Hudgins, J.,
delivered the opinion of the court.
This case involves the validity of a will.
Mary Thomas, whose age was estimated to be anywhere from 60 to 80 years, was one of seven or eight children of Albert Brown and wife, respectable Negroes, who owned and lived on a small tract of land near Shadwell about six miles east of Charlottesville, Virginia. All of these children except Rosa Belle Gilmer, who lived and worked in Charlottesville, at or before maturity left their parental home and went to Washington or West Virginia. Mary was a steady worker and 'frugal. While working in Washington she saved nearly $10,000. In 1927, she returned to her parental home and lived there wtih her father until he died in 1937. She continued to live on the tract of land inherited by her and her brothers and sisters from their parents until [634] late in 1939. During this time she lived alone except for short periods when Martha Gilmer or Henrietta Brown stayed with her. Rosa Belle Gilmer drove from Charlottesville to Mary’s home twice a week and took her food, clothing and other necessities. Mary regarded Rosa Belle as her closest relative and the one to whom she turned for aid and comfort. Some of Mary’s brothers and sisters visited her once or twice a year. Her brother John brought her a ton of coal and made other small gifts.
On or about February 17, 1939, Rosa Belle Gilmer took Mary to the office of W. E. Duke, who for many years had been the attorney for this Negro family, and they informed him that Mary had been “flimflammed” of $1,500 of her hard-earned savings by a strange Negro woman upon a false promise that this stranger would buy a farm near Richmond and take care of Mary for the rest of her life. Mary had paid the stranger $1,500 in a lawyer’s office in Richmond, after which the stranger had disappeared with Mary’s money and could not be apprehended. These two Negro women asked Mr. Duke to take and keep safely all of Mary’s property. Mr. Duke declined to assume this responsibility on their mere request, but he advised them to have a guardian or committee appointed for Mary.
Mr. Duke requested Mr. Homer Richey, another Charlottesville attorney, to draw the proper petition for the appointment of a committee. On February 22, Rosa Belle, with Mary, returned to Mr. Duke’s office and signed and swore to the petition. On the same morning the petition was presented to the Honorable Lemuel F. Smith, judge of the Circuit Court of Albemarle county. The judge appointed a guardian ad litem for Mary, and, after examining the two women in open court, adjudged that Mary’s infirmities did not require the committal of her person to a guardian but that “Mary Thomas by reason of mental and physical infirmity, impaired health and advanced age, is incapable of talcing proper care of her property and incapable of handling and managing said estate and has been so for some years,” and named Messrs. Duke and Richey committees for her.
[635] The two Negro women returned to Mr. Duke’s office from the court house and Mr. Duke, at Mary’s request, wrote a will bequeathing and devising all of Mary’s property to Rosa Behe Gilmer, should she survive the testatrix and upon the condition that she take care of the testatrix during the rest of her natural life. In the event that Rosa Belle Gilmer predeceased the testatrix, the property was bequeathed and devised to two nieces, Henrietta Brown and Martha Gilmer. The will was duly executed in the presence of two subscribing witnesses.
Mary returned to her home in the country and continued to live there alone. Rosa Belle Gilmer continued to visit her twice a week and expended the $15 a month allowed by the court and such additional sums of her own as necessary for the support and maintenance of Mary Thomas.
Several months after the will was written, a sister of Mary Thomas residing in Washington, while on a visit to Charlottesville, saw a copy of Mary’s will in Mr. Duke’s office.
In November, 1939, John A. Brown visited his sister and stated that he found Mary in a deplorable condition, lacking food and clothing. He took her with him to Washington, where she died on October 24, 1940.
It seems that the will, which had been left with Mr. Duke for safekeeping, had been misplaced and was not found until eighteen months or more after Mary’s death. In the meantime, John A. Brown, a brother, and four sisters of Mary Thomas filed the bill in this case against the other heirs at law and Homer Richey and W. E. Duke, committees, praying that Rosa Belle Gilmer be compelled to offer the alleged will for probate and that complainants be allowed to contest its validity; that an administrator be appointed on the estate of Mary Thomas and required to settle his accounts in the cause; and that W. E. Duke and Homer Richey be required to settle their accounts as committees in this proceeding. The respondents filed separate answers, after which the parties agreed “that said cause and all matters of law and fact at issue therein shall be referred to George Gilmer, one of the Commissioners of this Court.”
[636] Of the seven issues submitted to this commissioner, the first is stated thus:
“Whether said Mary Thomas was mentally competent to execute the will made by her on the 22 day of Feb., 1939, and whether the same should be declared to be valid and the true last will and testament of the said Mary Thomas, or whether said will should be set aside and declared to be null and void.”
The commissioner, in an elaborate report which was approved by the trial court, held that the filing of the petition and participation in the proceeding for the appointment of a committee estopped Rosa Belle Gilmer from asserting in this suit that Mary Thomas possessed testamentary capacity on the day the order was signed and the will, was executed.
The precise question presented is whether the issues in a proceeding to appoint a guardian or committee for an adult are the same as the issues in a suit to determine the testamentary capacity of the same adult.
Judicial estoppel and res judicata are frequently used interchangeably and have the same significance. Estoppel, because it concludes a party from alleging the truth, must be certain to every intent and its scope should not be extended by argument or • inference.
“It is essential to an estoppel by record that the identical question upon which it is invoked was in issue in the former proceeding.
“ * * * . ‘There must be an identity of issues, and by this is meant that the issue raised in the second suit, upon which the evidential force of the former judgment is to be directed, must be identical with the issue, or one of the issues, raised and determined in the first action.’ ” Chesapeake, etc., Ry. Co. v. Rison, 99 Va. 18, 34-5, 37 S. E. 320.
We have repeatedly held that a party may not assume successive positions in the course of a suit, or series of suits, with reference to the same fact or state of facts, which are inconsistent with each other, or mutually con[637] tradictory. Burch v. Grace St. Bldg. Corp., 168 Va. 329, 340, 191 S. E. 672, 677.
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Hudgins, J.,
delivered the opinion of the court.
This case involves the validity of a will.
Mary Thomas, whose age was estimated to be anywhere from 60 to 80 years, was one of seven or eight children of Albert Brown and wife, respectable Negroes, who owned and lived on a small tract of land near Shadwell about six miles east of Charlottesville, Virginia. All of these children except Rosa Belle Gilmer, who lived and worked in Charlottesville, at or before maturity left their parental home and went to Washington or West Virginia. Mary was a steady worker and 'frugal. While working in Washington she saved nearly $10,000. In 1927, she returned to her parental home and lived there wtih her father until he died in 1937. She continued to live on the tract of land inherited by her and her brothers and sisters from their parents until [634] late in 1939. During this time she lived alone except for short periods when Martha Gilmer or Henrietta Brown stayed with her. Rosa Belle Gilmer drove from Charlottesville to Mary’s home twice a week and took her food, clothing and other necessities. Mary regarded Rosa Belle as her closest relative and the one to whom she turned for aid and comfort. Some of Mary’s brothers and sisters visited her once or twice a year. Her brother John brought her a ton of coal and made other small gifts.
On or about February 17, 1939, Rosa Belle Gilmer took Mary to the office of W. E. Duke, who for many years had been the attorney for this Negro family, and they informed him that Mary had been “flimflammed” of $1,500 of her hard-earned savings by a strange Negro woman upon a false promise that this stranger would buy a farm near Richmond and take care of Mary for the rest of her life. Mary had paid the stranger $1,500 in a lawyer’s office in Richmond, after which the stranger had disappeared with Mary’s money and could not be apprehended. These two Negro women asked Mr. Duke to take and keep safely all of Mary’s property. Mr. Duke declined to assume this responsibility on their mere request, but he advised them to have a guardian or committee appointed for Mary.
Mr. Duke requested Mr. Homer Richey, another Charlottesville attorney, to draw the proper petition for the appointment of a committee. On February 22, Rosa Belle, with Mary, returned to Mr. Duke’s office and signed and swore to the petition. On the same morning the petition was presented to the Honorable Lemuel F. Smith, judge of the Circuit Court of Albemarle county. The judge appointed a guardian ad litem for Mary, and, after examining the two women in open court, adjudged that Mary’s infirmities did not require the committal of her person to a guardian but that “Mary Thomas by reason of mental and physical infirmity, impaired health and advanced age, is incapable of talcing proper care of her property and incapable of handling and managing said estate and has been so for some years,” and named Messrs. Duke and Richey committees for her.
[635] The two Negro women returned to Mr. Duke’s office from the court house and Mr. Duke, at Mary’s request, wrote a will bequeathing and devising all of Mary’s property to Rosa Behe Gilmer, should she survive the testatrix and upon the condition that she take care of the testatrix during the rest of her natural life. In the event that Rosa Belle Gilmer predeceased the testatrix, the property was bequeathed and devised to two nieces, Henrietta Brown and Martha Gilmer. The will was duly executed in the presence of two subscribing witnesses.
Mary returned to her home in the country and continued to live there alone. Rosa Belle Gilmer continued to visit her twice a week and expended the $15 a month allowed by the court and such additional sums of her own as necessary for the support and maintenance of Mary Thomas.
Several months after the will was written, a sister of Mary Thomas residing in Washington, while on a visit to Charlottesville, saw a copy of Mary’s will in Mr. Duke’s office.
In November, 1939, John A. Brown visited his sister and stated that he found Mary in a deplorable condition, lacking food and clothing. He took her with him to Washington, where she died on October 24, 1940.
It seems that the will, which had been left with Mr. Duke for safekeeping, had been misplaced and was not found until eighteen months or more after Mary’s death. In the meantime, John A. Brown, a brother, and four sisters of Mary Thomas filed the bill in this case against the other heirs at law and Homer Richey and W. E. Duke, committees, praying that Rosa Belle Gilmer be compelled to offer the alleged will for probate and that complainants be allowed to contest its validity; that an administrator be appointed on the estate of Mary Thomas and required to settle his accounts in the cause; and that W. E. Duke and Homer Richey be required to settle their accounts as committees in this proceeding. The respondents filed separate answers, after which the parties agreed “that said cause and all matters of law and fact at issue therein shall be referred to George Gilmer, one of the Commissioners of this Court.”
[636] Of the seven issues submitted to this commissioner, the first is stated thus:
“Whether said Mary Thomas was mentally competent to execute the will made by her on the 22 day of Feb., 1939, and whether the same should be declared to be valid and the true last will and testament of the said Mary Thomas, or whether said will should be set aside and declared to be null and void.”
The commissioner, in an elaborate report which was approved by the trial court, held that the filing of the petition and participation in the proceeding for the appointment of a committee estopped Rosa Belle Gilmer from asserting in this suit that Mary Thomas possessed testamentary capacity on the day the order was signed and the will, was executed.
The precise question presented is whether the issues in a proceeding to appoint a guardian or committee for an adult are the same as the issues in a suit to determine the testamentary capacity of the same adult.
Judicial estoppel and res judicata are frequently used interchangeably and have the same significance. Estoppel, because it concludes a party from alleging the truth, must be certain to every intent and its scope should not be extended by argument or • inference.
“It is essential to an estoppel by record that the identical question upon which it is invoked was in issue in the former proceeding.
“ * * * . ‘There must be an identity of issues, and by this is meant that the issue raised in the second suit, upon which the evidential force of the former judgment is to be directed, must be identical with the issue, or one of the issues, raised and determined in the first action.’ ” Chesapeake, etc., Ry. Co. v. Rison, 99 Va. 18, 34-5, 37 S. E. 320.
We have repeatedly held that a party may not assume successive positions in the course of a suit, or series of suits, with reference to the same fact or state of facts, which are inconsistent with each other, or mutually con[637] tradictory. Burch v. Grace St. Bldg. Corp., 168 Va. 329, 340, 191 S. E. 672, 677.
This court has also held that the appointment of a guardian or committee for the person and property of another is not conclusive evidence as to the mental capacity of such person to execute a deed (Waddy v. Grimes, 154 Va. 615, 153 S. E. 807); nor is a commitment to the insane asylum (Reed v. Reed, 108 Va. 790, 62 S. E. 792; Rust v. Reid, 124 Va. 1, 97 S. E. 324). In each of these cases the deed or will was executed some time after the date of the adjudication. See Wolfrey v. Swank, 184 Va. 922, 37 S. E. (2d) 17.
These decisions are in accord with the general rule that, in the absence of a controlling statute, the mere fact that one is under a guardianship does not deprive him of the power to make a will. Anno. 8 A. L. R. 1375; Page on Wills, Vol. 1, 2d Ed., sec. 710. Of course, mental capacity must be ascertained as of the date the instrument attacked was executed.
“Mental weakness is not inconsistent with testamentary capacity. A less degree of mental capacity is requisite for the execution of a will than for the execution of contracts and the transaction of ordinary business. One may be capable of making a will yet incapable of disposing of his property by contract or of managing his estate. Greene v. Greene, 145 Ill. 264, 33 N. E. 941. Mental strength to compete with an antagonist and understanding to protect his own interest are essential in the transaction of ordinary business, while it is sufficient for the making of a will that the. testator understands the business in which he is engaged, his property, the natural objects of his bounty, and the disposition he desires to make of his property. Ring v. Lawless, 190 Ill. 520, 60 N. E. 881; Greene v. Maxwell, 251 Ill. 335, 96 N. E. 227, 36 L. R. A. (N. S.) 418. The condition of being unable, by reason of weakness of mind, to manage and care for an estaté, is not inconsistent with capacity to make a will. Rice v. Rice, 50 Mich. 448, 15 [638] N. W. 545; Williams v. Robinson, 39 Vt. 267.” In re Weedman's Estate, 254 Ill. 504, 98 N. E. 956, 957.
“The adjudications of the probate court establishing facts necessary for the appointment of a conservator of the property of the testatrix were entitled to such weight as the jury saw fit to give them in determining the questions of her susceptibility to improper influence and of her soundness of mind. These adjudications were not decisive but were to be considered in connection with all the other pertinent evidence.” McLoughlin v. Sheehan, 250 Mass. 132, 145 N. E. 259, 261.
The converse of this proposition is likewise true. It was held, in Emry v. Beaver, 192 Ind. 471, 137 N. E. 55, that a judgment declaring a testator of sound mind in a proceeding for the appointment of a guardian was not conclusive evidence of his testamentary capacity in a subsequent proceeding instituted to determine the validity of his will.
In Lewandowski v. Zuzak, 305 Ill. 612, 137 N. E. 500, it was held that the issue in a proceeding to commit a party to the insane asylum was not the same as the issue in a contest to test the validity of the will, and that evidence introduced in one case was not admissible in the other.
It was held, in Keely v. Moore, 196 U. S. 38, 25 S. Ct. 169, 49 L. Ed. 376, that a man may be insane to the extent of being dangerous if set at liberty and yet possess sufficient mental capacity to make a will.
In the execution of a will, “the testator has no antagonist to meet, but in ordinary business transactions are involved a contest of judgment, reason, and experience, and the exercise of mental powers not necessary in the testamentary disposition of property.” Greene v. Maxwell, supra.
“The judicial determination of the facts that must be proved, under the statute, before a conservator can be appointed, and the status of the person whose property is held by a conservator, are some evidence of weakened faculties, affecting his ability properly to manage and dispose of property. It does not create a presumption of incapacity to make a will, but it is a fact proper for the consideration of [639] a jury in determining the question of soundness of mind.” Clifford v. Taylor, 204 Mass. 358, 360, 90 N. E. 862.
The test of testamentary capacity stated in In re Weedman’s Estate, supra, is the test applied in this jurisdiction. “Neither sickness nor impaired intellect is sufficient, standing alone, to render a will invalid. If at the time of its execution the testatrix was capable of recollecting her property, the natural objects of her bounty and their claims upon her, knew the business about which she was engaged and how she wished to dispose of her property, that is sufficient.” Tabb v. Willis, 155 Va. 836, 156 S. E. 556; Redford v. Booker, 166 Va. 561, 185 S. E. 879.
The provisions of the pertinent statutes (Code, sections 1017 et seq.) reveal the legislative intent to recognize a distinction between, and to make different provisions for, the insane and the mentally or physically incapacitated. Before a person may be adjudged insane, the statute requires notice and an adjudication by a Commission composed of a judicial officer and two licensed and reputable physicians. “Sanity is the normal condition of the human mind, and every man is presumed to be sane until the contrary is made to appear. After adjudication of insanity, a presumption of insanity continues, but a subsequent adjudication of restoration to sanity by competent authority restores the previous presumption of sanity until the contrary is made to appear.” Rust v. Reid, 124 Va. 1, 24-5, 97 S. E. 324..
The primary object of the pertinent statutes dealing with the insane is the care and custody of the person so afflicted. The primary object of the statutes dealing with mentally or physically incapacitated persons is the management of the property for their benefit.
Persons whose mental powers have been weakened by disease, old age or otherwise are easily influenced, often to their detriment. They become easy prey for the unscrupulous, who may, and sometimes do, fraudulently deprive or strip them of a part or all of their property.
Code 1942 (Michie), sec. 1080a, first enacted in 1932 (Acts 1932, p. 518), was designed to safeguard the [640] property of such persons from dissipation by their own improvidence and to preserve it for their own support and maintenance and, incidentally, for the benefit of the heirs or legatees and devisees. If some protection of this nature were not available, such persons might become charges of the State. The testamentary capacity of persons afflicted with this type of mental disorder is not necessarily destroyed. Such capacity depends upon the degree of mental impairment.
“Senile dementia is a form of imbecility due rather to the structural degeneracy caused by old age than to any specific disease. It is progressive in character, and in its advanced stages ‘the brain is well-nigh stripped of its functions,’ and it results in profound general mental incapacity. It is one of the most difficult of the many difficult questions of mental capacity; not because the law on the question is doubtful, but because it is so difficult to determine the point in its progress at which the faculties are so far impaired that they fall below the standard of legal capacity.” Page on Wills, Vol. 1, 2d Ed., p. 254.
A review of the decisions reveals that the testamentary capacity of such persons is tested by the same formula as in cases of insanity. The test to determine whether a person is capable of properly handling and managing his estate is not the same, as heretofore stated.
The commissioner and the trial court were in error when they declared that the issues in the two proceedings were the same, and that Rosa Belle Gilmer was estopped from asserting that Mary Thomas had testamentary capacity.
This eliminates from our consideration the primary reason which caused both the commissioner and the trial court to hold that the will was invalid.
That part of the commissioner’s report dealing with mental capacity indicates that, in determining Mary Thomas’ testamentary capacity, he placed too much emphasis on the proceeding for the appointment of the committees—he held, in effect, that it was conclusive. The general rule is that the record of such proceeding is pertinent evidence to be [641] weighed with other evidence in determining the testamentary capacity. The authorities are hopelessly divided on the probative value to be given such adjudication. In addition to the authorities heretofore cited, holding that such evidence does not make a prima facie case of testamentary incapacity, see In re Moore’s Will,, 191 Iowa 135, 181 N. W. 763; In re Cowdry’s Will, 77 Vt. 359, 60 A. 141, 3 Ann. Cas. 70; In re Bean’s Estate, 159 Wis. 67, 149 N. W. 745. The authorities holding such adjudication to be prima facie evidence of testamentary incapacity are cited in the footnote.