By the Court. —
Benning, J.
delivering the opinion.
Was the first ground of the motion to dismiss the rule nisi, good ?
Two reasons were urged in support of this grounds
1st. That Mrs. Gaither by qualifying as executrix añd going on to execute the will had admitted the will to be the will of Brice T. Gaither, and therefore, that she was estopped from saying, that it was not his will.
2d. That Mrs. Gaither’s application to set aside the judg-\ ment of probate, was equivalent to an application for leave to renounce her executorship; and, that having intermeddled as executrix, it could not be allowed to her, to renounce the executorship.
The first of these two reasons is true in point of fact. The only question on it, therefore is, was the admission conclusive on Mrs. Gaither ?
There are decisions to the effect, that an admission is conclusive upon the person who makes it, if it has been acted ■an by the party whom it concerns. Many of those decisions are referred to in 1 Green. Ev. § § 207, 208.
The parties whom this admission concerned, were the other legatees in the will; viz: the brothers and sisters of the testator.
But there is nothing in the evidence going to show, that these legatees by themselves or by a guardian, had acted upon this admission. There is nothing in the evidence going to show, that their situation was, in any respect, different from what it would have been, had Mrs. Gaither never qualified as executrix.
There are no facts, then, to bring the case within the principle of these decisions. And there is no decision to be found, I think, to the effect, that an admission that has not been acted on, is conclusive.
I must say too, that I am not prepared to give my assent to these decisions. They seem to me, to be calculated to overturn one of the fundamental principles of the common law — the principle, that no contract can bind that is without consideration; and, to be in conflict with another important principle of the common law — the principle, that estoppels, to bind either party, must bind both parties. See Savage vs. Jackson, 19 Ga. R. 305.
We think then that this admission was not conclusive upon Mrs. Gaither.
As to the second reason, we do not think it true, that Mrs. Gaither’s motion to set aside the probate, was equivalent to an application for leave to renounce the executorship of the will. It is true that she asked, by her motion, to have die will declared null, but she did not intimate a wish to give aip the office of executrix, in the event that the motion failed. By no means; there is no doubt, that in that case, she would have insisted upon retaining the office.
But if it were true, we are not prepared to say, that the Court of Ordinary has not the power, to accept the renunciation. The grant of power to that Court by the old Acts, is very broad. Pr. Dig. 239, 231. And by a late Act, Courts of Ordinary are declared to be, “ Courts of general jurisdiction as to testate and intestate estates.” Acts of 1855, ’56, 147.
And it would seem, that the rule of the Ecclesiastical Courts in England, on the subject, goes no further than this : That an executor who had intermeddled, shall be allowed to renounce, but that the renunciation shall not have the effect to discharge him from liabilities which he incurred, whilst acting as executor. Wms. Ex’rs, 147.
Was the second ground of the motion to dismiss the rule, good ? In other words, was the executrix, Mrs. Gaither, estopped by the judgment which admitted the will to probate ? We think not.
The judgment was a judgment, not per testes, and upon the citation of parties, but was a judgment in common form. It was a judgment, therefore, to which the other persons interested in the will, viz: the brothers and sisters of the testator, were not parties; and therefore, was a judgment which did not estop them. They might still, for example, have set up another will more favorable to themselves, if they could have found such a one.
And that which is not an estoppel, to the party insisting on it, as an estoppel, cannot bean estoppel to the other party. Estoppel, to be good, must be “reciprocal.” 2 Coke Litt. 352, a.
Is it true, that to entitle Mrs. Gaither to make a motion to set aside the probate in this case, she had first, to “ return, or surrender, her legacy,” received under the probate?
We think not. That rule is for the benefit of the executor. It is said to be a rule designed to afford a guaranty to the executor, of the sincerity of the legatee, or heir, who moves; and, to supply him with the certain means of paying the costs, in the event that the motion fails. Bell vs. Armstrong, 1 Ecc’l. Reports, 140. But when, as here, it is the executor himself, who moves, neither of these reasons can exist.
Besides, when it is the executor who moves, the rule from its nature, Cannot apply; 1st, a man cannot surrender to himself; 2dly, it is absurd to compel a man to surrender to another, as to a receiver, merely in order to benefit the man himself.
Moreover, in the present case, if the will stands, it gives to Mrs. Gaither, an estate for her life, in the whole property, and therefore, gives to her the right to the possession of the whole, and it does not appear that there remain any debts; if the will fais, the feo gives to her the entire interest in the whole property, and therefore gives to her, the right to the possession of the whole. Either way, then, she is the person entitled to possession. Why then should she be compelled to surrender the possession ?
We think then, that the Court below was right in refusing to charge, on this point, what is was requested to charge, by the counsel for the plaintiffs in error.
The only remaining exception is one to the last charge of the Court.
The objection to that charge, presented to us is, that the charge lacks clearness, and was therefore, calculated to mislead or to confuse the jury.
We think it hardly probable, that the jury misunderstood or failed to understand this charge. Therefore, we cannot sustain the exception.
Judgment affirmed.