James E. Scoby v. William O. Sweatt et al., 28 Tex. 713

Moore, C. J. —This suit was brought by the appellant against the legatees in the will of Edward Sweatt, deceased, appellant’s grandfather, to recover from them the portion of the estate of said Edward Sweatt which he claimed as a forced heir. If appellant were entitled, in any aspect of the case, to a judgment against the appellees, it cannot be said that the evidence offered by him, and referred to in the first bill of exceptions as exhibits A and B of his amended petition, could be properly excluded upon the ground of irrelevancy.

To sustain his action, it was incumbent upon appellant to show that appellees had received a larger proportion of the estate of their ancestor than they could legally claim as forced heirs and as legatees of the disposable part of his estate. The testimony seems clearly pertinent to this end. In order to make a proper distribution of the estate, independently of the will, it is necessary to ascertain and fix the amount and value, at the time they were made, of the advancements which had been received by the different heirs among whom the property should be divided.

The objection of irrelevancy was not, therefore, well taken to so much of the testimony shown to have been excluded by the second bill of exceptions as would have gone to prove the value of the advancements made by Edward Sweatt to his children, at the time they were received. But in respect to that part of the testimony offered for the purpose of proving the value of such advancements at the time of trial, the objection was well taken.

An heir, on the distribution of the estate of his ancestor, cannot enlarge his distributive share of the estate by proof of the diminution in the value of the property advanced him after its reception; nor can his share be diminished by evidence of its subsequent increased value. (O. & W. Dig., Art. 351; Chevalier v. Wilson, 1 Tex., 170; Parker v.

Parker, 10 Tex., 91;) [Paschal’s Dig., Art. 3426, Note 789.] Unquestionably, if appellant were entitled to a judgment against appellees for any part of the property which they had received under the will of their ancestor, he was also entitled to an account for its rents and profits, subject, of course, to the equitable deductions which appellees may claim, owing to the nature and character of the property, the circumstances of their possession, the absence of any demand prior to the commencement of the suit, and the expenditures and improvements which they may have made upon it.

It cannot, therefore, be properly said that the testimony, which is shown by the third bill of exceptions to have been excluded, was not pertinent to the matters at issue in the case. (Dunham v. Chatham, 21 Tex., 249.) What we have said, in respect to the evidence shown by the bills of exceptions to have been excluded, disposes of the questions presented in the first three assignments of error. The 4th assignment complains of the overruling of the exceptions to appellees’ answer.

A general exception was taken by appellant to paragraphs'of the amended answer, stated in the exception as numbered in the margin No. 2, No. 6, No. 9, No. 11, and No. 13. But, as copied into the transcript, this answer is neither divided into paragraphs, nor has it any marginal numbers. The exception, therefore, in the form presented to us, is wholly unintelligible, and must be disregarded.

It is, however, specially excepted to the answer, 1st, that the possession of the property by appellees, before the final settlement of the estate of Edward Sweatt, deceased, in the county court, was not adverse to the appellant; 2d, their possession could not give them title in less than four years after. appellant became twenty-one years of age. The first of these exceptions, considered simply with reference to the nature of the possession of one heir in respect to the rights of another, after a partition of the estate by an order of the county court, does not seem to be well taken. (Cryer v.

Andrews, 11 Tex., 170.) But whether it shall be said, abstractly speaking, that there is an adverse possession of the property as to appellant, is of comparatively little importance in the determination of the present suit. The important and vital question to the parties is that presented in the 2d exception to appellees’ answer, by which appellant maintains that his right of action is not affected by less than four years of such possession after the probate of the will and the removal of his disability from nonage.

If we are to be guided in determining the question by the general law of limitation, the right to recover the personal property is lost after two years’ adverse possession, and, as to the property of this kind, the defense must be held good. On the other hand, if effect is to be given to the purpose and object of the law in allowing four years after its probate within which parties desiring to do so may contest the validity of a will, and the benefit thereby intended to be secured to them is to be preserved, the exception of appellant should have been sustained.

It is a universally admitted principle, that statutes upon the same subject must be construed together and with reference to each other. If it can be done consistently with their provisions, effect shall be given to all the enactments on the subject. The legislative intention is to be ascertained and followed. Where there is apparent conflict, general ■ intention is limited and controlled by special intention.

Guided by these plain and simple elementary principles, there is little difficulty in concluding that the law specially prescribing the time within which suits must be brought to contest a will furnishes the rule by which we must be governed in deciding the question. (O. & W.

Dig., Art. 699.) If a cause for which a child or children may be disinherited is assigned in the will, it is expressly declared, if “ such child or children shall afterwards, and within four years after said will is admitted to probate, contend for his, her, or their rights to the estate, hy denying the existenee of said cause, it shall he incumbent upon such person or persons taking said estate to the exclusion of such child or children to prove that such cause did exist during the lifetime of the testator; otherwise said last will shall be declared void as to such child or children,” &c. (Hart.

Dig., Art. 3263;) [Paschal’s Dig., Art. 3868, Note 897, p. 644.] The plain import of this language would seem conclusive, unless we are to suppose that a child who has been disinherited without any cause being assigned in the will is not within the protection of the statute, while one as to whom cause has been assigned is protected by it. Obviously no one would insist upon such a conclusion.

The law gives to parties whose rights are to be affected by a will four years from its probate to vindicate and redress themselves; and, as a consequence, those who hold and claim under such will, hold and claim subject to the penalty of any informality, which the law permits to be shown in their title by suit brought within that time. (Wright v. Hopkins, 17 Tex., 30.) The 5th and 6th, and only remaining assignments of error, complain that the judgment was for appellees, and not for appellant. On the trial a jury was waived, and the cause submitted to the decision of the court.

We cannot, therefore, so readily perceive the grounds upon which the case was decided as if there had been a trial before a jury, and we had in the record the instructions given them on the law by the court. From the argument of counsel,'the judgment seems to have been given against the appellant upon one of the following grounds: 1. Appellant’s right of. action was barred under the general statute of limitation at the filing of his original petition. 2.

The original petition did not disclose a cause of action, and four years had elapsed after the removal of his disability of infancy before the filing of his amended petition. 3. Appellant, by accepting the legacy bequeathed him in the will, had elected to take under it, and was thereby, and from his acquiescence in the partition and distribution made under its directions among appellees, estopped from contesting it. The first of these objections has been already considered, and we will not further advert to it.

If the second were the ground upon which the case was decided in the court below, undue weight was given, we think, to the defects in the original petition. It would be useless to enter into an analysis of the allegations of the petition and its conceded and supposed defects. A petition should contain “a full and clear statement of the cause of action.” If it do not, it is the province of an amendment to supply such defect.

But it cannot be said, if the original petition is merely wanting either in the fullness or clearness of its statement of the cause of action, that the amendment curing such defect is the commencement of the suit. If it appear from the petition that the defendant is complained of for a valid cause of action, however defectively it may be presented, the statute of limitation in his favor will be stopped. (Wills v. Fairbanks, 5 Tex., 583; Kinney v. Lee, 10 Id., 155; Coles v.

Portis, 18 Id., 156.) Hor, in our opinion, is there any greater weight in the third and remaining ground of objection to appellant’s right to a recovery in this suit. Evidently, his reception of the $1,200, given him in the will, does not present a case of election to take under the will, and estop him from claiming his rights as an heir. This legacy was paid appellant in the State of Tennessee, just after he reached majority. The bulk of the property belonging to the testator, was in Texas.

Appellant may have been, and probably was, informed as to the law by which its distribution was governed, hior is it shown that he had any definite knowledge or information as to the value of the estate. B^it, aside from these considerations, he was not put to an election in receiving this legacy. There was here no inconsistent and alternative rights, between which he was required to make choice. (2 Story’s Eq., § 1075, et seq.) The money received was much less than appellant was absolutely and unconditionally entitled to.

The doctrine of election, as is said in 2 Will, on Ex., 1236, “ does not preclude a party, claiming by the will, from enjoying a derivative interest, to which he is entitled at law, under a legal estate taken in opposition to the will.” Still less reason is there for saying that appellant is estopped by the partition from contesting the validity of the will. A much broader scope has been given of late in the courts of England and this country to the doctrine of estojDpel in pais than it formerly had. It is now well established, that whenever

an act is done or a statement made by a party, which cannot be contravened without fraud on his part and injury to others, whose conduct has been induced by the act or admission, the character of an estoppel will be attached to what otherwise would be mere matter of evidence, and it will become binding upon a jury, even in opposition to proof of a contrary nature. But to constitute an equitable estoppel, the act or admission must be shown to have had a direct or immediate influence upon the conduct of the party claiming its benefit. (Watkins v.

Peck, 13 New Hamp., 360.) bio such estoppel can arise without proof of wrong on one side,-and injury suffered or apprehended on the other, nor unless the injury be so clearly connected with the wrong that it might and ought to have been foreseen by the guilty party. (Copeland v. Copeland, 28 Maine, 525; Abel v. Pitch, 20 Conn., 90.) There must, unquestionably, be some degree of wrong; for a statement innocent in itself and susceptible of being withdrawn or contradicted, unless it he made with the knowledge that it will or may be acted on, cannot be rendered binding by what subsequently occurs. (Howard v.

Hudson, 2 Ell. & Blackb., 1; Foster v. The Glen Martin Life Insurance Company, 3 Id., 48.) “Estoppels in pais,” said Lewis, J., in Billings’ Appeal, 5 Harris, 211, “are well founded, when confined to the legitimate purpose of preventing one man from being injured by the acts or misrepresentations of another. When no injury results from a misrepresentation, its decision belongs to the forum of morals, and not to the judicial tribunals.” The connection between the wrong and the injury should be direct and apparent, and such as to leave no reasonable doubt that the former is the efficient cause of the latter.

For, as the effect of an estoppel is to prevent the assertion of rights unquestionably valid, or preclude defenses which would be otherwise good, justice requires that it should not be enforced, unless sustained in every particular. (Carpenter v. Hillock, 12 Barb., 128.) In order, therefore, to raise an express or implied admission of one party from the rank of evidence to the dignity of an estoppel, it must not only be shown that its retraction will be injurious to the other party, but that the injury results from the course of action induced by the admission.

Wliatever, therefore, the degree of moral wrong on the one side and injury on the other, there will be no estoppel, unless the injury be the direct and natural result of the wrong. (Taylor v. Zepp, 14 Mo., 482; Alexander v. Walter, 8 Gill, 230; 2 Smith’s Lead. Cases, 644, et seq.) That the facts in this case are altogether insufficient to create an estoppel against appellant is much too plain for argument. He was not present at, nor a party to, the partition between the appellees. It is not shown he had any knowledge of it till long after it occurred.

They acted in the matter independently of, and without reference to, any act or admission, of appellant. The partition was made long before he received the legacy which they claim should estop him. In this there was neither fraud nor concealment on his part, nor any confidence reposed on their part, nor injury resulting from it.

As a jury was waived and the case submitted to the court, if' all the facts had been established to enable us to make a final decree, this might be done in conformity with our general practice, without sending the case back to the district court; but, as this is not the fact, it must be remanded for further proceedings. The defendants, Williams and wife, filed an answer in the nature of a cross-bill, claiming that it was the intention of Edward Sweatt to have bequeathed Mrs.

Williams an equal portion of his estate with his other children, and that' the failure to do this was by mistake, and also that her rights as a forced heir were violated by the will. A demurrer was sustained to their answer, and notice of appeal given by them; but, as they failed to perfect their appeal and to assign errors upon the proceedings had in the district court, we do not deem it proper to discuss the questions presented in the well-prepared argument filed for them in this court. The judgment is reversed, and the cause Remanded.