out-of the money due from the sale of Hurricane and Brierlield plantations, amounting to $300,000, secured by the joint obligations of B. T. and Wm. T. and Isaiah Montgomery, payable 1st January, 1876, bearing date the 19th November, 1866, secured by mortgage on the land sold, and also their obligations for interest, on the maturity of said bond for $300,000, it is my will and desire that my executors set apart and secure to my granddaughter, Mary Elizabeth Mitchell, $100,000 ; to-my grandson, Jos. D. Mitchell, $50,000 ; to Margaret, Jefferson, William, and Yarina Davis, children of my brother, Jefferson Davis, $20,000 each; and until the said sums-*797"become clue they shall be entitled to receive interest at 6 per •cent per annum, as secured by said interest obligations.”
The other clause relates to investments to be made for Mary E. and Joseph D. Mitchell. Interest to be paid to the children •of Jefferson Davis until they severally become of age, when the principal shall be paid them. “ The legacies herein directed to be paid from the proceeds of said sale shall be a lien on, and held by, such legatees, with all the rights and privileges of the mortgagee.”
Two observations are obvious in respect of these articles: One is that the testator did not intend to die intestate as to any property of whatever kind, whether tangible or dioses in action; and the words accomplish that intention. Second, that the pecuniary legacies to the two grandchildren, and his nephews and nieces, were to be paid out of the proceeds of the sale of the Hurricane and Brierfield plantations ; and that whatever surplus of that fund there might be would pass, under the residuary clause, to the grandchildren, Mary E. and Joseph D. Mitchell.
That such is the legal effect of the clauses quoted is too plain for argument.
Such was the construction put on the will by the executors at their first consultation, as recorded in their journal.
The burden of debts would fall upon so much of the estate as would constitute the residuum — what would remain after ■satisfying the specific legacies. To the extent of the debts would be diminished what would otherwise go to the grandchildren as residuary legatees.
It appears that Jefferson Davis had a debt of long standing against his brother, Joseph E. The executors had refused to pay it; nor could it have been recovered from them.
On December 21, 1872, Jefferson Davis entered into a contract, under seal, with Mary E. and Joseph D. Mitchell, described as “legatees under the last will and testament of Joseph E. Davis, dec’d,” by which they agreed to pay $10,000 *798in satisfaction of the claim, out of the “residuary fund.” There is the further stipulation that the interest due annually from the Montgomerys shall be used as follows: first, ‘ ‘ to pay taxes, general debts, and necessary expenses in the administration of the estate ; to pay interest on the respective legacies made -chargeable by the will on the revenues derived from the Hurricane and Brierfield plantations ; to pay the debt due to Jefferson Davis, as per this agreement, out of any surplus-which may remain after discharging the above preferred obligations.”
The legal effect of this agreement is that Joseph D. and-Mary E. Mitchell obligated themselves to pay Jefferson Davis-110,000 out of the residuary fund, in “ compromise and satisfaction of his claim against the estate; ’ ’ and to that extent they agree to subtract from what may come to them as residuary legatees. They further agree that payment may be-made out of the interest notes, if there shall be an excess after discharging prior enumerated claims upon it.
The contract is signed and sealed by the three parties. It. contains the distinct recital and admission that Joseph D. and Mary E. Mitchell are legatees “of the residuary fund.mentioned in the will of the testator.” Part of that fund is the excess of the $300,000 (Montgomerys’ bond) over the legacies charged upon it.
It further recites that the interest notes are part of the assets of the estate, and shall be used for certain purposes — in part, to pay this debt.
In this writing, in effect, Mr. Davis says to these legatees r “ You are the owners of the fund that must pay this debt if it is ever paid. The executors do not feel authorized to pay it. If you will agree to assume it, by way of compromise I will fix the amount at $10,000.” The will devotes the notes to keep down the interest on the specific legacies. But the parties covenant that they shall first be applied ‘ ‘ to pay the taxes, general debts, and expenses of administration.” In-*799this particular the concession is all on the side of the legatees, since Mr. Davis was personally a recipient of commissions, which are part of the “ expenses of administration.”
The further covenant is that the executors shall pay the debt, from time to time, out of the “ fund named, but not so as to impair the full amount of the several legacies charged on the proceeds to be derived from the Hurricane and Brierfield plantations” — that is to say, these residuary legatees are in no event to subtract from their specific pecuniary legacies derived from the land sale, but that whatever remains after paying them is pledged.
This is an affirmation and assertion, in the form of a contract, that Joseph E. Davis had rightfully disposed of the proceeds of “Brierfield” by his will. And Jefferson Davis covenants, with the largest donees of that fund, that so much of it as shall not be needed for specific bequests shall be apjdied to pay him a large sum, as creditor of the estate.
Let us now attend to the principles of law, and their effect on the claim of a party to' trust property, set up in the face of such acts as those we have been considering.
A trustee is, ordinarily, the owner of the legal title, and the nature and quality of the estate generally depend on the limitations in the instalment under which he takes. The executor takes the legal title to the chose in action. His acceptance of the trust is the investiture of the title. There is a repugnancy and inconsistency in entering upon the office and dealing with the dioses in action as assets, and, at the same time, cherishing an adversary claim to the effects. The position is one of confidence, and implies that the executor will discharge it with fidelity.
There is nothing harsh in the rule which requires the executor, when in full possession of knowledge as respects his own claim to any part of the assets, to make up his mind whether he will discharge the trusts imposed by the testator, or whether he will assert his own claim. If we may say that the act of giving bond and taking the oath will not conclude him, to
*800these we may add the inventory. But there must, in reason, arrive a time when the executor has done so many things in execution of the will as that he should be conclusively held as having waived or abandoned his own pretensions. The doctrine of estoppel, as expounded by modern jurists, is founded in wisdom and justice and the purest morality. The essence of it is responsibility for one’s deliberate acts and conduct. In the leading case of Pickard v. Sears, 6 Ad. & E. 469, Lord Denman said : “ The rule of law is clear thát where one, by words or conduct, causes another to believe a certain state of facts, and induces him to act on that belief, so as to alter his previous position, the former is concluded from averring against the latter a different state of things as existing at the time.” For illustration: where a party became “receptor” for goods Jevied on by an officer, he was precluded from setting up a title in himself at the time of the levy; because such claim would be inconsistent with his duty to restore the goods, and the creditor and officer may,have been influenced to forbear talcing other measures to make the debt. Dezell v. Odell, 3 Hill, 215. Speaking of the effect of it, the court says: “It is a-clear case of an admission by the defendant, intended to influence the conduct of a man with whom he was dealing,.and actually leading him into a line of conduct which must be prejudicial to his interests unless the defendant be cut off from the power of retraction.” “Before the defendant can show adverse title, he must prove that he was drawn into the admission by fraud, or some gross mistake of fact.” The same, in principle, are the cases of Presbyterian Congregation of Salem v. Williams, 9 Wend. 147; Stephens v. Baird, 9 Cow. 274; Stonard v. Dunkin, 2 Camp. 344.
In Saunders’ Heirs v. Saunders’ Executors, 2 Litt. 321, Gatewood (one of the executors) refused to hold the slave as executor, but promptly set up a title (undoubtedly good) in right of his wife. That title was proved in a friendly suit against the other executors. It does not appear that the slave was ever inventoried, or treated by the executors as the prop*801erty of the testator. Gatewood referred his possession to his wife’s title.
The character of trustee, in any of its relations, imposes special duties and disabilities.
In Henderson v. Segars et al., 28 Ala. 358, a party assumed the position of trustee in a deed fraudulent as to creditors, and so Icnown to him. The court held that, pending the obligation which he, had assumed to carry out the trust, it was not competent for him to set up his own claim as creditor, or ¡is surety for White (th & fraudulent grantor), antagonistic to the trust; for the reason “ that he was effectually estopped, by reason of the relation he voluntarily assumed.” “ The deed being valid as to him, all the duties and disabilities which attach to ordinary trustees at once were devolved on him.” If he had been permitted to aver that he was a creditor, or a surety of the grantor, so as to reach the property, he would have broken up the trust which he had consented to execute. He was, therefore, conclusively esteemed as having waived his claim as creditor.
In Stone v. Godfrey, 5 De G. M. & G. 94 (54 Eng. Ch.), Lord Justice Turner, in the course of his judgment, declared “ that it is impossible for a person who has acquired possession of an estate upon trust for the benefit of another, to be permitted to set up that possession as adverse to another. It was the father’s duty, if he meant to claim adversely to his daughter, to have given up possession, and then to have set up his claim after he had redelivered possession.” In that case Stone, the hither, was clearly entitled to the estate by the curtesy. He was advised by counsel that he had no such estate. So believing, he accepted the trust for his daughter, and continued in its performance for many years.
There is one important difference between that case and the one before us : Jefferson Davis did not accept the trust under a mistake of law, or incorrect advice of counsel. He did not continue to discharge the trust as many years as Stone, but he *802did as many acts of unequivocal loyalty to the testator and cestuis que trust as did Stone.
In Duncan v. Bryan, 11 Ga. 66, it was said by Lumpkin, C. J., that, “Duncan having consented to act as Mrs. Wallace’s trustee, he shall be forever afterwards precluded from contesting the fact in any suit between themselves.” “ The law forces no one to accept the gift of an estate, whether made in trust or not; but, having once accepted the trust and got possession of the property, he cannot throw off the duties and responsibilities thus voluntarily incurred.” See, also, Manigault v. Deas, 1 Bailey Eq. 289.
In Benjamin v. Gill, 45 Ga. 112, the executor set up title in himself against the estate. The pretension was met by the allegation that it came too late — that the executor was concluded by his acts. And the learned judge adds: “Some distinctions have been drawn as to what state of the proceedings, -what time in the history of the executorship, this estoppel commences ; ” and answers : “ There is not one [case] where the trustee has been fully clothed with the trust in which he is not bound by his acceptance.”
That is a deliberate act, by which the executor is clothed with the legal title to the personal effects and credits — or, at least, such title as may be necessary to uphold the trusts and enable him to execute them. If the executor, however, is misled by counsel as to his rights, or had not then full knowledge of them, it might well be concluded that he accepted in mistake or ignorance ; and if, on discovery of the truth, he retraced his steps, he might be relieved if he had done no acts which he could not gainsay or recall.
But when is the point reached beyond which the executor cannot go without being met with an estoppel? The argument for the appellant is, and the opinion of a majority of the court is, that the point is not reached until the executor has dope some act to undo which would prejudice the cestui que trust. If these executors had received from Montgomery, in 1872, one-half the purchase-money of “Hurricane” and “Brier-*803field,” and had paid it over to, or invested it for, Mary E. and Joseph D. Mitchell, and to the guardian of the children of Jefferson Davis, it would not be pretended that such act would not have been conclusive.' Unless the collection and distribution of a part of that fund to the legatees is different in principle from the collection and like distribution of the whole, Jefferson Davis is estopped.
In 1870, 1871, and 1872 — for three years — he participated in the collection of the interest on the debt for the purchase-money of the plantations, and paid over to the legatees the interest on their respective legacies, and retained, as guardian of his children, their portion of it. Is there any case to be found which holds that an executor who has accepted the trust, collected the debts, and paid off the legatees, can be permitted to recover back the filnd from them,.on a title which he had when he entered on the trust, and about which he then had full knowledge? Is there any distinction, in principle or reason, between that case and the one of partial payment t& the legatees ? The one is just as potent an estoppel as the other. McWilliams v. Ramsey, 23 Ala. 813.
Wherever the principle of estoppel subserves right and justice, it has application, as a party cannot stand by and culpably or negligently allow another to contract on the faith and understanding of a fact which he can contradict; if he does, he cannot dispute that fact in an action against a person whom he has assisted in deceiving. Where one so conducts himself— whether intentionally or not — that a reasonable person would infer a certain state of things to -exist, and acts on that infer-' ence, he shall afterwards be estopped to deny it. Freeman v. Cook, 2 Ex. 654. Nor is it necessary that there should have been a design to mislead. Bank v. Hazard, 30 N. Y. 226.
Surely if a man is estopped by his culpable or negligent silence (whether intended to mislead or not); whereby another believes a certain fact and makes a contract — certainly the principle applies with the more vigor xohere he is a party to-the contract into which another has thus been induced to enter. *804Nor is an express recital or affirmation of a fact necessary where it is evident, from the terms of the deed, that it was the intention of the parties that a certain state of facts should be affirmed, as the inducement to the deed. Van Rensselaer v. Kearney, 11 How. 297.
Where facts aré recited, those facts become conclusive evidence, and the party is not permitted to deny the truth of the statement. Herman on Estop., secs. 211, 212.
Where a written contract is entered into without fraud, imposition, or mistake, the parties to it are conclusively presumed to assent to its terms and legal effect. If a statement or recital is the inducement or basis of the contract, none of the parties can gainsay it. Stringhill v. Buck, 14 Q. B. 781; Bowman v. Taylor, 2 Ad. & E. 278.
Where the recital is a statement which all the parties have agreed to admit as true, it is an estoppel on all. Carpenter v. Bullen, 8 Mee. & W. 209.
The matter need not be specifically stated; it may be by express terms or necessary implication, and it binds 'the party because it must necessarily have influenced the other party. The doctrine is founded, when properly applied, on the principles of morality, and commends itself to the reason. Although it may shut out the truth in the- particular case, and is sometimes called “ odious,” it should be remembered that it debars it only in cases where the utterance or affirmation would be the denial of a previous affirmation, upon the faith of which parties had changed their position, or dealt, or pledged credit. Ber Nelson, J., in Van Rensselaer v. Kearney, 11 How. 325, 326.
Upon what principle is the creditor who accepts a trust which implies the property to the payment of all the grantor’s •debts pari passu, precluded from asserting a prior lien under a judgment in his favor? Plainly, as said in one of the cases, to do so would be “ inconsistent with the terms of the trust.” The necessary result would be, either altogether or partially to defeat the trust. When the creditor who had that advan*805tage over others deliberately consented to perform the trust, accepted the confidence of the grantor, he was conclusively held as having waived his lien and consented to accept a prorata share under the deed.
That doctrine has been announced in too many cases, and is too well supported by authority, to be doubted at this day.' The principle as fully, in reason and analogy, applies to an executor as to a trustee constituted by deed.
Courts of equity have never regarded the form of the trust as the material matter. If it arises out of the nature of the transaction and the relation of the parties, without written memorial, the consequence is the same. Thus, the auctioneer who has received goods for his customer will not be tolerated to deny the customer’s right to the proceeds by reason of his own right to the property. Osgood v. Nichols, 5 Gray, 420. The case of Dezell v. Odell, 3 Hill, 215, supra, is another apt illustration.
Devise is one of the common-law modes of assurance of title. Estates, trusts, and settlements can be as well created by will as by deed. Undoubtedly, a strict legal title to the bond and notes of the purchasers of “Hurricane” and “ Brierfield ” vested in the executors, with aright in their own names, as such, to the appropriate remedies at law and in equity for their collection. But more than that: the executors are charged with an express trust in respect of these funds of long duration — that is, the executors shall invest, for Mary Elizabeth and Joseph D. Mitchell, so much of their portion of the fund, “ in some safe stocks, as in the opinion of the executors shall be advisable, but not less than half; to be held in trust for them by the executors, the interest only to be paid to them, for twenty years.” They may change the investment, and reinvest, if safer and more productive. So, a trust is impressed as to that part given to the testator’s nieces and nephews. The executors shall make interest for them until they severally attain majority, when the capital shall be paid to them.
*806This is not the case of an ordinary will, where the whole duty of the executors is to gather in the assets, pay the debts, and deliver over the residue to legatees. But it is a case where a large fund is vested, as to legal title, in the confidential friends of the testator, on trusts which require judgment and prudence. These friends are called, in the will, “ executors ; ” but it is enjoined upon them to hold in trust, for a long term of years, the fund, and pay over to' the beneficiaries only the interest. Now, it would not be controverted that if Jefferson Davis and his associates had accepted just such a trust declared by deed, had taken possession of the bond and notes, and had dealt with them as directed, making collections and disbursements, and taking additional securities, that each, one of them would be concluded from setting up any pretensions of adverse personal claim to the trust property. Precluded for the reason founded in the necessities of society — that where property is thus confided to another, who, without surprise or fraud, or ignorance of his own claims, but deliberately, accepts the title or power over the property, and enters upon the discharge of duties in respect of it, he has made his election, and has, by his conduct, abandoned rights incompatible and repugnant to the duty thus voluntarily assumed.
The doctrine is essential to the safe transaction of the business of life. When a proposition is made, whether by deed or will, to confide to another property the control of which goes along with- the acceptance of the fiduciary relation, it is due to candor, and the confidence thus implied, that the offer shall be declined if the party to whom it is made has rights or pretensions to the property which he proposes to assert. And it is because the creator of the trust acts on the assumption that it will be faithfully executed if accepted, that the obligation is imposed on the other party to decline if his interests are in conflict; if he does not, he is esteemed as'waiving his adverse rights.
In order to- bind -the trustee by an acceptance, we do not look so much to the form of the instrument, or the nature of *807the transaction out of which the trust springs, as to his conduct. Whenever that is marked by deliberation, and is characterized by unmistakable acts of performance of the trust, so that there is no doubt about acceptance and an intent to perform, then the decisive step has been taken, which cannot be retraced.
If, as has been suggested, it be necessary that the executor, •or other trustee, should obtain possession of the property, before by his acts, he can manifest a waiver or abandonment of adversary claims in himself to it, such condition has been fully met in this case.
The testator required the concurrence of a majority of the executors who qualified in the performance of the duties enjoined. In a more than usually formal manner the executors gave evidence of compliance with this direction of the will. But three qualified, including Jefferson Davis. At their first meeting, when all were present, the papers of their testator were carefully examined; the notes, bonds, and other evidences of indebtedness to the deceased were scrutinized, and a schedule of them written down in their journal, including ^he debt of the Montgomerys. It was thus declared that these constituted part of the assets, and Dr. Bowmar was instructed, by resolution entered on the journal, to return to the Chancery Court an inventory of these credits, as assets. These proceedings made the inventory the act of the three, and the possession of these evidences of debt was a joint possession. At the same meeting a conclusion was reached as to the disposition made by the testator of these credits, and that the will, in respect of them, should be carried out according to the construction put upon it by the executors, as recorded in the journal. Afterwards Dr. Bowmar and Jefferson Davis visited the plantations sold to the Montgomerys, in order to make some arrangement for the belter security of the indebtedness. They obtained a cumulative security, in the form ■of a mortgage, on real estate not included in the sede, which ■conveyance was to the grantees in their capacity as executors. *808Afterwards Mr. Davis participated in a release of this security. When collections of this fund were made, he received part as compensation for services, and other portions as guardian of his children. And it is fairly inferable that he qualified himself as guardian of his children that he might receive for them ; for the will directed the payments received for interests on their legacies to be made bj the executors to their legal guardian. And it does not appear that they had any property or income other than from this source.
It seems, therefore, to me to be very plain that Jefferson Davis had possession of the trust estate, jointly with his co-executors, technically and completely; and, by reason of such possession and dominion, acquired by virtue of his office of executor, he, with his associates, exercised complete ownership and dominion, according to the effect and tenor of the will. Such possession and ownership is of the same virtue and effect in law to bind him as if he had been sole executor, and had done the acts enumerated as sole executor.
Dr. Bowmar, in his deposition, speaking of the Montgomery notes, says: “Seven notes, of $18,000 each, came into our hands. On the note due January 1, 1869, there was a credit of $13,860 paid to the testator. Four of these notes have been collected, together with the balance due on that of 1869, except the balance remitted. Mr. Jefferson Davis received for his children their distributive share, except for the last year, which has not been paid in full. He has received his share of the commissions as executor for two years, on the first and second annual accounts, in April, 1873, and January, 1874.”
The language of the court in Anderson v. Smoot, Spears Eq. 312, is fully applicable: “If Smoot took possession of the property in right of the complainants, as their agent ox-voluntary trustee, he woxxld be concluded to deny their title by setting up title in himself or any one else.” * * * In that case the possession had been acquired as administrator.
In substance, the same judicial declaration is made in Benjamin v. Gill, 45 Ga. 110 (cited above) : “ The executor got *809possession of the land, by virtue of his office as executor.” His possession was the possession of the estate. “ Ho cannot [therefore] - meet the action of ejectment by a claim of title adverse to the estate.”
I think, after a careful examination of the authorities, that the rule laid down in Lewin on Trusts, page 325, and Perry on Trusts, section 433, is fully sustained ; and, further, that it is just and reasonable, viz. : “That a trustee is under no circumstances allowed to set up a title adverse to his cestui que trust; but, though he may not claim against his cestui que trust, he is not bound to deliver over the property to his cestui que trust, if he cannot safely do so, by reason of notice of title in another, which is paramount to the trust.”
The conduct of Jefferson Davis during the last four years of his brother’s life, and especially since his death, covering a period of about eight jmars in all, ivas a continuous affirmation, by successive acts and declarations, that Joseph E. Davis had title to “ Brierfield,” Avith aright to dispose of its proceeds by last will and testament.
Under the influence which these acts must have produced on the minds of all who Avere beneficiaries of the will, he applied to the residuary legatees to agree to pay him $10,000 as the compromise of a claim against the testator, barred long before his death. He Avent to them as alone the owners of the fund out of Avhich payment could be made to creditors, unless, indeed, the residuum Avould be insufficient for creditors. They covenant and agree Avith him, in effect, that the executors shall paA^ out of the residuary fund this debt. The entire scope of the agreement is a pledge by the legatees, as owners, with absolute control and power of disposition of part of their property, to pay this claim ; and yet neither pending the negotiations nor at the time the contract Avas sealed did he disclose that he had a right to nearly $70,000 of the fund, on the faith of their OAvnership of which they had agreed to pay his claim.
The contract of 1872 Avas signed and sealed by the parties *810■on the understanding, as its basis, that Joseph D. Mitchell and his sister were owners, by their title as legatees, of the entire proceeds of the sale of “ Hurricane ” and “ Brierfield,” charg'ed first with the specific legacies to themselves and the children of Jefferson Davis. Jefferson Davis accepted their obligation to pay out of the surplus of that fund, as well as whatever else remained after discharging the smaller legacies. That conceded ownership referred to in the contract, and arising upon it by necessary implication as clearly as if recited in express words, was the predicate on which the legatees entered into it.
It is evident, as laid down in the authorities cited, that if the parties to the contract assumed as true that condition of fact as the predicate of the obligatory stipulation, his claim as creditor is absolutely inconsistent and repugnant to the claim set up in the bill.
The legatees would not for a moment have entertained the proposition to paj’- this debt if Mr. Davis had disclosed a purpose at some future time to set up an adverse claim to a large part of the very fund out of which they had engaged to pay him. This transaction operates against Mr. Davis both as an affirmation by conduct and by acquiescence.
Acquiescence of a party is often very strong- admission, and may also be conclusive; but to have such effect it must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. The circumstances must be, not only such as afforded him an opportunity to speak or act, but such as would naturally call for acts or reply from men similarly situated. 1 Greenl. on Ev., sec. 197.
This negotiation assumed that the grandchildren owned the fund out of which payment was to be made. It is a very “ strong admission” of the fact. If Jefferson Davis cherished an unavowed claim to the fund, “ an opportunity to speak was afforded;” and the duty arose before the nephew and niece committed themselves by the contract.
If Jefferson Davis had stood silently bjr and suffered Joseph *811D. Mitchell and his sister to have sold or mortgaged all that their grandfather had bequeathed and devised to them, it could not be doubted that he would be estopped to assert title in himself against the purchaser or mortgagee.
With how much greater force of reason does the principle apply when he is the beneficiary of the contract. In the former case- he would be concluded, because he permitted another to be misled ; in the latter the other parties are deluded and he is benefited.
Jefferson Davis, by his acquiescence and non-claim during the four years that his brother lived after the sale; by his giving bond and taking oath to execute the will; by the inventory ; by his formal discussions and decisions as to the proper construction of the. will; by his collections of money arising from the sale of the lands ; by his payment of the interest on the legacies charged on that fund — these transactions running through a period of four years after his brother’s death ; and especially by his negotiations and sealed contract with Mary E. and Joseph D. Mitchell, styled, in the writing, “ legatees under the last will of Joseph E. Davis,” the whole tenor and effect of which is that the former is legatee of the fund derived from “Hurricane” and “Brierfield” to the extent of $100,000, and the latter of $50,000, and. that they are residuaries of the balance of it — these acts of omission and commission, of silence and affirmation, conclusively estop him from asserting.the claim set up in the bill.
There is no doubt that Jefferson Davis had a well-founded •expectation that his brother would make ample provision for himself or family, either with “ Brierfield” or its equivalent. It may be put in stronger language — he never doubted that his brother would do so. Joseph E. supposed that he had •done his duty in that' respect when, by his will in 1865, he ■devised it to Jefferson’s children. Subsequently Joseph E. thought it best to give pecuniary legacies to the childi'en, the full equivalent of “Brierfield;” and Jefferson himself made up his mind to regard it.as a fulfillment of his brother’s duty *812to himself or his family, and had decided to abide by it. His conduct is not explicable on any other ground. That is conceded by one of my associates, But having deliberately done-too many acts in that line, the locus pomitentice was passed, and he cannot.retrace.
It will not do to say that estoppel has no application because nobody has been injured. If the covenant to surrender, and a direction to the executors to pay $10,000 out of their residuary fund, is not a “ prejudice” to the two legatees, or-is not a change “ of their former position,” I am not able to-conceive what fact or act would meet, the requirement of the-principle.
If the appellant’s claim be allowed, much that has been-done in execution of the will must be undone, which will materially alter the .position of the cestuis que trust, to their serious prejudice. The interest which has been collected and paid over to Mary E. and Joseph D. Mitchell must, in part, be recalled, if that shall be needed to make good to the appellant interest on the value of “Brierfield” from the time the purchaser’s notes for interest were collected, either by the testator or by the executors. And, secondly, it would annul, or render impossible of performance, the contract of 1872 with the residuary legatees; for, by it their specific legacies,, charged on the proceeds of the sale of “Hurricane” and “ Brierfield,” are declared, in effect, to be intact, although to-make them so the value of “Brierfield” were needed; and, ■further, the debt assumed to be paid by them to appellant is indicated and agreed to be primarily paid out of the $70,000 of that fund not included in the specific legacies, which would be impossible if the appellant succeeded.
With an observation on another point made in argument for the appellant, and adopted by one, if not both, of my associates, I will close this protracted discussion. It is said that Joseph E. Davis died intestate as to $70,000- — -the supposed value of “ Brierfield ” — and the clause of the will on which that argument is rested is : “In case of the failure to collect *813■the whole amount of the funds set apart for the payment of the legacies to my grandson, Joseph D. Mitchell, my granddaughter, Mary E. Mitchell, my niece, Margaret and Varina Davis, and nephews, Jeiferson and ^William Davis, I' desire that my ■executors shall make a pro-rata deduction from their several legacies mentioned.”
If just enough is. collected to pay the legacies in full, then It is plain no deduction is contemplated. The meaning is, if less than enough is collected for that purpose, then the deduc- ■ tion.shall be made. That- construction is made manifest when .read in connection with article 5, which directs the several amounts given to the legatees to be paid “ out of” this fund, the executors to set apart and secure to the beneficiaries the several amounts given to them. “And the legacies herein ■directed to be paid from the proceeds of such sale shall be a lien on, and held by, such legatees, with all the rights and privileges of the mortgagee.” Here the direction is to pay ■out of the whole fund, though it might exhaust it.
Take the whole will together, and there is no difficulty in its meaning; and that is, the legacies charged on this fund are to be paid in full, if it yields enough. If it falls short, a proportional abatement must- take place. If the fund is in excess of the legacies, then the surplus, much or little, is disposed of by the residuary bequests. Í
A careful consideration of the case has brought me to the ■conclusion that there is no error in the decree, and that it •ought to be affirmed.
The foregoing was filed as my dissenting opinion on the first hearing. I still adhere to it.
ADDENDUM.
Since the reargument was granted, counsel on both sides have jiled a letter from Mrs. Davis to Joseph E. Davis, dated November 11, 1865, and agree that it may be considered as part of the record.
*814The following extract was in a communication from Jefferson Davis to his wife, probably of date October 20,1865, viz. :
“ Brother Joe should not, I think, return to the river place. .All. is changed. He will be troubled beyond his strength by the confusion that must exist. An agent will suit the new regime much better than the old one. If he goes back, why not take the ‘ Brierfield ’ house ?' He can claim possession as owner of the land. But my decided opinion, is, in the existing condition, neither he nor Lize should stay there.”'
The extract is appended as cumulative evidence tending to- - support the conclusion which I reached without its aid.