Opinion, per NEWMAN, J.

here, for it appears that upon the hearing of both the application for probate and the application for letters testamentary there was a finding by the probate court that McLean was a resident of Fayette county. When this finding was made and the other statutory requirements were complied with the court was authorized to admit the will to probate and issue letters testamentary thereon. It may have been erroneous in its decision, but the person aggrieved had an adequate remedy at law to correct the error. Section 10521, General Code, provides that the decision of the probate court as to its jurisdiction may be reviewed on error, and plaintiff in this case prosecuted error to the court of common pleas where the judgment of the probate court was affirmed. It appears that an error proceeding is now pending in the court of appeals of Fayette county to review the judgment of the court of common pleas. If the judgments of the probate court of Fayette county in admitting the paper writing to probate and in issuing letters testamentary thereon were erroneous, it is to be presumed that these judgments will be reversed.

Again, in this proceeding we are concededly not concerned with the question whether the paper writing admitted to probate by the probate court of Fayette county was or was not the last will and testament of John B. McLean, or whether or not he was competent to make a will on December 29, 1915, while the adjudication of imbecility was in full force and effect and while he was under guardianship. That question, of course, can be determined in an independent action to contest the will.

Syllabus.

To conclude, if the judgment of the probate court of Fayette county was based upon erroneous conclusions of law or fact, it was subject to attack in a proceeding in error. It cannot be reviewed or set aside in a proceeding in prohibition.

Writ refused.

NICHOLS, C. J., WANAMAKER, JONES, MATTHIAS, JOHNSON and DONAHUE, JJ., concur.

Kelley et al. v. Hazzard ET AL.

Making, probating and contest of wills·

Statutory control - Right of contest not forfeited by previous acceptance, when -- Misrepresentation by executor - Tender back of legacy before trial -Sufficiency of estoppel against will contest.

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1. In Ohio the making, probating and contesting of wills is controlled by the statutes.

2. Where an action to contest a will is begun within the statutory period, the right to maintain such action is not forfeited by the fact that the party plaintiff consented in writing to the probating of the will and accepted a legacy thereunder, where such consent and acceptance were induced by false and fraudulent representations as to the amount of the estate and the testamentary capacity of the testator, made by the executor under the will with the intent of inducing the legatee to abide by the will.

3. Tender back of such legacy is not a condition precedent to bringing an action to contest a will. Tender back at any time before trial is sufficient.

4. A plea of estoppel against such will contest, setting forth the consent to the probate of the will, the payment of the legacy and retention of the same, is not sufficient in law as a defense.

Opinion, per WANAMAKER, J.

In order to constitute an estoppel it is necessary that the representations made by conversation or conduct were relied upon resulting in a course of action which should not now in good conscience be disturbed.

(No. 15207 Decided March 6, 1917.)

ERROR to the Court of Appeals of Knox county.

The facts are stated in the opinion.

Mr. Frank Moore; Mr. Columbus Ewalt and Messrs. Douglass & Hutchison, for plaintiffs in

error.

Mr. L. C. Stillwell and Mr. Robert L. Carr, for defendants in error.

WANAMAKER, J. On May 4, 1910, the will of Margaret Hartman was duly probated in the probate court of Knox county, Ohio.

On August 12, 1911, Elizabeth Hazzard, a niece of said Margaret Hartman and a legatee under her will, filed her petition in the court of common pleas of Knox county to contest the validity of said will.

One of the defendants, James A. Kelley, as one of the legatees and as executor of said will, filed an answer. He pleaded that said Elizabeth Hazzard was estopped from contesting said will, because, first, she consented in writing to its probate, and, second, she accepted and has retained the legacy provided for her in the will.

Elizabeth Hazzard filed a reply, admitting that she had heard the will read and consented in

Opinion, per WANAMAKER, J.

writing to its probate; that she accepted her legacy and receipted for the same; and that she still retains it.

By way of avoidance, she further pleaded that she was not aware of the real conditions of the will; that she was misled by the false representations of James A. Kelley concerning the amount of the estate and the condition of her aunt's mind; that she tendered back the legacy with interest, on January 24, 1913, after becoming aware of the true condition of the estate and the facts and circumstances surrounding the execution of the will; that the amount of the estate was more than $12,000, and that if said testatrix had died intestate plaintiff would have inherited more than one-half of the same; and that "she now stands ready and willing and offers to pay into court or to said Executor the full amount of said legacy of $800.00 with interest thereon, or is willing to allow said sum as a credit upon the share she is entitled to receive of said estate."

The defendant James A. Kelley filed a motion in the court of common pleas for judgment on the pleadings, which motion was sustained.

The court of appeals upon error reversed the judgment of the court of common pleas.

Error is now prosecuted to this court for the reversal of the judgment of the court of appeals.

The sole question is upon the pleadings, and boiled down resolves itself into this query: Did Elizabeth Hazzard, by her conduct, estop herself

Opinion, per WANAMAKER, J.

from contesting the will of her aunt, Margaret Hartman?

The estoppel charged against said Elizabeth Hazzard, whereby it is urged that she forfeited her right to contest the will, is what is known as estoppel in pais, or estoppel by conduct. It is sometimes referred to as equitable estoppel.

Numerous definitions have been given in which more or less loose legal language has been used, tending to confuse rather than clear the fundamental elements of estoppel. Sometimes it has been referred to as a rule of evidence; sometimes a rule of pleading; sometimes a rule of substantive law.

No matter how it may be technically regarded, at the bottom it is a rule administered by courts in the interest of substantial justice. It declares in brief that where one has, by conversation or conduct, induced another to take a certain course of action, either affirmative or negative, to his benefit or prejudice, said first party will not in good conscience and natural justice be permitted to subsequently, by conversation or conduct, declare the contrary. He is now stopped or prevented from doing the contrary to what he had theretofore done, upon which another party relied, and had good cause to rely, to his pecuniary benefit or prejudice.

Now, what did Elizabeth Hazzard say or do that wrongfully influenced or misled James A. Kelley, either personally or as executor, touching his conduct with reference to the will or estate of Margaret Hartman?