Davis v. Bowmar

Campbell, J., delivered the opinion of the court. The actual possession of the land called “Brierfield” by appellant commenced in 1835 or 1836, and continued uninterruptedly to 1863, in the open and notorious and exclusive exercise by appellant of the completest acts of ownership and control of which the land could be the subject, and in a manner inconsistent with the right of any other person, with .the knowledge of Joseph E. Davis, who repeatedly, and by the most unequivocal acts, recognized the ownership of said land by appellant, warrants the declaration that there was vested in appellant a full and complete title to it by virtue of the act entitled “An act to ahiend the several acts of limitations,” approved February 24, 1844. Hutch. Code, 829. Although Joseph E. Davis sold “Hurricane” and “Brierfield” to Montgomery, and took security for the purchase-money payable to himself, he distinctly recognized and declared appellant’s right to “Brierfield,” and subsequently remitted to him the interest accruing on that part of the purchase-money — 742 — representing “ Brierfield.” It would be difficult ever to establish title to land by occupancy under claim of ownership, if the facts of this case are not held to do it. Ford v. Wilson, 35 Miss. 490; Alexanders. Polk, 39 Miss. 736; Gladney et al. v. Barton et al., 51 Miss. 216; Magee v. Magee, 37 Miss. 138; Tyler on Eject. & Adv. Pos. 864. The precise circumstances under which appellant’s possession of the land commenced are obscured by the lapse of forty years, and the light of contemporaneous facts is dimmed by the great distance of time from which we are called- on to view them; but it is certain that appellant took possession, under some sort of right in himself, of a wilderness, felled the forest, cleared the jungle, erected fences and buildings, made the place his home, cultivated it, protected it by levees, had it assessed as his own, paid taxes on it, and enjoyed exclusive possession and control of it as his own from 1836 to 1863; and, in the uncertainty, if any, from the imperfect knowledge we have as to exactly how the possession began, appellant is entitled to the benefit of the just presumption that he was holding- as owner, from having acted so long, and, from ihe beginning, as owners do, and so inconsistently with the idea of title in any other than himself. If the evidence negatived the idea that appellant first took possession in any other character than that of owner, the case would be different. Prior to the ratification by appellant of the sale b}' Joseph E. Davis to Montgomery, he was invested with a full and complete title to “ Brierfield ; ” and after his assent to that sale, he had a valid claim against Joseph E. Davis for that part of the obligation given by Montgomery representing the purchase-money of “ Brierfield.” Was appellant precluded from asserting this claim by the mere fact that he qualified as one of the executors of the will of Joseph E. Davis, assuming that the will disposes of all of the obligation of Montgomery? At common law an executor could retain the assets coming into his hands for his debt, and because he could do this he lost his claim if he had the oppor — 743 — tunity to retain and did not. By our law an executor is not allowed to retain for his claim, but must probate it and stand on the footing of other creditors. If Joseph E. Davis had received the purchase-money for “Brierfield,” and died holding it, he would have been debtor to appellant for money had and received, and appellant would have been entitled to probate his claim against the estate. But Joseph E. Davis had not collected the purchase-monejq and at his death held the obligation ho had taken for it. It is established law that a trustee cannot avail of his position to acquire title to the trust property adversely to his cestui que trust; and cannot, by virtue of his position, obtain any advantage for himself over his cestui que trust; and cannot make profit for himself out of the trust estate; and that his possession is that of the beneficiary, and for his advantage and benefit; and that a trustee, having •obtained possession of trust property by virtue of his trust character, shall not retain that possession against the claim of the beneficiary when properly called on to surrender it. But no case in England or America has been found to hold that a trustee may not appeal to the Chanceiw Court, to which he is subject as a trustee, to adjudge his rights as an individual to .an interest in the trust property, not acquired since he became trustee, nor in hostility to the cestui que trust, but had before his acceptance of the trust. Perry on Trusts, section 433, has the following, viz. : “ Under no circumstances can a trustee claim, or set up a claim to, the trust property adverse to the cestui que trust. Nor can he deny his title. If a trustee desires to set up a title to the trust property in himself, he should refuse to accept the trust.” All of the cases cited in support of this language accessible to us have been carefully examined, and they do not sustain the expression of the text in its full extent. Stone v. Godfrey, 5 De G. M. & G. 76, decides that one may be estopped by his eouduct from maintaining a suit, and that possession obtained in the character of trustee cannot be retained as one adverse — 744 — to the cestui que trust after the legal estate under which the possession was taken has determined. In the leading opinion the Lord Justice Knight Bruce assumed that Stone might have, “ at any time between the majority and marriage of his daughter, filed a bill against her for the purpose of obtaining-substantially the same relief as he is now asking, and upon the same ground,” and that “ he would have been entitled to succeed in his suit.” This is a distinct admission of Stone’s right to have sued his cestui que trust, and to have asserted his individual claim to the subject of the trust, although he had treated it as her property. But, as he had acquired possession of the land as trustee, he was disabled from saying that possession ivas for himself; and having slept on his rights from 1824 to 1852, and so acted as to induce the belief that his daughter’s title was perfect, on the faith of which the position of others was altered so that it would have been great injustice to permit him to assert his claim, on well-settled principles he was held to be estopped from asserting his title. Pomfret v. Windsor, 2 Ves. 476, Kennedy v. Daly, 1 Sch. & Lef. 381, Conry v. Caulfield, 2 Brod. & B. 272, Shields v. Atkins, 3 Atk. 560, and Longley v. Fisher, 9 Beav. 90, announce the doctrine that “ fine and non-claim ” will not bar a trust, on the principle that the trustee, having .gained possession by means of the trust, shall not, by means of that possession, defeat the title of the person for whom he had the possession. In other words, that a trustee shall not take advantage of his possession — which is the cestui que trust’s — and control of the trust estate, to cut off and bar the claim of the cestui que trust by alienation. Newsome v. Flowers, 30 Beav. 461, declares that trustees,, when sued by their cestuis que trust, cannot set up against them the adverse title of third persons. Benjamin v. Gill, 45 Ga. 110, is “ put solely on the question of possession.” The ancestor of defendants had “ got possession of this land by virtue of his office as executor,” and, when sued by his successor in the administration, they were not allowed to defeat the re — 745 — covery of the possession by an adverse title. Harrison, Admr., v. Mock et al., 10 Ala. (n. s.) 185, decides that a judgment-creditor, by accepting the position of trustee in a deed couveying to him slaves for the payment of creditors generally, including himself, waived the lien of his judgment so far as to preclude him from selling under his judgment; and to this effect are Hawley v. Mancius, 7 Johns. Ch. 184, and Rogers v. Rogers, Hopk. Ch. 523. The reason is that he has accepted a substitute for his right to proceed under his judgment, and must look to the substitute. Godwin et al. v. Yonge, 22 Ala. 553, holds that “ it did not lay in the mouth of Godwin, who was a trustee, and had taken upon himself the trust, to allege fraud in the making of the deed as a defense to the relief sought as to him, which was only the reformation of the deed and the appointment of another trustee.” It was a matter that did not concern him. Henderson v. Segars et al., 28 Ala. 352, decides that a trustee could not dispose of the trust property by sale, in direct opposition to the provisions of the instrument creating the trust, and refuse to account when called on. Irby, Admr., v. Kitchell, Admr., 42 Ala. 438, decides that an administrator who finds property among the assets of the estate and takes possession of it as such, having no claim to it himself, cannot refuse to account for it on the ground of an adverse title never asserted against him. McLaren v. Spence, Admr., 6 Ala. 894, holds that one who was administrator of two estates was estopped from 'asserting, against one who had acted on his conduct, that certain property which he had treated as the estate of one of his intestates belonged to the other. Manigault v. Deas, 1 Bailey Eq. 283, decided that neither an executor nor his representatives could deny the title of his testator to property in his possession as executor, as against creditors of the testator, and could not acquire a title adverse to his by operation of law, and that the possession of an executor is not adverse to the estate so as to mature a title under the statute of limitations. McLeran v. Melvin, 3 Jones Eq. 195, holds that one who accepted the position of — 746 — trustee, under a deed settling property to the use of a married woman, could not afterwards subject that property to his •demand against her husband, subsequently accrued. Duncan v. Bryan, 11 Ga. 63, announces that one who has accepted the office of trustee shall not, when called on by his cestui que trust to account, repudiate the trust. Jones v. Butler, 30 Barb. 641, holds that a trustee receiving property under a deed of trust cannot, when called on in equity to account, make objection that the deed Avas void, and on that ground retain the trust property to his own use. The State v. Merrill, 1 Chand. 258, decides that one Avho acquires possession of property as an agent cannot compel his principal and a third person to implead to determine their rights to it while he retains possession. White v. Swain, 3 Pick. 365, decides that an administratrix who received money as damages for an injury to the rights of her intestate, in virtue of her claim as administratrix avos estopped to deny that it Avas the estate of her intestate. Lewin on Trusts and Trustees, page 325, asserts “ the general proposition that a trustee is under no circumstances alloAved to set up atitle adverse to his cestuis que trust,” and refers to the same English cases cited by Perry, aud to no others, which, as shoAvn above, do not sustain the general proposition in all its comprehensiveness of statement. The review of cases cited from English and American reports shows that the broad assertions of Perry and Lewin must be qualified by the principles deducible from the cases they cite. No such doctrine is stated by Hill on Trustees, Avho puts it correctly, thus, viz.: “ It is one of the settled principles of courts of equity that trustees shall not take advantage of their situation to obtain any personal benefit to themselves at the expense of their cestuis que trust.” Perry on Trusts, in section 863, repeats the assertion that “ no trustee, Avhile occupying a place of trust and confidence, should be alloAved to set up an adverse title,” and proceeds at once, in the next section, to state a modification of the rule — 747 — to be “that if a trustee repudiates the trust by clear and unequivocal acts or Avords, and claims thenceforth to hold the estate as his oavu, not subject to any trust, and such repudiation and claim are brought to the notice or knowledge of the cestui que trust in such manner that he is called upon to assert his equitable rights, the statute [of limitations] will begin to run,” etc.; and this is well sustained by adjudged cases. If it be true that a trustee, by his oavu act, brought home to the cestui que trust, can, by lapse of time and operation of laAV, bar and defeat the beneficiary, and hold the estate to himself thereby, on what just principle can it be denied to a trustee to resort to chancery, prefer Ms claim, summon the cestuis que trust and co-tnistees to meet him on equal terms in this forum, and obtain the decree of the court as to his rights as an individual and his duties as a trustee, especially where, as in this case, it is by no means clear that the instrument creating the trust has made any disposition of the subject-matter of the claim of the trustee? The right of an executor to do as appellant did in this case has been expressly affirmed in Saunders v. Saunders, 2 Litt. 315, and it has been distinctly recognized by this court in Mc Willie v. Van Vaeter and Wife, 35 Miss. 428, in Avhich McWillie, avIio was executor, and had proved the will, creating him in express terms the trustee of certain slaves, when called on to deliver them to the legatee and cestui que trust, in accordance with the- will, set up a claim of title in himself to the slaves, by virtue of a deed made to him by the testator before the making of the Avill; and his right to propound his claim ivas not questioned by counsel or court, although the case Avas very much considered. Have the acts of appellant estopped him to maintain this bill? The acts relied on to do this are the recognition by him of the inventory of the assets of the testator, containing”, among other things, the obligation of Montgomery and sons to Joseph E. Davis for the $300,000 ; that at a meeting of the executors, participated in by appellant, the ivhole $300,000 was recognized by him as having been disposed of by the will; — 748 — that he received commissions as executor; that he received interest arising from the Avhole fund, as guardian, for his children, and, as executor, paid interest arising from the whole fund to the other legatees ; that he concurred in a resolution of the executors by Avliich the Avhole fund is treated as assets, and Avhich charges that fund Avith the expenses of the trust, and rendered accounts to the court in Avhich the fund is thus treated, and took his commissions out of it; and he contracted in Avriting Avith the residuary legatees to accept payment of a demand in his oavu faVor, against the testator, out of the residuary fund; and, in making this contract, recognized the residuary legatees as entitled to said excess. These acts, severally and combined, fall short of being an estoppel, because no one was led thereb}7 to act to his hurt in any matter differently from Avkat he otherwise would have done. A man may controvert his admissions and his acts, so long as doing so will not cause injury to some one who has been induced, on the faith of such admissions or acts, to do what otheiuvise he Avould not have done, and Avho will be injured by permitting such admissions and acts to be questioned. If there has been no alteration in the position of another, and no harm done by the acts of one, such acts do not constitute an estoppel, whatever weight maj7 attach to them as evidence. Injury to others, Avhose conduct has been influenced by the act or admission, as the result of such conduct so induced, is a necessary element, without Avhich an estoppel will not arise. Herman on Estop., sec. 323 et seq. There must be Avrong, coupled Avith an injury that is the legal result of the Avrong. Ib., sec. 325. Unless the act or admission has been the inducement to a course of action which Avould result in a loss if appellant Avere permitted to change his position and enforce the right Avhich he seemed virtually to Avaive by his acts as enumerated, they do not amount to an estoppel. Ib., sec. 327; Turner v. Waldo, 40 Vt. 57; Hunley v. Hunley, 15 Ala. 91; Carter v. — 749 — Darby, 15 Ala. 696; Whitaker v. Williams, 20 Conn. 98; Wallis v. Truesdell, 6 Pick. 455; 1 Greenl. on Ev., sec. 209. It may be affirmed with confidence that no injury has resulted, or can result, to any one from any course of action induced by any act of appellant. The inventorying the obligation of Montgomery and sons, the recognition that the whole fund was disposed of-by the will, the receipt of commissions, the receipt and payment of interest on legacies, treating the whole fund as assets, charging it with expenses and rendering .accounts, are all acts quite independent of the legatees, and wanting in that essential element of an estoppel that the conduct must have been with the intention that others should act on it, or calculated to induce a reasonable man to believe it was so meant (Big. on Estop. 480), as well as in that other •equally necessary element that others must have been induced to act upon it, and that injury will result from such action thus superinduced, if an estoppel shall not be held to arise. 'There was no intention that any one should act upon any of these things, nor does it appear that any one did so act. 'The inventory was required by law, and properly embraced the obligation of Montgomery and sons which was payable to •Joseph E. Davis. The declaration of the executors that the whole fund was disposed of by the will was but an opinion; •and the resolution to charge debts and expenses on the excess •of the fund after payment of legacies was but the utterance of an intention to pay these things from this particular source. The receipt of commissions, and the receipt of interest as guardian of his children, and the payment of interest to other legatees, were but in accordance with law, and possess none of the elements of an estoppel; and so of rendering accounts to the court. These things did not induce any course of conduct as their legal result which requires that appellant shall be held to the •waiver of his rights in order to prevent injury to those, thus pursuing such course of conduct. There has not been an alteration of the position of any one to his injury in conse — 750 — qiience of these acts of appellant. If none of these things had occurred, the rights and the position of all concerned, as to the subject of this controversy, would have been the same they are now. The contract made by appellant with the residuary legatees-lacks an essential element of estoppel in that it in .no way injured the legatees in reference to the subject o.f this suit.. This contract amounted to an agreement by the residuary legatees to recognize appellant’s claim so far as to consent for it to be paid out of the residuary fund after payment of' taxes, general debts, expenses of administration, and interest on the legacies chargeable on the bond of Montgomery and sons; and on the part of appellant it was an agreement to-accept payment of his $10,000 demand if there was anything left. This contract had no reference to anything but the $10,000 claim; nothing else was in the contemplation of the parties. Appellant has not received anything under it. Undoubtedly there is much in the conduct of appellant, before-exhibiting his bill, which is inconsistent with his present attitude as a complainant; but we fail to find in it an estoppel to maintain his suit. It is not for us to find an explanation of' the reasons for the course of appellant in withholding .his assertion of his rights as he did, and proceeding with his duties-as executor in a manner to signify that he waived his individual rights. As his conduct does not amount to an estoppel, it is-to be considered only as evidence against the claim set up in his bill; but, as we have seen, the evidence of the right of' appellant to claim that part of the obligation of Montgomery and sons representing the value of “ Brierfield ” is entirely satisfactory, and far outweighs the negative testimony arising from the passiveness of appellant as to his claim, and his acts-in dealing with the estate. It is evident that appellant hesitated to assert his claim, remained silent about it, and so acted ,as to negative the idea, that he had any; but because of this alone he is not precluded from changing his purpose. Langdon v. Doud, 10 Allen, 433. — 751 — It is probable that appellant had deliberately resolved to submit in silence to the dispositions of the will, and to surrender his own claim, from considerations of delicacy or prudence ; but a locus pcenitentice existed so long as he could change his-course without being charged with having misled any one concerned to his prejudice by such former course. The decree dismissing the bill is reversed, and the cause remanded, to be proceeded with in the Chancery Court in accordance with this opinion. Upon the application of Harris & George, of counsel for the appellees, a reargumeut of the case was granted. Adverse counsel have a chapter in their printed argument headed “The Argument as to the Entry.” When it is considered that the only evidence relating to the entry, that is — the beginning of the occupancy — as distinguished from the rest of" it is that it was the result of an absolute gift, their boldness becomes admirable ( ?). Their argument is that the law presumes entry in subordination to title, and, therefore, the parol gift being ineffectual to convey title, Mr. Davis’ entry and. subsequent occupancy was permissive. This is known in logic as the fallacy of “petitio principii.” It is no answer to this, criticism to reply that the onus is on us to show that the entry was, in its inception, under a claim of ownership. We have-conceded it. We have assumed that onus. We have borne it. We have shown that it was so understood by both the parties. We have shown that its occupancy, in its inception, was accompanied by unequivocal acts of ownership. There is-no distinction between his occupancy at first and afterwards. His claim of ownership was coincident with his entry. His entry was in consequence of his haviug acquired a claim of ownership, and was the act of appropriation. By such an argument as we are criticising every adverse possession could be converted into a permissive one. When resort is had to. adverse possession, it is because the party is without the means752 of showing, by proof aliunde, that he had a legal right to make the entry. The entry and the continuous occupancy are not separate things, either in law or fact. They constitute, in law and in fact, one continuous act. The entry is but the beginning of the occupancy. The attempt to separate them into two distinct acts and facts is the purest sophistry. To say that “ the character of the occupancy must be interpreted by the character of the entry, and the latter not by the former,” is an ingenious and plausible, but specious, manner of saying that an occupancy must not be judged of by its own visible character when it begins, but that there must be proof aliunde to show why and how it begun. We say that, like all other facts, it may be shown either way. If we show a parol gift first, we thereby show the nature of the entry, and thus determine the character of the occupancy begun in pursuance of it. If we show an occupancy bearing in its inception all the characteristics of ownership, we then show its character, including the entry, which is but the beginning of it, by its own visible, inherent, and inseparable properties. The latter is the direct proof, the former is the ' showing cause of the entry ; and, judging of it as an effect by the character of the cause, both modes are equally admissible and equally effectual. We have resorted to both, and our proof is compounded of the multiplied strength of these factors. In replying to the arguments in support of the estoppel invoked against Mr. Davis, we will premise the following principles: 1. Estoppels by Writing. — 1. If the admission was itself the subject-matter of the contract so that it was the consideration given by one of the parties, then the estoppel is complete. • 2. If the admission was not the subject-matter of the contract, though assumed either expressly or implied, it is conclusive for the purpose of the contract only, and then only so far as necessary to maintain its validity and enforce its obligation. — 753 — 3. The acceptance of a mortgage or deed conveying one’s own property is not an admission of right in the grantor, and, so far as it works any estoppel, it is limited to the purposes and objects of the instrument. 4. If a deception were used to obtain an executory contract, it would constitute an infirmity in the contract rather than an ■estoppel. 5. If such a contract should have been executed, the fraudulent deception would entitle the injured one to affirmative relief and reimbursement. 6. The alleged deception must have actually deceived. 7. It must, also, either have been actually intended to de- ceive, or the circumstances must have been such that the intention will be presumed. * 8. The deception must have been the proximate cause of the contract. II. Estoppel by Matter in Pais. — l..The admission must have been made with a full knowledge of the right alleged to b.e precluded. 2. There must have been an intention to deceive and defraud, or there must have been an obligation to inform and prevent deception. 3. The party invoking the doctrine must have been in fact deceived. 4. The party deceived must, in consequence of the deception operating as a proximate cause, have been induced to a course of action which must result injuriously to his interest unless the estoppel is enforced. 5. The injury must be the immediate effect of the course of conduct to which the party was induced. 6. The admission must relate to a fact. If it is inferential, therefore, and may as well be referred to the intention to waive a right as to an admission of its non-existence, estoppel will not result. 7. “The injury must be co-extensive with the estoppel.’.’ See Hawes et al. v. Marchant, 1 Curt.' 114. — 754 — 8. And if it is not, the estoppel will be limited so as to compensate the injury if already sustained. 9. It is always a shield — never a sword ; it is a fundamental rule that it operates to protect from loss — never to acquire a gain. These principles and limitations furnish a complete answer to the arguments founded on estoppel, by whatever name it may be called. In the argument at the bar, our learned adversary, being pressed to point out the essential elements of estoppel in this case, denied that he rested his defense on the principles of estoppel, but said that it was founded in the doctrine of trusts. We are not particular about the name which is giveu to the defense, but we deem it proper to premise that a change of name is not an answer to an argument directed against an attempted misapplication of unchanging principles to unchangeable facts. These facts, whereby one may be precluded from showing the truth or asserting a right, must be such as to comprise in their relation certain elements essential to what is usually termed the doctrine of estoppel in pais, or equitable estoppels. Whether it be an estoppel by waiver, by election, by acquiescence, by ratification, by silence when one ought to speak — whatever form it may assume in the infinite variety of transactions and relations between men, the principle by which the estoppel is enforced is, in substance, the same. It is not the result of a statute, nor of precedents, nor of ancient maxims of the law, nor. .of inexorable rules of any kind. It had its origin in truth and justice, and has been sustained in its growth by a strong instinctive tendency in just judges to so administer the law that .justice shall be attained in the particular case. Joseph E. Davis sold the property of his absent and imprisoned brother, and took security in his own name, in a note given for that and some of his own property. He assumed to be acting in trust for Jefferson, and on that ground sought and obtained his ratification. Thus Jefferson Davis could never again recover his own property from the purchaser. He — 755 — could look alone to the fulfillment of this voluntarily assumed trust. Here were, indeed, all the elements of estoppel. Collins v. Tillon, 26 Conn. 374. Now, because Jefferson Davis accepted the office of executor, in compliance with, the dying request of his brother, his legatees — mere volunteers and objects of bounty, benefited and not injured by the acceptance— repudiate the most sacred of trusts, assumed and recognized by their benefactor up to the last moment of his existence, claim to be released from an estoppel of the very highest dignity in law and in morals, and are, at the same time, clamoring about “ fidelity to trusts.” It is not attempted to show that there exists any just consideration for the confiscation of complainant’s property, nor any for its donation to the defendants. He has done them no injury, by silence, waiver, acquiescence, or acceptance of trusts, for which he is called upon to' compensate or indemnify them. He has not beguiled them into any act against the injurious effect whereof he is called upon to guard them, by transferring his own fortune to their use. He has not acquired an advantage over them so that they, cannot defend against his claims if they are in any respect unjust or unconscionable. None of these things, which, as we have seen and are able to understand, sometimes justly preclude rights, are, or can be, asserted against him. The argument is that “the integrity of the whole round of fiduciary relations demands the application of the rule.” It is called a “ wise, conservative doctrine, venerable, nay, almost sacred, as it stands in the body of our jurisprudence.” It is said to rest upon “ broad principles,” and its enforcement is a “ great preventive and conservative remedy, founded in an elevated and enlightened judicial policy.” These are mere figures of speech, embodying sufficient beauty to- attract, and sufficient force to impress, but not sufficient plausibility, it is hoped, to impose upon this high and learned court. The “ purity and integrity of judicial administration ” is a good thing, and “fidelity to trusts ” ought to be enforced, in the interests of justice and morality, with an unfaltering — 756 — hand; but parties ought not to be heard in any court, seeking to make a conquest of another’s property, on the pretense of •upholding the “ purity of judicial administration,” or of enforcing “fidelity to trusts.” This would be to “steal the livery of Heaven to serve the devil in,” and would be enforcing “ fidelity ” after the manner of the natives of India, who threw the living body of the widow on the burning funeral pile of her dead husband. The application attempted to be made of this “ doctrine of trusts ” in this case is itself a refutation of it as contended for by defendants. The result of its application to this case reduces it to the argumentum ad absurdum. If any such “venerable doctrine” had come “down to us through man}'’generations and a long line of decisions,” we should confidently ask the court to lay it aside among the venerable rubbish of the past. But the real doctrine, which is sought to be misapplied to suit the purposes of the defense, is just and reasonable. We desire no relaxation of the strictest rules, but rather a close adherence to every rule and to every doctrine which will in- ' sure a just judgment according to the very right of this cause. It has long been the greatest reproach to the common law that ■judges have acknowledged themselves so hampered by some of its rules of procedure and of administration that they were unable to give just judgments. Never before has a similar charge been made against our system of equity jurisprudence. The highest boast of its learned chancellors has been its unlimited power to do absolute justice. In this forum the shackles which unjustly impede one at law are dissolved, and fall to the ground. The hands of the weak are here strengthened, that they may wage a just cause in equal combat with the strong. Here the feme covert, the lunatic, the infant of the tenderest years, may be sued, and their rights may be adjudicated. Controversies between trustees and their cestuis que trust have been part of its original and peculiar jurisdiction from time immemorial. Its powers are adequate ' to do justice between all parties, whatsoever may be their re — 757 — lations. Misfortunes of mistake, error, and ignorance are not beyond its power to relieve ; and tbe ingenuity of fraud can invent no device which it may not strike down. Its forms and modes of procedure,.and its rules and doctrines, are all of its own creation, made to facilitate, not to impede or prevent, the administration of justice. The foundation of this argument, on what is called the “ doctrine of trusts,” is a passage found in Lewin on Trustees, page 325, to the effect “ that a trustee is under no circumstances allowed to set up a title adverse to his cestui que trust.” This is Lewin’s own saying, and is contradicted in his next sentence. In our argument before the court we made a critical analysis of all the cases cited in support of this observation, and we do not fear to assert that not one of them sustains the text, if it is to be understood as meaning broadly what it says. From an examination of the cases cited, we conclude that the text is to be construed as referring to an attempt on the part of the trustee to set' up a possession acquired as trustee as adverse, by claiming that his possession was in his own right. That, at most, is the extent to , which his citations go. All of the cases cited in Lewin, and all of those added by counsel, belong to one or the other of the following classes: 1. Cases where the trustee undertook to set up his possession as adverse. 2. Cases where there existed the other essential elements of an estoppel in pais. 3. Cases where, the trustee sought to invoke statutes of limitation and non-claim, on account of the duration of his possession. In all such cases the trustee is rightly estopped from claim- . ing the title to the property, for the purpose of showing that his possession is to be referred to his claim of ownership, in order to set up the bar of statutes, and thus actually acquire a title. The remedies afforded in the enforcement of rights are — 758 — themselves valuable rights, protected, in many instances, by the organic law. Hence it is no misnomer to speak of these remedies as rights. Where, liowevér, it becomes important, as it now is, to' distinguish the right from the remedy, the mental process necessary to accomplish it is so simple as to render any reasoning unnecessary, if not impossible. Keeping this distinction steadily in view, we assert with confidence that whenever an adjudication has been made by any court of respectable authority which seems to have declared the right of the trustee lost, waived, or forfeited by becoming a trustee, it has refoi’ence to a right to a remedy, and not a right as distinguished from a remedy. The case of Saunders’ Heirs v. Saunders’ Executors, 2 Litt. 315, is a forcible illustration of the distinction which we take, and is a complete refutation of the idea that the trustee loses his property, and the cestui que trust is permitted to win it, by this novel “doctrine of trusts.” This case, while denying the executor’s right to sue his co-executors for property which had come to him as one of the executors, on the ground that his right of action was extinguished, and while denying his right to bring to his aid his long possession,'with assertion of his individual claim, decided that he might maintain “ a suit in equity to which the devisees, as well as the other executors, might be made parties, and obtain a decree quieting the claim, exempting the executor claiming from holding the estate in his fiduciary character, or accounting.for the profits.” That the trustee yields his remedies merely, and no part of his rights, by becoming trustee, is illustrated by several of the cases cited by adverse counsel. The case of Manigault v. Deas, Bailey Eq. 283, illustrates three of the propositions of law and equity jurisprudence which we have contended for. The three head-notes marked “ 2,” “ 3,” and“ 7 ” contain a statement of them. The one marked “2” is simply based on the doctrine that the executor can make no profit. It is precisely analogous to the case cited in Irby, Admr., v. Kitchell, Admr., 42 Ala. 447. The syllabus marked “3” is on the question — 759 — of adverse possession, when an executor seeks to set it up. The ■case above cited from Kentucky elucidates the question fully. No executor can, of course, obtain title by length of possession. The possession follows the right, and will be referred to the character in which he holds it. . The syllabus marked “ 7 ” is a most emphatic refutation of the proposition of the defendants. An executrix was there allowed to insist upon, and establish, her own claim to the property against her testator. The- foregoing case of Saunders’ Heirs v. Saunders’ Executors is pertinent to other questions which have already been discussed. It discusses the following propositions : 1. The possession will be referred to the person in his character as executor or as an individual, as the right of the matter maj7 appear. There can be no adverse possession, and neither the executor nor the estate can be barred by lapse of time. 2. The right to prosecute an action against the estate of a testator is extinguished by' assuming executorship; and, therefore — 3. “If one of the executors claims in his own right part of the property of the testator which is in his hands as executor, his remedy is by bill in equity against his co-executors and the devisees ;” and — 4. “An executor may retain as his own any article of his own property which comes to his hands as executor.” The cases of Harrison, Admr., v. Mock et al., 10 Ala. 185, Hawley v. Mancius, 7 Johns. Ch. 184, Rogers v. Rogers, Hopk. Ch. 523 — all citations of appellees — show that there is no loss of a right, but a waiver of a remedy. Justice and equity are still administered, and the trustee is permitted to have and retain whatever he may be entitled to, according to the very right of the matter. For the purpose of torturing • the compromise of the $10,000 claim into an estoppel, it is said by counsel for appellees that one of the considerations of the argument given by appellant was “ the concession, as the basis on which the con — 760 — tract Avas made, that all the debt of the Montgomerys belonged to the estate, and that, at all events, the defendants should receive their specific legacies in full.” Let us see Avhat foundation there is in the agreement or the record for such a statement. Mitchell and Hamer, defendants, in their ansiver, under oath, sajr that, at the time this contract Avas made, “ they had no notice or suspicion that Jefferson DaAds had, or claimed to have, any interest in ‘ Brierfield,’ or its proceeds.” Noav, in Avhat sense can an admission on a subject of Avhich the parties to the contract now claiming the benefit thereof Avere totally ignorant, be called a part of the consideration of the contract, or a concession made for value? Yet upon this fallacy rests most of the argument of the learned counsel on this branch. According to their vieAY, defendants Avere induced to enter into a contract by a concession as to a claim of Avhich they had no suspicion, and that concession made after they had signed an agreement not containing it. Under a reasonable and proper construction of said contract there is no agreement that the interest due by B. T. Montgomery and sons shall be used to pay taxes, genei’al debts, and necessary expenses of the estate, and the interest on the respective legacies made chargeable by the Avill upon the funds arising from Brierfield aud Hurricane plantations; but only that these shall, out of the interest of the fund, have a preference of payment over the claim of the complainant then being adjusted. The fact that appellees “had no notice or suspicion that Jefferson Davis had, or claimed to have, any interest in the ‘Brierfield,’ or its proceeds,” is not only conclusive against the construction attempted to be put upon the agreement, but the “concession made for value” becomes a physical and moral impossibilit3r. Such a pretense should justty draAV suspicion on their complaints of being misled. Noav, if it had been true that this implied admission was the consideration of the contract, if they had agreed to pay 110,000-in settlement of the present claim of Mr. Davis, if his rights to the pro — 761 — ceeds of “ Brierfield ” had been within the contemplation of the parties, the subject-matter of this contract, the thing settled and compromised, the argument would be good. But if it is argued, further, that although, it is not true that this implied admission was part of the consideration, yet that the. contract was made on the basis of the assumption that the appellees, owned all the proceeds of the land, this argument proceeds upon a false theory of the law. Its major premise is not true. Let us state it: Every fact treated as true in a contract, though not of its essence or subject-matter, is forever afterwards held to be conclusively true between the same parties in controversies foreign to the subject-matter of the contract. We challenge the proposition as unsound in reason, and as distinctly negatived by the text-writers and judicial decisions. The proposition will be true if you strike out the words after “parties,” and in lieu thereof insert the qualifying words, “ for the purposes of said contract — that is, to maintain its validity and enforce its obligation.” In Bigelow on Estoppel, page 286, it is said : “ The effect of the estoppel, further, is limited to questions concerning the deed. That this limitation prevails, preventing the estoppel from having a collateral effect, appears from many cases.” Carpenter v. Butler, 8 Mee. & W. 209; Southeastern Ry. Co. v. Warton, 6 H. & N. 520; Norris v. Norton, 19 Ark. 319; Reed v. McCourt, 41 N. Y. 439; Herman on Estop. 267, sec. 246; Hays v. Askew, 5 Jones L. 63. In the last ease Judge Pearson said that, to render a recital an estoppel, even in a controversy about the subject-matter of the deed, it must show that the object of the parties was to make the matter a “ fixed fact,” as the basis of their action. In Reed v. McCourt, supra, speaking of the same limitation, it is said that jf the rule were otherwise the term ‘ ‘ odious ” “ would but feebty express the contempt which ought to exist against the rule.” Let it be answered, then, whether this estoppel has such potency as to take the $70,000 away from Mr. Jefferson Davis — 762 — without compensation, and give it to the defendants without consideration. It becomes a question, then, whether this estoppel has such properties that it may impoverish one man to enrich another. We have always been taught to understand that estoppel never has bettered any man’s condition ; that it never has armed one with a sword with which to make conquests, but only with a shield with which to defend that which is already his. Where a third person has made off with money or goods or property, it settles who shall sustain the loss between the two others, in a proper case ; but never, under any circumstances, where no loss is necessary, does it take from one and give to the other. If this effect results from an attempted application, it is a waste of time to reason, to consult authorities, to consider arguments. If the compass should point to the rising sun, no one would give credence to its indication. It is impossible to conceive a case where one could be tricked out of his estate by estoppel, so that it'would go to another as a clear gain. The one might well lose it by negligence or fraud, or attempted fraud, but never by an estoppel set up against him by a person thus seeking to add it as an acquisition and accretion to his own estate. From the inception of this case complainant has been confronted at every step by this hydra-headed monster, estoppel — professing to hold only a shield, but always wielding a sword; pretending to protect only, but always reaching out to grasp ; now seeking, under the guise of a rigid executioner of the law, to capture and appropriate, by reason of its inexorable rules; again, proclaiming itself the minister of pure morality and justice, asking to be made rich at appellant’s expense, to vindicate the principles of abstract right; now asking for his property the better to maintain the fidelity of trusts and the pure administration of the law. In whatsoever guise he has appeared, bristling with the keenest weapons of offense concealed beneath his armor-plates, talking of reason and logic, yet ever seeking to delude by fallacy — 763 — and sophistry, he is always striving —now boldly, now insidiously— to acquire appellant’s property, by every effort which ingenuity can devise, and with every argument which can be suggested by the exigencies of a relentless purpose. '. So surely as we may know a tree by its fruits, so surely do we know this is no estoppel. Chalmers, J., delivered the opinion of the court. On November 19, 1866, Joseph E. Davis sold to Montgomery and sons two contiguous plantations, in Warren County, known respectively as “ Hurricane ” and “ Brierfield,” for the sum of $300,000, due in ten years, with six per cent interest from date, the interest payable annually. The bond of the purchasers was taken for the principal sum, and nine notes of $18,000 each, due at the expiration of each year, were delivered for the interest; and, to secure payment of the whole, a mortgage was executed on the property conveyed. The bond remains wholly, and the notes partially, unpaid, and Jefferson Davis brings this bill against Montgomery and sons, and the personal representatives and 'legatees of Joseph E. Davis (now deceased), seeking to recover in his own behalf such portion of the sum due as represents the value of “ Brier-field,” alleging that he was, and that Joseph E. Davis was not, the owner of that plantation. .He is himself one of the executors of the last will and testament of Joseph E. Davis, by the terms of which the whole of these notes are supposed to have been devised to the spe — 764 — cial and residuary legatees named in the will. Was Jefferson Davis the'legal owner of “ Brierfield? ” If so, he is entitled to the relief prayed, unless his conduct has been such as to estop him from claiming his own, or unless his position as executor forbids the assertion of his legal rights. Three questions, then, are presented by the record : First, was Jefferson Davis the owner of “Brierfield?” Second, has his conduct been such as to estop him from claiming its proceeds ? Third, Does his position as executor debar him from asserting his rights ? Each of these questions depends upon facts and principles distinct from, and independent of, those which control the others ; and nothing but confusion can result from mingling them together. Wé will address ourselves, first, to the question of ownership, as being the primary and fundamental one in the case. It is admitted on one hand that Jefferson Davis held actual possession of “ Brierfield ” for nearly thirty years. It is admitted on the other that he had no deed nor any written obligation to convey the title, but that the record or paper title was always in Joseph E. The claim on his behalf is that he entered under a parol gift from Joseph E., which was either wholly gratuitous, or partly gratuitous and’ partly in liquidation of an indebtedness due him from Joseph E., and that the possession taken under this parol gift ripened, by lapse of time, into a perfect title. The claim pn the other hand is that he entered and held by permission of Joseph E., in subordination to his title, with an express or implied understanding that he was to enjoy the possession and usufruct as long as he chose, but without claim of ownership; or any pretense of right adverse to the record-title. It is conceded on one side that, if he entered as tenant, his long possession gave him no title. It cannot be denied on the other that, if he entered as owner, his title became perfect and indefeasible by virtue of the act of 1844. Hutch. Code, 829. Our predecessors have twice, declared that that statute was something more than — 765 — a statute of limitations ; that, by its terms, “ ten years’ actual adverse possession by any person claiming to be owner ” gave a perfect title, which could be asserted after the possession had been lost, in any court, or in any proceeding whatever. Ellis v. Murray, 28 Miss. 129; Ford v. Wilson, 35 Miss. 504. There must, however, be “an actual adverse possession,” “ by a person claiming to be owner; ” and the rules of law which determine the meaning of these words have not been altered by the statute. Before entering upon an investigation of the facts it will be well to glance, for a moment, at such of those rules as bear upon the present controversy. To acquire a title by possession two things must concur, to wit, an occupation, actual or constructive, and a claim of ownership. Neither is effectual without the other. No continuance of occupation, no matter how long protracted, will avail unless accompanied by claim of title; and every presumption of law is that the occupant holds in subordination, and not adversely, to the true owner. Not only does the law presume that he who has entered without title has done so in recognition of, and subordination to, the title of the owner, but, having affixed this prima-facie presumption to his entry, it will not allow him to convert it into an adverse one except by acts which plainly demonstrate its hostile character. Where the entry is shown to have been permissive, its origin will give tone and character to all subsequent acts ; but where the nature of the entry is unknown, its character may be determined by the subsequent acts, the legal presumption always being in favor of a subordinate entry and holding. It devolves, therefore, upon him who claims that his possession has been adverse to establish that fact to the satisfaction of the court or jury. This he may do in many ways. Where his occupation has been constructive only, it is usually necessary to show an entry under some documentary muniment or color of title, though it need not be perfect or valid. But where his occupation has been actual, open, and noto — 766 — rious, it may be shown to have been adverse by his acts, or even by his declarations, where these so connect themselves with his possession as to amount to verbal acts. The acts and declarations do not, of themselves, constitute adverse possession, nor can they change a permissive into a hostile occupancy, but they are evidence of the character of the possession ; and if sufficiently decisive, and not shown to have been commenced or continued in recognition of the true title, they may afford sufficient proof to establish a title by limitation. Tyler on Eject. 864; Humbert v. Trinity Church, 24 Wend. 587; Smith v. Teller, 1 Johns. 180; Ford v. Wilson, 35 Miss. 505; La Frombois v. Smith, 8 Cow. 587. What acts will suffice to evince an adverse holding must depend on the circumstances of each case. They must be such as indicate title rather than tenantry, ownership rather than dependence. In old and well-settled countries the cutting of timber, the digging of turf, and the like have been held sufficient. Stanley v. White, 1 East, 332. Everywhere it will be agreed that entering upon wild land, reducing it to cultivation, building fences, erecting houses, draining marshes, assessing it and paying taxes in the occupant’s own name, and continuously occupying it as a family residence for a long sei’ies of years, are potent circumstances, and, as between strangers, in the absence of other evidence, will usually be accepted as conclusive proofs of an adverse holding. Aug. on Dim., sec. 391, and note; Overfield v. Christie, 7 Serg. & R. 177; Lessee of Payne v. Skinner, 8 Ohio, 159; Bowman v. Grubbs, 26 Ind. 419; Kent v. Har-court, 33 Barb. 491; Ford v. Wilson, 35 Miss. 505. Among relatives, and especially between those occupying parental aud filial, or gziasi-parental and filial, relations, those circumstances would not be deemed so convincing, because they may be consistent with a mere permissive enjoyment of a usufructuary possession. But if to acts like these, upon the — 767 — part of the occupant, there be added evidence of a parol 'gift by the owner, coupled with subsequent acts on his part in recognition of ownership in the occupant, no reason can be perceived why these circumstances should not be held as satisfactory between relatives as between strangers. No principle is better settled than that a parol gift of land may ripen, by actual possession, into a perfect title. An entry under such a gift, though permissive and friendly in the popular-sense, is hostile and adverse to the paper title in a legal sense — that is to say, it is an assertion of ownership in the occupant. Sumner v. Stephens, 6 Metc. 337; Syler v. Eckhart, 1 Binn. 378; School District v. Blakeslee, 13 Conn. 227; Moore v. Webb, 2 B. Mon. 282; Comins v. Comins, 21 Conn. 413; McGee v. McGee, 37 Miss. 138; La Frombois v. Jackson, 8 Cow. 589; McCall v. Neely, 3 Watts, 72; Ashley v. Ashley, 4 Gray, 197. ■ Undoubtedly, a parol gift of land, as affording the basis of a title made perfect by lapse of time, may be shown by parol. Undoubtedly, if the death of the donor, and the legally imposed silence of the donee, render it impossible, with absolute certainty, to demonstrate the gift by showing the exact time, place, and woi'ds at which and by which it ivas made,, we may resort to the acts of the parties, and to their declarations where adverse to their interest, or where so made as to become a part of the res gestee. Let us appty these principles to the facts of the case, with a. Aiew of determining Avhether Jefferson Davis entered upon, and held, “ Brierlieid ” as owner, or as tenant at Avill of his brother, addressing ourselves first to a consideration of the facts up to-the time when the property fell into the hands of the United States government, and then to those thereafter transpiring. Joseph E. and Jefferson Davis were brothers. The former was tiventy years the senior of the latter, and, in many respects,, stood in loco parentis to him. He Avas already a middle-aged man, of large wealth, a retired lawyer, living at “ Hurricane,”' — 768 — when, in 1833, Jefferson, who had resigned a commission as lieutenant in the United States army, came to reside here. Jefferson was possessed of no visible property save one negro man, but he had an unsettled claim against his brother for his interest in the paternal estate, which had been appropriated by Joseph E. The amount of this claim is not known, but it was not large. “ Hurricane ” at that time consisted of 4,000 acres. In 1835-6 Jefferson took possession of that portion which, from that period, received and bore the name “ Brier-field.” It embraced 800 or 900 acres, and, from its first occupation by him, ivas segregated from “Hurricane” by boundaries distinctly marked and frequently pointed out by the two brothers to various persons. When Jefferson took possession, it was a wilderness and a jungle. He held it by the possessio pedis for twenty-seven years, and converted it into one of the most highly improved and productive plantations in the state. - In favor of the theory that his occupation was in subordination to the paramount title of his-brother, the following facts are relied on: 1. No written evidence of title was ever delivered, though both the brothers were men of high intelligence, and must have known the necessity of such a writing. 2. The gwasi-parental and filial relations that existed between the brothers is eminently suggestive of a permissive enjoyment of the possession and usufruct only, and is consistent, it is said, with all the subsequent acts of the parties. 3. Joseph’s slaves assisted largely in the early clearing of ■the land and building of houses. He aided, also, with his money in the erection of the more costly residence that- was afterwards built; and this house, as originally planned, was intended to form a double tenement, so as to afford a home for a widowed sister of the two brothers. This scheme was abandoned during the erection of the house, and the sister never resided there. — 769 — 4. Though Joseph usually spoke of “Brierfield” as the property of Jefferson, he told his friend Hon. John Perkins, in a private conversation in 1855, that he had never conveyed the title, and that he, and'not Jefferson, was the owner of the property. He expressed a repugnance to its ever falling into the hands of Mrs. Jefferson Davis, or any member of her family. The brothers were not friendly at this time, on account of a misunderstanding originating through Jefferson’s wife. 5. Mrs. White, a niece of the two brothers, testifies that, though the place was usually spoken of as Jefferson’s, it was well known in the family to be the property of Joseph. In 1852 she heard the wife of Joseph, at a time when he was quite ill, urge him to make a deed to Jefferson, which he refused to do. Neither Jefferson nor any member of his family was present, and there existed at the time an entire, though temporary, alienation between the brothers. This witness also testifies that in 1870, a short time before the death of Joseph E., she urged'Jefferson to apply to nim for a deed, which he declined to do, through motives of delicacy, as he said ; but after his brother’s death he expressed to her his regret that he had not acted on her advice. 6. In 1847 Joseph E. filed, under oath, a bill in the Chancery Court of Warren County, enjoining the collection of a levee tax which had been assessed against ‘ ‘ Hurricane ’ ’ and “ Brierfield,” in which he set forth the lands composing both as being his property. Jefferson was at the time in Mexico, though he returned before the conclusion of the suit. Joseph was acting, during his absence, as his general agent, and there was annexed to the bill an exhibit showing that the tax on “Brierfield” was assessed against Jefferson. The suit progressed after Jefferson’s return without interference or intervention by him. These, we believe, comprise all the facts occurring previous to the seizure of “Brierfield” by the Federal authorities — 770 — ■which tend to show continued ownership in Joseph. It is at once apparent that several of them, however pertinent to other questions in the case, are not admissible on an issue of title, since nothing is better settled than that title cannot be affected by the acts or declarations of a party not in possession, where uttered and done in his own interests, and not in the presence of the adverse party. All testimony in relation to them was, on this ground, objected to in the lower court. The facts which indicate that Jefferson held in his own right, and not as tenant of his brother, are as follows: 1. During his long occupation he had no other home. The land, when received, was wholly wild, subject to inundation, and differing in no respect from government lands, to be procured readily at $1.25 per acre. It constituted, as Joseph E. said, many years afterwards, “ a gift of but little value until improved by Jefferson.” He devoted the best years of his manhood, and expended twenty times the value of the land, in clearing, and fencing, and draining, and leveeing, and building upon it. He assessed and paid taxes on it as his own, and always so spoke of it, both to Joseph E. and to others. By a will prepared in 1846 he devised it. Indeed, no act of ownership higher than those habitually exercised by him can be conceived of, save a sale of it, and his right to do this seems to have been conceded by his brother, as will be hereafter seen. • 2. Nineteen witnesses testify to the general repute, within and without the family, that he was owner, and to the fact that he was always so spoken of by Joseph E. and by the world at large. These witnesses embrace former slaves of both brothers, the overseers, commission merchants, and mutual friends of both, a daughter and son-in-law of Joseph E., a brother-in-law, and four nephews and nieces. Outside the family it was not known that no deed had been made. Within the family a knowledge of this fact does not seem to have — 771 — affected the general understanding that Jefferson was owner. Mrs. Stamps (a niece by marriage of the two brothers)' expresses what seems to have been the general understanding in the family. After stating that Jefferson held as owner, and not as tenant, she sajs: “My answers are derived from my connection with the Davis family, among all of whom it was a matter of common repute, universally conceded, that Mr. Jefferson Davis was the owner of ‘ Brierfield,’ and I never heard that fact called in question or doubted by any one; so that I may sa}' the repute of such ownership was general, both in and out of the family. * * * It was understood and reputed among the family that Jefferson Davis was the real and actual owner of ‘ Brierfield,’ though the title was nominally in Joseph E. Davis.” The testimony of the other relatives, except Mrs. White, is substantially the same. 3. Joseph E. Davis habitually spoke of “Brierfield” as “Jefferson’s place,” both in ordinary conversation and upon occasions calling for accurate language. . During Jefferson’s frequent and protracted absences in the public service, Joseph sometimes acted as ageut for his brother, and at other times the agency was devolved upon others. While acting as agent, his letters, drafts, and orders relative to “Brierfield” were always signed “Jefferson Davis, by J. E. Davis.” Many such are in the record. He gave it in to the tax-assessor as Jefferson’s property, and paid taxes on it in Jefferson’s name. When other persons were acting as agents, he explicitly refused to interfere in any manner with the plantation. Soon after Jefferson’s marriage (which occurred in 1845), and while he was in Mexico, one of the daughters of Joseph E. twitted Mrs. Jefferson Davis with the taunt that her husband owned nothing, and was dependent on his brother. Stung by the remark, Mrs. Davis sought her brother-in-law and demanded to know, explicitly and distinctly, whether he or her husband was the owner of “Brierfield.” He assured her that Jefferson was owner, saying that he' had given it to him. He prepared the — 772 — will, in 1846, by which Jefferson devised “Brierfield.” Many years after this will had been destroyed, Mrs. Jefferson Davis, who regarded it as unjust towards herself, taxed her brother-in-law with having instigated it. He resented the charge with warmth, declared that he had only put it in legal shape at his brother’s request, and said that it was most unjust that he should be held responsible for the disposition that Jefferson had seen fit to make of his own property. In 1852, during a temporary alienation between the brothers, Joseph E. made a written proposition to purchase “Brierfield” from Jefferson, which the latter, in writing, declined. 4. Besides the habitual declarations of Joseph to the effect-that he had given “ Brierfield ” to Jefferson, he so stated with great particularity to William Stamps, who had married a sister of the two brothers. When Jefferson left the army, in 1833, Stamps, who was a man of wealth, proposed to advance him $10,000 with ivhich to buy a plantation. Joseph E. objected, and broke off the negotiation, saying that “ he intended to do better by Jefferson than that.” Two years after-wards Jefferson took possession of “Brierfield.” A little later Stamps applied to purchase a portion of “Hurricane.” Joseph E. replied that, having given “Brierfield” to Jefferson, he had no land to spare. He said that he had given “Brierfield” in consideration that Jefferson would leave the army and settle near him, because he loved him as a son. This witness also establishes the fact that Joseph E. was, before the gift, indebted to Jefferson, but does not fix the amount. It seems impossible to resist the conclusion, from this testimony, that Jefferson Davis held “Brierfield” in his own right, and acquired a perfect title by limitation. Not so to conclude would seem equivalent to declaring that no possession could give title without a writing. Stress is laid by appellees upon the fact that Joseph E. Davis assisted to build the residence, and that it was designed — 773 — to give shelter to a widowed sister. It is- proven that this arrangement was proposed because of the fact that Jefferson had, at the time, no children, and was much away from home. The plan did not originate with Joseph E., nor was he consulted when it was abandoned at the mutual instance of the sister and of Mrs. Jefferson Davis. It is said that Jefferson .should have intervened in the suit for the injunction of taxes assessed against “Brierfield,” and should have asserted his own title. It is impossible to see what principle sanctions such an idea. The suit did not involve title, and could be as well prosecuted by his brother as by himself. That his brother • chose to state the title as shown by the records, rather than as it really existed between the brothers, could not possibly affect Jefferson’s rights. It is urged, with much more force, that it is incredible that men so intelligent should have undertaken to convey title to land by parol. The suggestion loses, perhaps, some of its strength from a consideration of the fact that, though Joseph E. Davis had entered the land as early as 1812, he himself obtained no patent for it until after the close of the Civil War, in 1865. This shows, at least, great carelessness and indifference about paper evidences of title. But, apart from this, the books abound with cases of parol gifts of land ripened into perfect titles by occupation, in all of which written conveyances had, by negligence or otherwise, failed to be delivered; and we have seen no case that strikes us as more satisfactory upon the facts than this. If Jefferson Davis had remained poor and dependent upon his brother, we could perhaps understand a willingness upon his part to remain a pensioner upon that brother’s bounty or caprice. But the record shows that he rose as rapidly in fortune as in fame. While successively a colonel in the Mexican War, member of Congress, United States senator, and secretary of war, and filling all of these high places with distinguished ability, his increase in wealth was not less marked. In 1860 there — 774 — were largely more than a hundred slaves on “Brierfield,” which, with other personal property there, must have been worth $100,000. The annual cotton crop was from 400 to 450 bales, worth more, than $20,000 per annum. Many years before this he had been able, at one time, to allow his brother the use of $10,000 of surplus cash lying in the hands of his commission merchant. The residence at “ Brierfield ” was expensive, and fitted up with marble mantels — a thing unusual in country houses in this state. The grounds were adorned with shrubs and trees imported from foreign lands. That such a man should have created and lived in such a home for more than a quarter of a century without claim of’right, and wholly at the mercy of a brother with whom, despite a mutual affection unusually devoted and tender, there were not wanting more than one period of coldness and estrangement, seems to us far more remarkable than the carelessness which omitted to have the parol gift evidenced by a deed. We pass to a consideration of the facts occurring after the seizure of “ Brierfield ” by the Federal government. In 1863 both ‘ ‘ Brierfield ’ ’ and ‘ ‘ Hurricane ’ ’ were taken possession of by the oificers of the Freedman’s Bureau, Jefferson Davis being at the time in Virginia, as president of the Confederate States, and Josejih E. a refugee in Alabama, Both plantations remained in the occupation of the Bureau during the war. On October 20, 1865, Jefferson Davis — then confined, on a charge of treason, in Fortress Monroe — wrote a letter to his wife strongly advising against the return of Joseph E. {who was still in Alabama) to “ the river place.”- He says : “Allis changed. He [Joseph] will be troubled beyond his strength by the confusion which 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 the owner of the land. But my decided opinion is that, in the existing condition of things, neither he nor Lize [his granddaughter] should stay there.” — 775 — Why Jefferson suggested that Joseph E. should' occupy “Brierfield” rather than “Hurricane” does not appear. Whether he meant by Joseph “ claiming possession of Brier-field’ as owner of the land,” that he was entitled to possession as owner against himself, or only that he conld assert the claim in order to obtain possession from the Federal government, is left to conjecture. It is shown that this, like all his other letters while in prison, was subject to the inspection and-strictest scrutiny of his captors. Mrs. Davis forwarded a copy of the letter to Joseph E. No action was at the time taken by him in relation to the suggestion contained in it, for the reason that he was then uzzpardoned for his owzi participation in the Rebellion. Not until September 8, 1866, did he receive his pardon, and on the same day he made application, in writing, for the restoration to himself, as owner, of all the lands embraced both in “ Hurricane ” and “Brierfield.” The application was carried to Washington and laid before President Johnson by appellee Bowmar, as the agent of Joseph E. Davis. While the application was being prepared, Dr. Bow-mar said to Joseph E. Davis,How about ‘Brierfield?’” Bowmar thus details what followed : “ He simply answered, ‘ The title is in me.’ I had told him that it would be necessary to show title. He said that the title was in him ; that he had never conveyed it. I said nothing more about it. I supposed that all that he wanted was to get possession of the land. * * * There was reason to conceal from the Federáis any right that Jefferson Davis had to the land. Mr. Davis was in prison, and it was generally believed that his property would be confiscated, if nothing worse happened. * * * My impression was that he [Joseph E. Davis] wanted to protect his brother from loss.” Being asked if he meant loss by confiscation, the witness answered, “Yes.’,’ We[thmk that Dr. Bowmar’s- theory was the true one, and that Joseph E. Davis simply took advantage of the outstanding record-title in himself to recover the land for his brother. — 776 — It is insisted, with (an earnestness that excites surprise, that such a suggestion is dishonorable to the parties concerned, and is inconsistent with the lofty integrity that the record establishes for Joseph E. Davis, and which history attests for Jefferson. We have no right to assume that Dr. Bow-mar’s seuse of honor ivas less acute than that of his friend and testator. He was the active agent in carrying out the scheme, and he tells us quite distinctly what he supposed its object was. The truth, doubtless, is that in the eyes of Joseph E. Davis and Dr. Bowmar, as in those of millions óf their countrymen, Jefferson Davis’ person and property were alike held in custody for the commission of deeds which lacked nothing save success to crown his name ivitli immortality ; and, if so, they probably thought it no more dishonorable to save his property than it would have been to rescue his person. Eictitious claims and conveyances of property among the adherents of unsuccessful rebellions, in order to save it from confiscation,.have marked the history of all ages and countries. We are not aware that the sternest historians or the most austere moralists have ever regarded them as indicative of personal dishonor. Joseph E. Davis obtained possession of “Hurricane” and “Brierfield” in July, 1867 ; but in June preceding he had consulted Mrs. Jefferson Davis about selling “Brierfield” to Montgomery and sons, giving as a reason that her husband would never be released from prison, and that, she could not occupy it, in the changed relations of things, s without him. She opposed the sale, but said that the Federal authorities had promised to allow her to visit her husband in a short time, and that she would consult him on the subject. It appears by subsequent developments that she did consult him, and received his assent to the sale. In November following, the sale of the two' places jointly was made, the' bond and notes in controversy were taken, payable to Joseph E. Davis, who — 777 — executed a deed in his own name to both, places, and received a mortgage back to protect the payments. • Either at the time of the sale, or sometime afterwards (Montgomery makes two statements as to the time), Joseph E. Davis stipulated with the vendees that if Jefferson should ever be released, and should desire to reoccupy “ Brierfield,” the sale as to it should be rescinded. Mrs. Mary Stamps, who had married a nephew of the two brothers, obtained permission, a few weeks after the sale, to visit her imprisoned uncle. Joseph E. Davis met her in the eity of Jackson; he chai’ged her (in her own language) “to tell Jefferson that, as the duration of his then imprisonment was uncertain, he had acted, for him, in the sale of ‘ Brier-held,’ for what he considered his best interest; that the sale was made subject to his [Jefferson’s] approval; and he expressed an earnest desire that his brother should communicate with him on the subject.” Mrs. Stamps delivered. the message to Jefferson Davis, and brought out and handed to Joseph E. an unsigned written memorandum from Jefferson. In this, after alluding to the fact that all correspondence was prohibited, he states that he had already sent word, by his wife, “that any arrangement which you [he] made with Ben [Montgomery] Avould be agreeable to me ’ ’ [him]. He alludes to the malignity of his • enemies, and suggests that the sale “be closed soon, and tightly.” He expresses the opinion that Montgomery will never be able to pay, and that the land will revert. “ Then,” says he, “ it may be that a better state of affairs will render the • property valuable to your heirs.”' It is insisted that the Avords “ valuable to your heirs ” shoAV a disclaimer of any interest in himself. The circumstances under which they Avere written seem to suggest a sufficient reply. . Extracts from txvo letters written by Jefferson after his release are contained in the record, in both of which he reiter — 778 — ates the belief that Montgomery will never complete his payments. In one of them he suggests that, in this event, “ some-man of capital could be found to take the lands and secure to-you [Joseph] a revenue free from vexatious attention on your [his] part.” This sentence is immediately preceded by one which says, “I have thought of it [the high price of cotton} as bearing on your prospects at the ‘Hurricane.’ ” No special-reference is made to “ Brierfield.” The other letter, written in 1868, seems to have been in response to one communicating-the fact that Montgomery desired to abandon his entire contract, a proposition which Jefferson styles “ preposterous, after having enjoyed so long all of its advantages without having-met its obligations.” In this letter occurs this expression: “ It is also within his [Montgomery’s] ability to see that he had better retire with the means he has acquired by the possession of your property, and engage in small trade.” It is insisted that the expression “your property” shows-that the writer claimed nothing for himself. We cannot see that he was called upon to assert a claim which had been so-uniformly recognized by his brother. The letter seems to be a reply to one which communicated Montgomery’s wish, to-abandon the contract, and this would imply that he was regularly advised and consulted in relation to the matter. The bill distinctly charges, and the answer admits in implied, if not express, terms, that year by year, as long as Joseph E. Davis lived, Jefferson’s proportion of the annual payments-made by Montgomery was regularly remitted by his brother. In the face of facts like this we cannot regard this isolated expression in the letter as important. Indeed, the letters show,, as does every other fact proven, that from the time when Montgomery first proposed to purchase, in June, 1866, up to Joseph’s death, in 1870, no step was taken, no proposition, submitted, in reference to ‘ ‘ Brierfield ’ ’ which was not promptly communicated to Jefferson. It is impossible to see how his rights could have been more clearly recognized. — 779 — Our opinion is that Jefferson Davis held “Brierfield” as •owner, and that there is no competent legal evidence in the record showing that Joseph E. ever questioned or impugned his title as such up to 1865. From that time until his death, to the world at large, he asserted the outstanding record-title that was in him ; but to his brother Jefferson, by seeking his ■consent to the sale in advance, by promptly communicating information of it when made and asking his approval, and by regularly remitting his proportion of the annual payments received, he continued to recognize his brother’s rights , up to the making of his will, in 1869. This brings us to the question of estoppel. Has Jefferson Davis’ conduct been such as to estop him from a prosecution of this suit? Joseph E. Davis died in the summer of 1870, Jefferson Davis being at the time a resident of Tennessee. In his last will and testament, executed the year previous, he makes no allusion to any right of Jefferson in the Montgomery notes, but bequeaths something less thán a fourth of them to Jefferson’s children, and the balance, as we assume, to his own grandchildren, Mrs. Hamer and J. D. Mitchell. There was much other property, real and personal, devised to various other persons. Of this will, Jefferson Davis, J. H. D. Bowmar, and Joseph D. Smith were appointed executors. When Jefferson Davis was made aware of the terms of his brother’s will, he expressed to his co-executor Bowmar his dissatisfaction, and, upon something being said about the generous bequest to his own children, remarked that it was a generosity at his expense. From that time to the bringing of this suit he gave no further token of dissatisfaction, and during the three years and a half that intervened his conduct ■was in every respect antagonistic to his present position. He qualified and gave bond as executor; he united in an inventory in which the Montgomery notes were returned as assets of the estate; he took part in spreading upon a journal kept by the executors a memorandum recognizing those notes as780 the property of the legatees ; and he assisted in taking from Montgomery a further mortgage to secure them. In every way possible he recognized that the testator had disposed of them without regard to any claim of right on his part. Is he-thereby estopped from asserting such claim ? Estoppel is a-preclusion to show the truth. It is of the essence of the doctrine that the conduct relied on as an estoppel should have-induced some action, on the .part of the person pleading it, which will be injurious to him if the party guilty of the conduct is permitted to show the truth. As expressed in Patterson v. Lytle, 11 Pa. St. 53, “ The principle runs through the-whole doctrine of estoppel that a man is only prevented from alleging the truth when his assertion of a falsehood, or his-silence, has been the inducement to action, by the other party, which would result in loss if the opponent was permitted to-gainsay what he had before asserted, or by his acts induced the others to believe.” As expressed by Cooley, J., in Meister v. Birney, 24 Mich. 435, “There can be no estoppel unless the plaintiff was induced to take some action in reliance upon the statement, which he was not legally bound to take, which otherwise he would not have taken, and which will result to his detriment if the statement upon which he relied is allowed to be disproved.” The same doctrine has been quite as strongly announced by us in two recent cases, where the facts seemed earnestly to-call for the application of an estoppel, but in both of which, we refused to apply it because it was not shown that the other party had been entrapped into any affirmative action, Staten v. Bryant, ante, 261. Save a circumstance to be presently noticed, there is no pretense that the legatees of Joseph E. Davis have been induced to take any action whatever, in-reliance upon Jefferson Davis’ admissions that they were the exclusive owners of the fund in controversy. No such action on their part has been suggested in argument, except that one of the female legatees — 781 — lias contracted a marriage which perhaps she would not have contracted but for an impression that she was wealthier than she will be if this bill is maintained. This is the mere suggestion of couusel, without allegation or proof on the subject in the record. We cannot accept it as the kind of action contemplated by the authorities. One act of Jefferson Davis requires closer scrutiny. He held a probated claim against his brother’s estate for $10,000, with accumulations of interest which would have more than doubled it. It ivas resisted, as being barred by the statute of' limitations. On December 21, 1872, the residuary legatees, by a written contract with him, agreed to pay the principal, without interest. It was agreed that it should be paid out of the residuum of the estate, and the Montgomery notes were specialty alluded to as constituting a portion of that residuum, out of which the payment was to be made. It was agreed, however, that, as to the notes, payment should come wholly out of the residuary portion of them, and should not diminish the special legacies charged on them by the will; in other-words, the residuary, and not the special, legatees should pay it. It was further agreed that it should be subordinate, so far as money arising from the Montgomery notes was concerned, to all taxes and expenses of • administration. In short, the residuary legatees agreed to pay the face of the claim out of' their residuary portion of the estate, but declined to bind the specific legacies coming to them. Jefferson Davis agreed, upon his part, to accept the face of his claim ; to look alone for payment to the residuum of the estate, without interfering with special legacies, and, even as to the residuum, to postpone his debt to taxes and costs of administration. To borrow a librase from another branch of the law, it was a “ demonstrative ” contract, which fixed its own terms and pointed out the source and manner of payment. One of the sources pointed to was the Montgomery notes. It is shown that Jefferson Davis has never received anything on this debt, either before or since the making of this contract. Does the making of the — 782 — contract estop him now from claiming that, in point of fact, a portion of the Montgomery notes belong to him? Misled by the arguments of counsel, we treated this contract, in our former opinion, as limiting the payment of the debt to the residuum of the Montgomery notes, the whole of said notes, it being borne in mind, not being specifically devised. We consequently held that the contract constituted no estoppel, because it is only the residuum of those notes that Jefferson Davis claims, and he could not be estopped from claiming a fund by an agreement to receive payment of a debt due himself out of a fund belonging to himself. Attention is now, called to the fact that, by the terms of the contract, he may look for payment to the entire residuum of the estate, which embraces other property besides that portion of the Montgomery notes not specifically devised. How far does this operate to estop him from claiming ownership in those notes? It is manifest that, in any litigation touching the agreement itself, all of its stipulations are binding on the parties ; so that in all controversies arising upon it Jefferson Davis would be compelled to treat the Montgomery notes as the property of the legatees. If, for instance, he should succeed in this proceeding, and thereby obtain a portion of the notes as his own, he would, nevertheless, in any future suit brought to compel payment of his $10,000 debt, be compelled to credit said debt with the recovery obtained here, and, if sufficient, the oné would extinguish the other. Having agreed to receive payment of his debt out of that fund, he must treat any'money coming to him from that source as a payment. But he now ■ claims an ownership in the notes by a wholly different title. Whether the contract will debar him from prosecuting this claim depends upon whether the recognition contained in it, that the notes belonged to the legatees, formed a part of the consideration, or was a mere admission and recital of a fact the truth of which was taken for granted, and about which there was, at the time, no controversy. A mere statement or admission in one contract, not forming a part of the consid — 783 — eration of it, will not be binding in another matter with which it has no connection. If, for instance, in a negotiation with my neighbor about the location of a house or a fence, I recognize and treat the land upon which he is then living as his property, this will not debar me from suing for the same land upon a claim then existing in my favor, unless the recognition by me that the land is his formed the inducement with him to enter into the contract. This identical case is presented in Carpenter v. Buhler, 8 Mee. & W. 209, where, in a contract about building a shaft leading , to a mine, the land through which it ivas to run was treated as, and recited to be, the property of one of the contracting parties ; but yet it was held that this did not estop the other party from subsequently recovering the land by an older title. The reason was that the recital as to ownership of the land was no part of the inducement to, or consideration of, the contract. Such recitals are said to be always admissible in evidence, as showing an admission by the party making them ; but they are not estoppels. So, the taking by a creditor of a mortgage, to protect a disputed debt, upon land in the possession of his debtor, though it would be an admission of title in the debtor, would not estop the creditor from recovering the land as his own by a prior and better title. The principle is that no mere recital or assumption of a fact in one matter can operate as an estoppel in another. It is receivable in evidence as an admission, but not as an estoppel. Herman on Estop., secs. 246, 324; Southeastern Ry. Co. v. Warton, 6 H. & N. 520; Reed v. McCourt, 41 N. Y. 439; Lanison v. Tremeve, 1 Ad. & E. 792. If, then, the recognition in the contract of 1872, that the Montgomery notes belonged wholly to the legatees, can be regarded as forming any portion of the inducement to the legatees for undertaking to pay to Mr. Davis his probated claim, this would forever estop him from claiming any ownership in those notes. If the record left this point doubtful, we would feel bound to give the legatees the benefit of the doubt, and — 784 — to hold-him estopped. But it is unmistakably shown that the contract of 1872 had no connection whatever with the ownership of those notes. The legatees, in setting up the contract in their answer as an estoppel, say, under oath, “ that they had, at the time it was made, no notice or suspicion that Jefferson Davis had, or claimed to have, any interest in ‘ Brier-field’ or its proceeds.” It is quite ihanifest that, at the time this contract was made, Jefferson Davis had no intention of bringing this suit. It is impossible, therefore, that the ownership of the Montgomery notes could have entered into the mind of either party, or that the designation of them as one of the sources from which Mr. Davis was to receive payment of his debt could have formed any part of the consideration of the contract. Indeed, the paper shows upon its face that the notes were merely pointed out as forming a portion of the estate, and certain limitations were thrown around Mr. Davis’ right to subject them to his demand. Thus, it was stipulated that his' debt should not diminish that portion of the notes-devised specifically by name to the residuary legatees, but only to that portion coming to them under the residuary clauses, of the will. It was, therefore, a mere statement or recital,, and not a part of the consideration of the contract. It must be respected in all controversies arising upon the contract itself, but is not binding in other matters unconnected with it. It is an admission by Jefferson Davis of title in the legatees, and, therefore, receivable in evidence against him. It is not an estoppel. The record plainly shows that, after Jefferson Davis’ first, expression of dissatisfaction on learning the contents of his brother’s will, he resolved to subniit in silence to what he considered the injustice done him, and that he remained of this mind until the bringing of this suit. If we could see that his long acquiescence had harmed anybody, or induced any party in interest to take any steps which it would be prejudicial to retrace, we would assuredly estop a further prosecution of this litigation. A careful and anxious scanning of the record fails — 785 — to disclose any such steps taken. We can neither inquire into the motives which induced his long silence nor into those which prompted him at last to sue. It is sufficient for us that no statute of limitation bars his claim, and no one, by his silence or admissions, has been led to take anj^ action which renders it inequitable for him now to assert his rights. The only remaining question is whether Jefferson Davis’ position'as executor precludes the maintenance of.this suit. Upon this question we are content with the exposition of the law in our former opinion. That our views may not be misunderstood, we desire to say that we 'would maintain with the utmost strictness the rule which deprives a trustee of any advantage gained by his fiduciary position, and which forbids him from laying claim to any portion of the trust property which has come into Ms possession. He can acquire no subsequent interest after entering on the trust. If he takes and', holds possession of the property, this is, of itself, a renunciation of any previous interest. But we do not understand that qualification alone, or any subsequent act, without possession taken, defeats a prior independent right in the trustee. It might do so where the adverse right extended to the whole subject-matter of the trust, because then nothing would remain for the trust to operate on. But where, as in this case, it is a vast estate, and the claim is of a fractional interest in one chose in action alone, which has never come into the actual possession of the executor, the whole spirit and reason of the rule ceases ; and to enforce its letter (if, indeed, there be such letter) would operate an injustice more intolerable than that which it was designed to prevent. In such case the executor could not maintain an action at law any more than he could bring suit at law upon a debt due to himself from the estate. But as he does not lose his debt by qualification, neither should he lose his partial interest in the chose in action. If Joseph E. Davis had collected the whole of the Montgomery notes, and died without having paid to Jefferson the amount representing “Brierfield,” certainly Jefferson’s qualification as execii — 786 — tor would not have precluded him from probating a claim for money had and received. The money remaining uncollected and still represented by the notes, what course must he take? His remedy is to ask the Chancery Court, which has jurisdiction and cognizance of the subject-matter, to pass upon his claim. This is the very point decided in Saunders’ Heirs v. Saunders’ Executors, 2 Litt. 315, and tacitly assumed in McWillie v. Van Vaeter and Wife, 35 Miss. 428. We are well aware that numerous dicta in text-books and reported cases seem to inculcate a harsher doctrine, but neither our own researches nor the exhaustive labors of counsel have ■ produced a case where a result in accordance with those dicta has been practically reached. In all the cases examined, and their number is very great, there has been the element of after-acquired right, or of possession taken. In the case at bar, Jefferson Davis’ right long antedates the execution of his testator’s will. It is affirmatively shown that the notes and bonds in which he claims an interest have never been in his possession, except in that technical sense which the law imputes to him as executor. He has, therefore, impleaded his co-executors and the legatees in the court in which the estate is being administered, and there propounded his claim. Having established it, as we think, by undoubted proof, no sound principle demands a denial of relief. If JosephE. Davis, by his will, made, in fact, no disposition of so much of the Montgomery notes as represented the value of “Brierfield,” and asserted no claim of ownership to that much of them, then, of course, Jefferson’s right of recovery is indisputable. Speaking for myself only, I must say that I regard it as quite doubtful whether he did so. He specifically devised $230,000 of the $300,000 due, making careful provision how each legatee’s share should diminish if less than $230,000 should be collected. He makes no disposition whatever of the remaining $70,000. The estimated value of “Brierfield” at the time of the sale was about $70,000. It is this omitted $70,000 that Jefferson claims. It is said that — 787 — it passed, and was intended to pass, by the residuary clause of the will, by which “all the rest and residue of the estate ” was devised to Mr. Mitchell and Mrs. Hamer. This, it seems to me, is assuming the very point at issue, namely, did the testator regard it as a part of his estate ? He had regularly remitted the interest, on it, up to Ms death, to his brother. In parceling out the bulk of the sum due on the notes among his legatees, he carefully refrained from trenching on this amount. Under these circumstances it seems scarcely fair to assume that he intended to embrace it in the words “ rest and residue of my estate.” Jefferson Davis, however, thought that he did, and uniformly acted on that construction. We have, therefore, felt bound so to regard and treat it. The decree of reversal heretofore entered in this court will stand.