Fahrbach v. Fahrbach ( 1925 )

Rosenberry, J.

The trial court concluded that the note, according to its terms, was to become due upon the death of Peter Diehl, Sr. Peter. Diehl in his lifetime had made provision for some of his children and had taken back from them certain notes, which it was understood were to be canceled and surrendered at his death. These notes were all mentioned in the will of Peter Diehl, Sr. The note given by the defendants was not so mentioned, and on the contrary, by the express terms of the will, this note was considered a part of his estate and was given to the plaintiff. As stated, the court found against the defendants as to any agreement ever having been made by the terms of which the note was to be void. Whatever the situation of the defendants might have been with respect to their liability upon the note, when they or one of them having possession of it turned it over to the administrator of the estate of Peter Diehl, Sr., permitted it to be regarded in the administration of the father’s estate as a valid and subsisting obligation, knew that it was assigned and transferred to the plaintiff, accepted an assignment of one third of the residue of the estate which was increased by the amount of the note, as that amount would have been otherwise payable out of the estate of Peter Diehl, Sr., they are clearly estopped to deny the validity of the note at this time, If they had denied liability upon it seasonably, the legacy to the plaintiff might have been paid out of other funds. It cannot be disputed that they were well aware of the terms of the note in its altered form. Having permitted the plaintiff to be placed in a position where, if their contention is now sustained, the plaintiff will lose his entire legacy, it is apparent that the plaintiff has materially changed his position relying upon the supposed validity of the instrument awarded to him from his grandfather’s estate. The fact of the material alteration, if it did exist, was solely within the knowledge of the defendants.

Under these circumstances it is considered that the trial court correctly held that the defendants are now estopped from asserting the invalidity of the note.

By the Court. — Judgment affirmed.