
    Henry Tiebout v. Louisa J. Millican et al.
    (Case No. 4923.)
    1. Abandonment by the widow of an allowance made in lieu of homestead.— An allowance was made to a widow from the estate of the deceased husband in 1855 in lieu of homestead. In 1880 her claim to an unpaid balance of such allowance was resisted by creditors of the estate, who pleaded an agreement between the creditors, the administrator and the widow, that she should be permitted to retain and appropriate assets in her hands, which she did appropriate, in lieu of the allowance, and that she abandoned all claim to the unpaid balance. Held:
    
    (1) That the facts stated constituted a good defense to the claim,
    g) That the claim was a stale demand
    Appeal from Robertson. Tried below before the Hon. W. E. Collard.
    This was a proceeding begun in the county court of Robertson county by Mrs. Louisa Millican (who was at the death of Glover W. Blanton, deceased, his surviving widow), filed in the year 1880, for the purpose of enforcing the payment of an allowance made for her benefit at the December term of that court, A. D. 1855, in lieu ■of the homestead and exempt property.
    On the 19th of May, 1882, her application was heard, and the court adjudged that it appeared of record that there remained due her on account of said allowance made December 31,1855, a balance of $386, and adjudged that E. G-,. Jackson, administrator de bonis inon of the estate of Blanton, pay to her that stim with interest thereon.
    An appeal Was taken to the district court by W» H> Hammond and Henry Tiebout, intervenor. The pleadings in the district court Were voluminous, and their statement will not aid to an understanding of the opinion.
    Hammond filed a plea in opposition to the application of Mrs. Millican, in behalf of himself and others whose interests as creditors of the estate he represented, to which he afterwards filed an amendment as a repleader; and, at the trial, filed also a trial amendment. These pleadings, in substance, charged that an allowance of $800 was made for the widow in 1855; that she was at the time in the possession of $3,000 Worth of the property of the estate, which, by mutual forbearance arid acquiescence of all the parties, she was permitted to retain, and which she accepted and retained in full satisfaction and settlement of all claims against the estate, and of all demands of the administrator and creditors of said estate against her. That it was mutually agreed between themselves, Louisa J. Blanton for herself, and Williams in his capacity as administrator of the estate, that Louisa J. Blanton should accept and retain the property taken and appropriated by her in full satisfaction of the order of court, and of all claims of the estate against her for the property, and that the same should be.a full and final settlement of all claims; and the same was from that time forward mutually understood and acted on by the parties, by reason of all of which her claim was paid off and satisfied.
    To this the appellees filed general and special exceptions, which Were sustained by the court.
    The appellants assigned as error the above ruling,
    
      Hamman & Adams, for appellant.
    
      Field & Campbell, for appellees.
   Walker, P. J. Com. App.

— The question presented under the assignment complaining that the court sustained exceptions to the amended pleadings of the appellants does not question the conclusiveness of the judgment or order of the county court in 1855, making an allowance to Mrs. Millican, as the then surviving widow of her former deceased husband, nor does it involve' the pronositi.on as to whether the indebtedness, or the liability of the widow to the estate, may be interposed as a set-off or counterclaim against the enforcement of an order allowing- her a stipulated amount in lieu of homestead and exempt property. The authorities cited in the brief of counsel for appellees imply that they regard the question before us as involving the considerations above suggested.

The true question made by the appellants was whether Mrs. Millican relinquished and abandoned the allowance that was made to her under circumstances that now conclude her from asserting any claim to the enforcement of the order of the county court making it. The amended plea of opposition alleged that of the allowance of $800 made to her, $414 was paid to her at or about the time of the allowance; that she was in possession of property belonging to the estate of the value of $8,000, which she had taken wrongfully and in violation of the rights of the creditors of the estate. That no steps were taken by T. B. Williams, the administrator, during his life to recover the same from her; that one Feeney was appointed administrator de bonis non in 1858, after the appropriation by Mrs. Millican of said property; that more than two years had elapsed after said appropriation, and that all rights of action against her had become barred and lost by lapse of time. That Mrs. Millican “ did not afterwards demand the payment of said balance of $388, but abandoned her claim against the estate, well knowing that she had in her possession as aforesaid property belonging to said estate largely more than the balance due her from said estate, for the satisfaction thereof; nor did the administrator or the creditors demand .of her the restitution of said property, but by mutual forbearance and acquiescence on the part of all of the said parties, said Louisa J. Blanton (Mrs. Millican) was permitted to retain said property, and the same was so accepted and retained in full satisfaction and settlement of all claims in favor of said Louisa J. Blanton against said estate, and of all demands of the administrator and creditors of said estate against her.”

Undoubtedly it was competent for Mrs. Blanton (afterwards Mrs. Millican) to abandon and relinquish to the use of the estate of her deceased husband her right to demand or receive the benefit of the allowance that was made to her. It was competent for her to thus relinquish it by a contract entered into by her for that purpose, or ■she might, sua volente, do so upon any reason or consideration satisfactory to herself. And if one has apparently thus abandoned a right, as evidenced by acts or non-action which have led others justly and reasonably to believe that he has so abandoned his right, notwithstanding he may not have intended to abandon it, he will be concluded from asserting it against such others by the doctrine of equitable estoppel.

Tlia^ facts alleged being taken as true, it would seem that the long acquiescence on the part of Mrs. Millican, if otherwise left unaccounted for, would at least afford evidence of an intention to abandon her right to demand the unpaid balance, and operate to estop her certainly from claiming interest on the same, even though as a fact it should appear that she did not attempt to abandon her claim. If her seeming acquiescence and satisfaction with the amount of $414 actually received, and the use and benefits realized by her from other property, during a period of about twenty-eight years, had the effect to induce the administrator and the creditors to believe and rely on the fact that she had abandoned all claim for further payment of her allowance, she would occupy a position forbidding any pretensions for a claim to interest on the claim, which is allowable on the principle of compensation to be given for withholding the payment of a demand due and claimed by the beneficiary. If creditors and the administrator had been led by her acts to rely upon her non-claim of the amount of balance asserted now to be due, she will be estopped from claiming the right to charge the common fund in the hands of the administrator for the payment of creditors, with interest on said balance, although in fact she may have not intended to abandon her claim. See 2 Story’s Eq., secs. 1534, 1535, 1536.

The appellants charge in their pleading an actual abandonment in intention and in fact. If Mrs. Millican did abandon her said claim, and so intended to do, she cannot now assert it. Her demand at this late dav would be a stale demand. See Vogelsang v. Dougherty, 46 Tex., 467. Lapse of time will create the presumption that parties have waived or settled their rights; and hence stale claims are discountenanced, unless attended with circumstances that will repel such presumption. De Cordova v. Smith, 9 Tex., 129. See, also, Glasscock v. Nelson, 26 Tex., 150; and see 2 Story Eq., sec. 1552, and authorities there cited, for the report of an English case, in which, as no excuse for the delay was given, the learned judge said: “I have thought that a due regard to justice, and the necessity of compelling parties to enforce their demands with diligence, requires me to dismiss this bill.”

A right in land or a chattel may be abandoned. “Abandonment,” said Chief Justice Wheeler in Dikes v. Miller, 24 Tex., 424, “is the relinquishment of a right; the giving up of something to which one is entitled. If the owner sees proper to abandon his property, and evidences his intention by an act legally sufficient to vest or divest the ownership, why may he not do so in the case of land, as well as of a chattel?” .... And, “It would seem that there is nothing in principle to prevent the owner from abandoning his right of property in land, provided the intention to do so be evidenced by an act or deed legally sufficient to operate a divestiture of his title.”

We am of the opinion that the court erred in sustaining the exceptions of the appellees to the amended pleadings of the appellant, and that the judgment therefore ought to be reversed and the cause remanded.

Reversed and remanded.

[Opinion adopted May 6, 1884.]  