
    Marena Snyder, App’lt, v. William P. Brooks, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    Estoppel—Monet had and received.
    A cow "belonging to plaintiff was included in the inventory of the estate of her husband, of which she and defendant were the executors, and the inventory was verified by both. Before doing so plaintiff claimed that ' the cow was hers, but defendant advised her not to insist on her claim. The cow was sold with the other property and defendant received the purchase price thereof, and thereafter had a final settlement. Held, that plaintiff was not estopped by her acts from claiming the purchase price of the cow as money had and received by defendant to her use.
    
      Appeal by the plaintiff from a judgment of the county court of Allegany county, reversing a judgment of a justice of the peace, entered November 1, 1890.
    
      II. H. jRelya, for app’lt; Frank Harding, for resp't.
   Maoomser, J.

This action was originally begun in-a court of a justice of the peace to recover for moneys had and received by the defendant to the use of the plaintiff, being the amount of tlie proceeds of the sale of a cow belonging to plaintiff.

Evidence before the justice was given showing that the cow in question belonged to the plaintiff.

The plaintiff and defendant were the administrators of the -estate of one David C. Hopkins, deceased, the latter being the husband of the plaintiff at the time of his death. This cow was put in the inventory of the estate by the defendant; but the plaintiff informed the latter at the time that the cow belonged to her. Nevertheless the plaintiff, together with the defendant, verified the inventory and the cow was sold, together with other property, at a public auction, and the defendant received for her $18.50 at such sale.

The learned county judge, in reversing the judgment of the justice, put his decision upon the ground that -it would be gross injustice to allow the plaintiff to waive the claim after so long a time, and have the estate of her husband increased by the amount received for the cow, after a final settlement of the estate when the defendant has no chance to reimburse himself, or get a further adjustment of his accounts. But we do not understand that there is any principle of estoppel in the facts disclosed which could be Applicable to this case. The plaintiff, evidently, was not well acquainted with the mode of. conducting the buáiness in the surrogate’s court, though the defendant apparently was. She did no .act which led the defendant into doing anything, or incurring any ■obligation, which he would not have done or incurred except for such acquiescence. He admits that the plaintiff told him that the cow was hers, and then he advised her not to insist upon her •claim. But she did insist upon it, as to the defendant, consistently.

For this reason we think that the judgment of the county court should be reversed, and that of the justice affirmed.

Moreover, we think there was some misapprehension on the part of the county judge of the testimony of the defendant. The latter testified that when a demand for the proceeds of the sale was made upon him, he then had in his hands sufficient moneys to pay the same, which fund had " been realized from the sale of real estate of the decedent for the payment of debts.

There is another question in the case, not considered by the learned county judge, relating to testimony touching the declaration of the deceased to the effect that the cow did not belong to him. But we deem this not of sufficient moment to cause a reversal of the judgment of the justice, because there was other and satisfactory evidence establishing the fact of ownership in the plaintiff. Indeed, there is no evidence in the case seriously contro verting that fact; and, consequently, there being no estoppel, the plaintiff had a right to recover the money.

Judgment of the county court reversed and that of the justice -of the peace affirmed, with costs in both courts.

Dwight, P. J., and Lewis, J., concur.  