| Ga. | Dec 15, 1869
1. Thé important question in this case is, how far the acquiescence of Mrs. Davis in' the payment of this money to her children, binds her. It is admitted that there was a mistake. Bagley was the administrator of Mrs. Davis’ father, and also of Mrs. Davis’ husband. The share of Mrs. Davis in her father’s estate survived to her. Davis having died befyre he reduced it into possession, it formed no part of his (Davis’) estate. The act of the administrator in paying it over to himself, as administrator of Davis, and then paying it out to Davis’ heirs, was a mistake. Mrs. Davis was entitled to
This is not the case of a contract where both parties stand upon their own judgment, and where no special duty is cast upon either. Bagley is a trustee, an officer appointed by the law to perform a specified duty, to-wit: to administer this estate according to law; and the rules prescribing his duty are the law of the land. He had a duty to perform. If he failed, however ignorant or mistaken he may be, he cannot excuse himself. He has a mere ministerial duty to perform in paying out this estate, and if he pay any portion of it to one not entitled,- he is responsible to those entitled.
Mrs. Davis had no duty in the premises. She was under no obligation to keep Bagley informed as to the law; and her failure to instruct him as to his duties is no breach of any duty on her part. There is-no pretence of any fraud or concealment by her. Indeed, it appears affirmatively from the record that Bagley acted wholly without reference to any act or saying of hers. She, it is true, stood by and said-nothing, made no objection, simply because she did not know she had any right to object. Bagley was not misled by her. That is affirmatively proven.
We do not think she is estopped. Estoppel always implies that the person estopped has, by his act, misled the other. Code, section 3700. It was not Mrs. Davis’ duty to instruct Bagley as to the law. It was Bagley’s duty to obey the law. He was the actor, sworn and bonded, authorized to take counsel and charge the estate for it; and we can see no reason for excusing him from the performance of his duty because Mrs. Davis, who" was not bound to set him right, stood by and, in her own ignorance, permitted him to go wrong.
2. The payment of this money to those not entitled to it is a devastavit. It is still in hand; the receipt is null. Bagley, as administrator of Jones, is chargeable with that much- money. It does not necessarily belong to Mrs. Jones. It has never been legally separated from the estate of Jones. It is there for distribution among those entitled to it, whoever they may be. Mrs. Jones is one of the heirs-at-law,
3. Under our Acts, passed in 1865 and 1866, and under the Constitution of 1868, very liberal and just provisions are made for the protection of administrators who, in good faith, and under the laws in force at the time, made investments, which, without their fault, have turned out badly. There is also an Act protecting administrators from liability for payments made to persons who, as the estate then stood, appeared plainly entitled to such payments, but who, as has since become apparent, were not entitled. And this is perfectlyjust. If the administrator acted in good faith it would be very hard to hold him responsible for the untoward and unexpected results of the late war. The parties injured are not remidiless ; they can follow the moneys thus paid out into the hands of those who have received it.
4. We think there ought to be a new trial in this case, in which Bagley shall be charged with the amount paid out to the children of Mrs. Davis, as a devastavit, but with the right on his part to the defenses allowed by the Acts we have referred to, keeping also in view that any other claims there may be against the estate of Jones, have their rights against the fund in hand, as well as Airs. Jones.
Judgment reversed.