Willaed, J., delivered the opinion of the court. The object of the bill filed by James Mason against the executors of his father’s will and others interested in that eestate, was to have the provisions of that will declared inoperative and void,- as contrary to the statute, and the estate distributed in the same manner as if the testator had died intestate. All the parties engaged in that litigation took for granted the valid execution of the will. The sole matter in controversy which was passed upon and decided in the courts was whether the provisions in the will were in conflict with the Revised Statutes.

The courts held they were not. {Mason v. Mason's Executors, 2 Sandf. Ch. Rep., 432; Mason v. Jones, 13 Barb., 461, affirmed in this court.) The decision of that question did not prevent any of the next of kin, although parties to that suit, from contesting the validity of the will by a direct proceeding before the surrogate, in the manner pointed out by the statute. In that proceeding the only inquiry is whether the instrument in question is the last will and testament of the’ supposed testator. This goes to the factum, the legal execution of the will only.

The other action made no issue upon this point, and its admission of the execution of the will is merely argumentative. It was not put in issue by the cause, nor could it have been made a material issue in that action. One- of the principles in relation to an estoppel is, thatdt must be certain to every intent, and not be taken by argument or inference. {Co. Litt., 352, b.) The bill filed by James Mason was not filed to carry out the provisions of the will. It was filed in hostility to the disposition of the testator’s property therein made.

It did not call upon the defendants to admit or deny the execution of the will, and the answer does not admit it, but speaks of it as an instrument purporting to be the last will and testament of the deceased. This case does not fall within the doctrine of estoppel, concluding the plaintiffs from asserting the truth ; nor is the doctrine of Le Guen v. Gouverneur and Kemble (1 John. Ca., 492-502) applicable to it. I think the judgment of the supreme court should be affirmed. All the judges concurring, Judgment affirmed.