Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5153, former Civil Code 1910, § 5739, former Code 1933, § 38-117, and former O.C.G.A. § 24-4-26 are included in the annotations for this Code section.

Executors.

- When the plaintiff maintained a suit for specific performance of the contract alleged, in which plaintiff sought to have decreed in oneself title to the entire property owned by plaintiff's testatrix at the time of the testatrix's death, and devised by the testatrix and given to the executor (plaintiff) and other beneficiaries, it was held that plaintiff was estopped on the ground that plaintiff had the will probated and qualified as executor, and continued in the office of executor for two years, during which time plaintiff had discharged the duties of plaintiff's office and had paid out large sums of money; this conduct being inconsistent with plaintiff's claim of title to the entire estate of plaintiff's testatrix. Hardeman v. Ellis, 162 Ga. 664, 135 S.E. 195 (1926) (decided under former Civil Code 1910, § 5739); Scoggins v. Strickland, 265 Ga. 417, 456 S.E.2d 208 (1995);(decided under former O.C.G.A. § 24-4-26).

Multiple executors.

- Rule which prohibits a person from suing oneself does not apply when there are two or more executors. Spratlin v. Spratlin, 216 Ga. 27, 114 S.E.2d 370 (1960) (decided under former Code 1933, § 38-117).

Ownership in estate.

- When ownership was once shown to be in an estate, the executor cannot acquire title by adverse holding by reason of the former statute.(decided under former Civil Code 1895, § 5153) Dozier v. McWhorter, 117 Ga. 786, 45 S.E. 61 (1903).

Claim anterior to appointment.

- Administrator who sold property at public outcry, executing a deed, and signing as administrator was estopped from setting up any title or interest, based upon a claim anterior to the administrator's appointment. Gammage v. Perry, 29 Ga. App. 427, 116 S.E. 126 (1923) (decided under former Civil Code 1910, § 5739).

Title not vested.

- Rule of estoppel against an administrator does not operate if the legal title to land in controversy was not vested in the decedent at the time of death. Crummey v. Crummey, 190 Ga. 774, 10 S.E.2d 859 (1940) (decided under former Code 1933, § 38-117).

Mistake of law.

- When claimant contended that the former statute should not be applied because claimant did not know at the time claimant was appointed administrator that claimant had title to the land, and testified that the claimant believed that when the claimant lost the claimant's deed the claimant's title had been killed, the claimant acted with full knowledge of the facts, but under a mistake of law as to the claimant's legal rights; such testimony was not sufficient to demand a finding that the claimant was not estopped under the former statute.(decided under former Code 1933, § 38-117) Wright v. Thompson, 190 Ga. 173, 8 S.E.2d 640 (1940).

Claim not setting up title.

- There is nothing inimical in the principle that an heir, next of kin, or creditor is favored in the appointment of an administrator, and is not precluded from receiving proper share or claim from the assets of the estate, since such a claim does not have the legal effect of setting up a "title adverse to their trust." Crummey v. Crummey, 190 Ga. 774, 10 S.E.2d 859 (1940) (decided under former Code 1933, § 38-117).

Guardian.

- Law will not permit a guardian to act in such way that the guardian's own personal interest may come in conflict with the interest of the guardian's ward with respect to the estate of the latter in the guardian's charge. Allen v. Wade, 203 Ga. 753, 48 S.E.2d 538 (1948) (decided under former Code 1933, § 38-117).

Trustee of corporations.

- Principles apply to a trustee holding choses in action for a corporation. Caswell v. Vanderbilt, 35 Ga. App. 34, 132 S.E. 123 (1926) (decided under former Civil Code 1910, § 5739).

Inconsistent positions.

- When one is in a situation in which one may elect between two inconsistent positions or proceedings, the choice of one's position or proceeding must be made before bringing suit. One cannot bring either action without selecting and determining to accept and occupy a position consistent with that action or position and inconsistent with the other. Spratlin v. Spratlin, 216 Ga. 27, 114 S.E.2d 370 (1960) (decided under former Code 1933, § 38-117).

ALR.

- Acts done by executor or administrator in a representative capacity as estoppel in individual capacity, or vice versa, 110 A.L.R. 599.

Action by employee in reliance on employment contract which violates statute of frauds as rendering contract enforceable, 54 A.L.R.3d 715.