for compensation to be paid by the step. EXCEPTIONS by the executor of the es mother, is a valid consideration to support the promise of compensation. Same-estoppel. 2. One having a valid claim against another for services is estopped to assert it against the latter's estate, by remaining silent, though present, when the latter is negotiating for the services of another, to be compensated by her entire estate after death, against which she states that there are no claims. Executor-right to claim estoppel. 3. The executor and the legatee of testator's personal estate are in privity to such an extent that the former may assert an estoppel which prevents a stranger from making claim to the estate against the legatee. (November 26, 1906.) finds support in the case of Lee v. Carter, 52 Ind. 342, where it was held that an administrator, in an action against him, as such administrator, to enforce a claim against the decedent, could not, in his defense, assert an estoppel which he had personally to the prosecution of this claim. In this case the claimant presented a large claim against the estate of decedent for services which he had rendered. The estate consisted almost entirely of real estate, which the administrator of the estate had purchased from the heirs at law in reliance upon representations made by the claimant to the heirs at law that the outstanding claims against the estate were of small amount, and that there was sufficient personalty to pay them. It further appeared that the claimant had had the management of the affairs of decedent for many years, and was, therefore, in a position to know the amount of his debts. The court, in denying the administrator the right to assert this defense in this action against him as administrator, declined to pass upon the question of whether or not these facts amounted to an estoppel, but based its decision solely on the fact that such defens? could not be made. In the absence of some statutory provision authorizing an administrator to contest the validity of conveyances by the decedent on the ground that they are fraudulent as to creditors, it has been very frequently held that the administrator or executor is not in such privity with the creditor as to authorize him to make this defense in an action against the administrator or executor by the fraudulent donee or vendee. Such was the holding of the court in Chappell v. Brown, 1 Bail. L. 528, in which case a donee of a slave and a horse brought an action against the administrator to recover on a claim which he had against decedent. It was held that the administrator could not charge claimant with the value of this property on the ground that the gift of the same to the claimant was fraudulent and void as to the creditors of decedent. tate Adelia C. Pond, deceased, to rulings of the Addison County Court affirming an allowance by the Probate Court of a claim against the estate. Judgment reversed. The facts are stated in the opinion. Messrs. Davis & Russell for defendant. Messrs. F. L. Fish and J. B. Donoway, for plaintiff: There was no estoppel. White v. Langdon, 30 Vt. 599; Hackett v. Callender, 32 Vt. 97; Shaw v. Beebe, 35 Vt. 205; Durant v. Pratt, 55 Vt. 270. Powers, J., delivered the opinion of the court: This is an appeal from the allowance by the commissioners on the estate of Adelia To the same effect is Tomlinson v. Tomlinson, 10 Rich. L. 404. And the defense that a mortgage was given to the mortgagee with the fraudulent intent of covering the property from creditors cannot be made by the administratrix of the mortgagor in a suit upon such mortgage. Williams v. Williams, 34 Pa. 312. A claim was made in this case that the administratrix was entitled to make the defense proposed, for the benefit of creditors; but the court treated her simply as a representative of the decedent, and as entitled to make only such defenses as he might have made, if living. That the creditors, however, had a remedy, was conceded, but it was held that such remedy must be in the orphan's court on distribution of the proceeds of the sale, at which time they could question the validity of the mortgage. Neither can an administrator, in an action against him for property, defend on the ground that the conveyance by his decedent to claimant, of such property, was fraudulent as to creditors, even though the estate may be insolvent. Drinkwater v. Drinkwater, 4 Mass. 353. And the same rule has been applied in an action to enforce a judgment against decedent. The fact that such judgment was ob tained by collusion between the parties and to defraud creditors is a defense "as much forbdden to the administrator of Blake [decedent] as it would have been to Blake himself. The administrator is a mere representative of the deceased, a privy in representation." Dow v. Blake, 148 III. 76, 39 Am. St. Rep. 156, 35 N. E. 761. 189, 60 Atl. 96, it was held that an adAnd in McCaffrey v. Kennett, 73 N. H. ministrator who was assignee of the heirs and estate could not offset a personal claim in an action against him as administrator. And the fact that a judgment has been recovered against the personal representatives of an intestate will not establish any indebtedness against the widow or heirs at law of the real estate held against them, because such widow or heirs at law are not parties to the record, or privy to it. C. Pond of Mary J. Pond's claim for services covering the last six years of the testatrix's lifetime. The claimant is the daughter of Everett B. Pond and stepdaughter of the testatrix. By the terms of Everett B. Pond's will, the use of the home farm was given to the testatrix during her lifetime, and then to the claimant during her lifetime. It was further provided in the will that the claimant was to have a home on the farm as long as she desired, and be supported out of the income thereof, provided she continued to live there and rendered reasonable assistance about the household affairs. The claimant continued to reside with the testatrix on the farm and receive her support therefrom for some years after her father's death, but finally concluded to go away and take care of herself. Whereupon it was agreed between the testatrix and the claimant that the latter should remain at the farm and receive from the former for her services, in addition to her support, a fixed sum per week. Afterwards, and about a year and a half before the death of the testatrix, she made a contract with one Hubbard, whereby he was to come to and make his home on the farm, carry it on, and, in case he survived the testatrix, he was to receive the whole of her estate, then and now consisting entirely of personal property. This proposed arrangement was fully discussed in the presence of the claimant, who knew all about its terms before it was consummated. While the negotiations for this contract were going on, the testatrix, in the presence and hearing of the claimant, told Hubbard that her estate was estimated at $2,000, enumerated the items of which it consisted, and asserted that it was free from "At common law, a judgment against executors or administrators was not evidence against the heir; nor was it in equity. For there is no privity between the executor and the heir. And, though the grantees in the deed were also the heirs at law of Parks [decedent], there is no privity which makes the judgment roll evidence against them, unless it is made so by statute." Sharpe v. Freeman, 45 N. Y. 802. That the relation of privity does not exist between an administrator and an heir of decedent was recognized in the case of McIntyre v. Sholty, 139 Ill. 171, 29 N. E. 43, where the question arose as to the construction of a statute in reference to allowing appeals by a party or privy. In considering the question of privity the court uses language from which we quote as follows: "It cannot be said that Levi W. Sholty [an heir of decedent] is in any way privy to the record. There are privies in blood, as the heir is to the ancestor; privies in representation, as is the executor or administrator to the deceased; privies in estate, as lessor and lessee, etc. If this judgment had been debts. To this last statement, the claimant made no dissent, nor did she ever disclose to Hubbard the existence of her claim for services until after the death of the testatrix; on the contrary, she allowed the testatrix's statement to go unchallenged, and urged Hubbard to enter into the arrangement. Relying upon these representations of the testatrix, and believing them to be true, Hubbard did enter into this arrangement with the testatrix, and on his part fully carried out and performed the same according to its terms, and, shortly before her death, the testatrix made her will giving Hubbard the use of all her property with remainder to his children, which was satisfactory to him. The executor defends under the general issue and a notice setting forth the facts herein recited, and relies mainly upon his claim that, in the circumstances, the claimant is estopped by her conduct from asserting her claim against the estate. Under the terms of her father's will, the claimant had a right to remain at home, and be there supported out of the avails of the farm, rendering such service as the will specified. But she was under no obligation to remain there; the option was hers, and she could stay or go as she pleased. So, when the time came that she decided to go, the way was open to her to make such arrangement with her stepmother to forego that decision and remain on the place as they might agree upon. And such arrangement, when made, was founded upon a valid consideration, and binding, for she has thereby agreed to do, and did in fact do, something which she was not before legally rendered against Benjamin D. Sholty in his lifetime, then Levi W. Sholty, being a brother and heir, might be entitled to sue out a writ of error as a privy in blood. But there can be no relation of privity between an heir of the deceased and the administrator of the deceased's estate." In this state [Illinois], however, while the relation of privity between an executor or an administrator, and a devisee, legatee, heir, or creditor, is denied, yet the right of such devisee, legatee, heir, or creditor to contest a claim against the estate of decedent is given by a statute, and recognized and applied in the case of Schlink v. Maxton, 153 Ill. 447, 38 N. E. 1063. And to the same effect is the case of Winchell v. Sanger, 73 Conn. 399, 66 L. R.A. 935, 47 Atl. 706, where it was held that an administrator was, in a sense, a trustee for all the parties interested in the estate, and that, where he failed to make a defense to a claim, which might have been made, a devisee or legatee, or other person interested in such estate, would be permitted to make such defense. Prof. Greenleaf's definition (1 Greenl. Ev. § 189) denotes mutual or successive relationships to the same rights of property. In the classification usually stated is found privies in representation, which include executor and testator, administrator, and intestate. So between this executor and the testatrix the privity is complete. But this will not avail him, for, as we have seen, from her he can acquire no right of estoppel, as she had done. It remains to consider whether there is privity between the executor and Hubbard, the legatee; and on this question depends the whole controversy. If the executor can set up the estoppel, it is because he represents Hubbard as well as the testatrix in this litigation. An administrator or executor under our law takes the legal title to the personal property; but not in his own right. He is not the owner of it, except in a qualified sense. His interest in it is in autre droit, merely. 1 Woerner, Am. Law of Administration, § 174; Weeks v. Gibbs, 9 Mass. 74. His title is fiduciary, rather than beneficial. Carter v. Manufacturers' Nat. Bank, 71 Me. 448, 36 Am. Rep. 338. It is the legal title which he takes, but he takes it as trustee and for a particular purpose. Lewis v. Lyons, 13 Ill. 117; Stickney v. Parmenter, 74 Vt. 58, 52 Atl. 73. In a sense, then, when, as here, the estate consists entirely of personal property, the relation of trustee and cestui que trust exists between the executor and the legatee. bound to do. So she has a valid claim which | way, 32 Pa. 45. The term "privy," to adopt she may assert, unless she is estopped from setting it up against the estate by her conduct during the negotiations between the testatrix and Hubbard. It is claimed that it was her duty, when, in her presence, the testatrix informed Hubbard that there were no debts, to speak out and assert her claim, and, not having done so, she will not now be allowed to, to the prejudice of Hubbard, who, being ignorant of the facts and relying upon their being as stated, has acted to his prejudice. That the conduct of the claimant on the occasion referred to amounted to an admission, and was evidence against the claimant tending to show that the testatrix was not then owing her, was fully recognized by the trial court, and the estate was given the proper benefit thereof. But an estoppel is something more. An admission is a mere piece of evidence. An estoppel is the basis of substantive rights. In the class to which the one under consideration belongs, the estoppel includes the admission, but the converse of this proposition is not true. In addition to the admission, whether it be by silence or by positive assertion, there must be a reliance and action thereon to his injury, in ignorance of the truth, by the party who seeks to assert the estoppel, before it becomes the basis of a right of action or defense. 2 Wig. more, Ev. § 1056. Ignorance of the truth of the matter on the part of him to whom the representation is made, being an essential element of an estoppel in his favor (Boyn-It follows that in litigation which affects the ton v. Braley, 54 Vt. 92), it is apparent that the claimant's conduct did not amount to an estoppel so far as the testatrix was concerned, for she knew all the facts, and so could not be misled to her injury by the claimant's omission to deny her statement that there were no debts. But Hubbard was ignorant of the matter; and it was material to the proposition which he was then considering, as it necessarily affected the amount which he was to receive under the proposed arrangement. His situation and relation to the matter made it the duty of the claimant to speak, and, since he has acted in reliance upon the fact being as then stated, it would be a substantial injury, if not a fraud upon him, to allow the truth to be now asserted. In these circumstances, as against Hubbard, the plaintiff is estopped. Earl v. Stevens, 57 Vt. 474; Wells v. Austin, 59 Vt. 157, 10 Atl. 405. amount or value of such an estate the administrator or executor represents the legatee, and the privity between them is complete. 2 Van Fleet, Former Adjudication, $465. The privity between them is the privity of trustee and cestui que trust, the privity which, it is said, was classified in the old books as privity of person. R. & L. Law Dict. "Privity." The real estate, however, descends directly to the heir, and the interest of the administrator is in the nature of a naked conditional power, and the privity between them as to such property is slight or none at all. Van Fleet, Former Adjudication, § 466. If this controversy was over the title to a specific article of personal property, which the testatrix had claimed to Hubbard that she owned, and which she had, in the claimant's presence, promised to give him by will for his services under the contract, the estoppel, if Estoppels, however, operate only in favor proved, would be available to the executor, of parties and their privies. Wright v. who would represent Hubbard in the suit. Hazen, 24 Vt. 143. Hubbard is not a party It is true that this controversy is not over here, and the estoppel cannot be set up for the title to any of the assets of the estate, his ultimate benefit unless he is in privity and does not directly concern such assets; with the executor. Simpson v. Pearson, 31 but indirectly and necessarily the assets are Ind. 1, 99 Am. Dec. 577; Cuttle v. Brock-affected, for the recovery must come out of them, and no logical reason can be given why the same rule should not govern the rights of the parties. We hold, therefore, that the estoppel is available to the executor in this suit, and, the evidence establishing it being undisputed, the defendant estate was entitled to a verdict under its motion. The exception to the exclusion of the testimony of the witness Wilson is not sustained, as it does not appear that the negotiations with him had progressed so far that the claimant was called upon to speak. Hence her silence did not amount to an admission. Nor was there error in excluding the question asked of Mrs. A. A. Pond, since it does not appear what her answer would have been if allowed. Reversed and remanded. SOUTH DAKOTA SUPREME COURT. D. O. KIERBOW, Respt., V. HENRY YOUNG, Appt. (— S. D. —, 107 N. W. 371.) Claim and delivery-pleading. 1. A complaint in claim and delivery is insufficient which does allege ownership of Subject Note.-Right of one from whom property has been taken in replevin to maintain similar action for its recovery. I. The general rule as to property subject to replevin, 216. II. Previous taking from plaintiff, or persons in privity with him. a. From plaintiff personally, 216. III. Previous taking from stranger in interest, 219. IV. Property in the custody of the law. a. General rules, 220. b. Application when property was taken from third person. 221. c. Exception where officer acts without authority, 223. d. Effect of surrender of property by officer to a party, 223. V. Determination in first action as a bar, 224. VI. Relief, how obtained, 225. VII. Conclusion, 226. 1. The general rule as to property subject to replevin. The general rule is that the owner of a chattel may take it by replevin from any person whose possession is unlawful, unless it has been taken from him by replevin by the party in possession. Hines v. Allen, 55 Me. 114, 92 Am. Dec. 574; Beers v. Wuer | APPEAL by defendant from an order of the Circuit Court for McPherson County overruling a demurrer to the complaint in an action brought to recover possession of certain personal property. Reversed. The facts are stated in the opinion. Messrs. Taubman, Williamson, & Herreid, for appellant: To constitute a cause of action in am action in claim and delivery the plaintiff pul, 24 Ark. 272; Cromwell v. Owings, 7 Harr. & J. 55; Ilsley v. Stubbs, 5 Mass. 280; Buckley v. Buckley, 9 Nev. 373. Or unless it is in the custody of the law. Beers v. Wuerpul; Cromwell v. Owings; Ilsley v. Stubbs; and Buckley v. Buckley, supra. II. Previous taking from plaintiff, or persons in privity with him. a. From plaintiff personally. A defendant in replevin cannot at once turn around and replevy the goods from the plaintiff, in another action of replevin. Bonney v. Smith, 59 N. H. 411. And a person cannot maintain an action of replevin for property while an action is pending in which the same property was replevied from him. Yost v. Schleicher, 62 Neb. 601, 87 N. W. 308; Hines v. Allen, supra; Lockwood v. Perry, 9 Met. 440; Westbay v. Milligan, 74 Mo. App. 179; Morris v. DeWitt, 5 Wend. 71; Lowry v. Hall, 2 Watts. & S. 129. 38 Am. Dec. 495. This is the rule of KIERBOW V. YOUNG. Where one person claimed property, and replevied it, and the person from whom he took it immediately replevied it back again into his own possession, the only issue in dispute is the title to the property or the right of possession, and the pendency of the first action is a bar to the second. Bonney v. Smith, supra. This is the common-law rule, and, by the must allege that he is the owner of the Welter v. Jacobson, 7 N. D. 32, 66 Am. St. property or has a special property therein, Rep. 632, 73 N. W. 65; Morris v. DeWitt, and that he was entitled to the immediate 5 Wend. 71; Fleming v. Wells, 65 Cal. 336, possession of the same at the time of the 4 Pac. 197; Fisher v. Busch, 64 Mich. 180, commencement of the action, and that the 31 N. W. 39. property is wrongfully detained by the defendant. Wells, Replevin, § 94; Fredericks v. Tracy, 98 Cal. 658, 33 Pac. 750; Holly v. Heiskell, 112 Cal. 174, 44 Pac. 466; 18 Enc. Pl. & Pr. p. 536; W. W. Kimball Co. v. Redfield, 33 Or. 292, 54 Pac. 216; Cameron v. Wentworth, 23 Mont. 70, 57 Pac. 648; 4 Current Law, No. 4, p. 1289, par. 7; Simonds v. Wrightman, 36 Or. 120, 58 Pac. 1100; Everett v. Buchanan, 2 Dak. 252, 6 N. W. 439, 8 N. W. 31; Willis v. DeWitt, 3 S. D. 281, 52 N. W. 1090. The action lies only against the defendant who is in possession of the goods at the time the demand is made or suit is begun. Wells, Replevin, § 134; Willis v. DeWitt, supra; Heidiman-Benoist Saddlery Co. v. Schott, 59 Neb. 20, 80 N. W. 47; Cobbey, Replevin, §§ 61, 64; McCormick Harvesting Mach. Co. v. Woulph, 11 S. D. 252, 76 N. W. 939; Richards v. Morey, 133 Cal. 437, 65 Pac. 886. Mr. James M. Brown for respondent. Corson, J., delivered the opinion of the court: This is an appeal by the defendant from an order overruling his demurrer to the complaint. The action was one in claim and delivery, and it is alleged in the complaint, in substance, that the defendant is the duly appointed and acting sheriff of McPherson county; that, on or about February 2, 1905, the Hamm Brewing Company, a corporation, commenced an action in the circuit court against the plaintiff and respondent, in which it is claimed to be entitled to the possession of certain personal property described in the complaint in that action and affidavit therein, and that such proceedings were had therein; that the sheriff took into his possession the property described in said complaint and affidavit, and also property not therein described of the value of $1,200, and did wrongfully mix and commingle the same with Plaintiff could not ignore the former pro- the other property taken by him under said ceedings and bring a separate action. statutes of a number of the states, cross replevin is expressly forbidden. Hagan v. Deuell, 24 Ark. 216, 88 Am. Dec. 760; Beers v. Wuerpul, supra. Such statutes are but declaratory of the general principle of the common law, existing prior to their enactment. Beers v. Wuerpul, supra. And the provision of the New Hampshire Revised Statutes, that, when any goods or chattels attached on any writ of mesne process are claimed by any other person, he may maintain replevin therefor, does not apply to an attempt by a person whose goods had been taken from him by replevin to regain possession thereof by replevin. Sanborn v. Leavitt, 43 N. H. 473. Whenever a defendant in a replevin suit is entitled to try the title to the property, and, in case he succeeds, is entitled to a return of the goods, he is bound to try the title in such suit, and to take judgment therein for a return of the goods; and he is not permitted to forego the remedy at hand and seek his redress by cross replevin. McKnight v. Dunlop, 4 Barb. 36. affidavit in said action, and delivered the be a second writ, or a cross replevin. Davis v. Gambert, 57 Iowa, 239, 10 N. W. 658. The reasons for the rule that, when property has been taken from a person by a replevin suit against him and delivered to the plaintiff, he cannot replevin it back again pending the suit, are that his rights can be fully determined in the first suit, and procuring a second suit would lead to confusion and multiplicity of suits, and unnecessary complications. Hines v. Allen, 55 Me. 114, 92 Am. Dec. 574. And the rule applies, also, to one who derives title from him after the service of the writ. Ibid. And one from whom property has been of replevin therefor against a third person taken by replevin cannot institute an action who may become possessed of the property. Lockwood v. Perry, supra. So, where a person recovers property of another by replevin, and possession is delivered to him, he is entitled to possession during the pendency of the suit; and, where judgment is given in favor of the defendant, The remedy of a person from whom propand the return of the property is ordered, erty has been taken by replevin, of making and proceedings for the removal of the cause claim therefor before the sheriff, is excluare instituted, the completion of such prosive; and, if he does not succeed in that, he ceedings for removal suspends the further must await a trial upon the merits. Mor-operation of the judgment of the justice, and ris v. DeWitt, supra. A person whose property is taken in replevin is protected by the bond required to be filed in the case, where he is a party to the action; and in such case there cannot leaves the writ by which the suit was commenced in legal force, so that the plaintiff is at liberty thereafter to regain possession of the property in question if he can do so peaceably; and during such pendency the |