The estate's capacity to pay a general legacy was not necessarily decided in prior proceedings that addressed only whether cheques created a liability, and accordingly issue estoppel did not arise. An executor's failure to plead the estate's incapacity to pay general legacies in prior proceedings was not unreasonable where a family provision claim (later abandoned) could have rewritten the will, legal costs were uncertain, and specific bequests might have failed. A general cross-examination question about impediments to paying bequests, answered without qualification, does not of itself demonstrate unfitness for the office of executor.
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