| Ga. | Jan 28, 1901
Dr. Trotter brought suit in a justice’s court against George W. Gwinn as administrator of the estate of Peter Malcolm, to recover the amount due him for medical attention rendered the intestate during his last illness. The defendant filed a plea which might be construed as a plea of plene administravit. The accQunt sued on was duly proved, and as a matter of defense it was shown that the intestate left a widow and minor children, and that a year’s support for them had been duly set apart to the amount of $850; of this $300 was in money and the remainder in land. It was also shown that the estate was insolvent; that property only to the value of $114 had come into the hands of the administrator, and that there were no other assets of the estate. The administrator also introduced in evidence vouchers for certain payments which he had made, and which had been duly returned to the ordinary. These amounted to the sum of $39.66, and were for State, county, and city taxes, and other items representing debts which were inferior in dignity to that of the plaintiff. It was also proved that the sum of $300 was yet due the widow and minor children on account of the year’s support. A judgment was rendered for the plaintiff for the sum of $39.66, being exactly the amount which the administrator had paid for debts inferior to that held by plaintiff against the estate. The defendant applied for a writ of certiorari; it -
The evidence is conclusive that the administrator paid certain-debts of the estate which were inferior-in dignity to that held by the plaintiff. The priority of payments as established by the Civil Code, § 3424, classes the year’s support for the family as.a claim against the estate of the highest dignity; the next claim in order is the funeral expenses, including the physician’s bill for the last sickness of the intestate; next is the expenses of administration, and the fourth is the unpaid taxes due the State. While it can not be questioned that the making of the payments to which we have referred was a devastavit, it does not follow that for such the administrator is liable to the plaintiff. Certainly the plaintiff was entitled to payment in preference to the claim for taxes, etc., and if nothing else appeared, the judgment rendered could be easily sustained. But it does appear that a sum, not only greater than the payments made but greater in amount than the entire assets which went into the hands of the administrator, is due to the widow as a part of her year’s support, and this is a claim not only of higher dignity than those paid by the administrator, hut is prior to that of the plaintiff. The rule of law, as we understand it, is that if an administrator pays an inferior debt, leaving one of higher dignity unpaid, and the assets are not sufficient to pay both or all' the debts, the administrator is personally liable for the amount wrongfully paid to the person who is injured thereby, and he must answer out of his own means for such a devastavit. Schouler, Ex. & Ad. § 383. Mr. Croswell, in his work on Executors and Administrators, § 667, says: “Payment of debts out of their order is a waste which the executor or administrator will be obliged to make up.” In Davis v. Bagley, 40 Ga. 181, this court ruled that such a payment was a devastavit, and, referring to the amount paid, declared, “ It is still in hand; the receipt is null.” In other words, the payment is to be accounted a nullity, and the assets of the estate in the hands of the administrator are not diminished by such payment, but for the amount so paid the administrator is liable personally. The manner of enforcement in such a case is by a judgment de bonis propriis in favor of the creditor who was injured by the payment. The sum illegally paid is simply to be considered-in the hands of the administrator to be distributed according to law,'
Judgment reversed.