105 Ga. 563 | Ga. | 1899
This case, as the record shows, was treated in the trial below, by all the parties thereto and the judge, as an action against F. O. Foster and E. W. Butler as the executors respectively of the wills of A. G. Foster and Joshua Hill, deceased. It was argued before this court by both sides upon this theory. Whatever, therefore, may have been the true legal character of the petition, this court, under the circumstances, will consider it as against the defendants in their representative capacities. In Laverty v. Woodward, 16 Iowa, 1, it was held that where the descriptive words “ executor of ” etc., were not treated as surplusage by the parties or either of them in the trial court, they would not be so considered in the Supreme Court. In Twitty
As will be seen from the petition, the substance of which is. set forth in the reporter’s statement, the plaintiff, as administrator of Albert W. Foster, sought to recover of the defendants for-assets of the plaintiff’s intestate alleged to have been misapplied and misappropriated by the defendants. As before stated, the action was treated as charging the defendants as executors with the misapplication of such assets. The controlling question, under the demurrers, therefore, is, did the petition state a cause of action against the defendants in their capacities as executors ?’ In other words, were the estates of A. G. Foster and Joshua Hill liable to the plaintiff, if the allegations in his petition were true ?' We think not. While it is true that under section 3200 of the-Civil Code, “ all persons aiding and assisting trustees of any character, with a knowledge of their misconduct, in misapplying assets, are directly accountable to the persons injured,” yet it is a personal liability that the law puts upon the trustee and', those aiding him in such misappropriation of trust funds. The-rule that an executor or administrator is liable individually, and. not in his representative capacity, for injury to third parties by his tortious acts, is well established. 3 Williams, Ex’rs, *1691, 1126, and note 1; Schouler, Ex’rs, §§383-385. If F. C. Foster, as-executor of A. G. Foster, had money in his hands belonging to the estate of plaintiff’s intestate, and wrongfully paid it to E. W. Butler as executor of Hill, and Butler received it with knowledge of F. C. Foster’s misapplication of it, then they were joint tort-feasors, and, without more, liable individually to plaintiff as administrator, but manifestly the estates which they respectively represented would not be chargeable with their-misdoing.
There was no error in sustaining the demurrers to the petition, on the ground that it set out no cause of action against the defendants as executors.
Judgment affirmed.