(dissenting).
To create an estoppel there must be some act or conduct on the part of the party to be estopped, which in some manner misleads the party in whose favor the estoppel is sought and causes that party to part with something of value or do some other act relying upon the conduct of the party to be estopped, thus creating a condition that would make it inequitable to allow the estopped party to claim what would otherwise be his legal right. Farmers Elevator Co. of Elk Point v. Lyle, 90 S.D. 86, 238 N.W.2d 290 (1976); Northwest Realty Company v. Colling, 82 S.D. 421, 147 N.W.2d 675 (1967); Somers v. Somers, 27 S.D. 500, 131 N.W. 1091 (1911). In Northwest Realty, 82 S.D. at 432, 147 N.W.2d at 682, we said to constitute an equitable es-toppel
false representations or concealment of material facts must exist; the party to whom it was made must have been without knowledge of the real facts; that representations or concealment must have been made with the intention that it should be acted upon; and the party to whom it was made must have relied thereon to his prejudice or injury.
See also Cromwell v. Hosbrook, 81 S.D. 324, 329, 134 N.W.2d 777, 780-781 (1965).
The majority seem to totally ignore with gusto the element of false representations or concealment of material facts. None existed. It was Ward who kept telling the other heirs how he intended to meet the payment provisions. As executor of the estate, he was the mover and the shaker. He was privy to all the material facts. Where then was the false representation? Where was the concealment of material facts? Where was the absence of knowledge?
Even disregarding the essential misrepresentation element the other requirements for equitable estoppel are not met. The probate court in effect concluded that each of the heirs caused Ward to miss the first payment date. This is incorrect. John was the only heir who expressed to Ward his preference for a lump sum payment, and he was not aware of a family agreement concerning Ward’s purchase of the farmland. A letter dated August 13, 1982, indicated that Ward was planning to make a lump sum payment and hoped to have an FHA loan by that fall. Although the letter was introduced as evidence of a definite notification of a lump sum payment, it is clear that the language is couched in contingencies. It was “Ward’s plan” which would take effect in the event he would obtain the FHA loan. It made no definite promise or guarantee that Ward would buy the land under the will. It contained no specific statement that would bind Ward to make any payments by a particular time. Although there is evidence that all parties discussed the possibility of a lump sum payment, there was no commitment on the part of Ward to make the payment in this fashion.
Because the statute of frauds controls agreements concerning the sale of real estate it was essential that any family agreement affecting that real estate be executed *478in writing. SDCL 53-8-2. No writing was introduced into evidence which would have bound Ward to make a lump sum payment in lieu of payment according to the will provisions. Considering the evidence most favorable to Ward it is nevertheless clear that there was only general discussion with his two sisters concerning lump sum payment. There is no evidence that the sisters ever expressly agreed to waive the will provisions.
An estoppel was not created and should not be used to defeat the payment requirements clearly stated in the will. Where the intention of the testator as expressed by the will is clear and unambiguous, as here, the law must give effect thereto. In re Hurley’s Estate, 61 S.D. 233, 248 N.W. 194, 94 A.L.R. 13 (1933). In the past, this court has steadfastly enforced that intent.