86 Ga. 764 | Ga. | 1891
There are two questions made for our decision by the record in this case: (1) The first is whether the power' of sale given by Mrs. Wilkins to Mrs. Mustian survived after the death of Mrs. Wilkins the maker. (2) If the power did not survive, or was revoked by her death, whether the plaintiffs in the court below are estopped from setting up their claim to the land.
So far we have treated the executors who are the plaintiffs in this case, as if they were the real owners of the land in dispute, and concluded that they are not estopped. If any doubt attended this eonclusion, it would be overcome by considering the wide difference between estopping one who acts as an individual and one who acts in a representative capacity.. "Where an administrator makes an unauthorized sale of property belonging to the estate, he will not be estopped from recovering it back. Worthy v. Johnson, 10 Ga. S58 ; Gouldsmith v. Coleman, 57 Ga. 425. The estoppel works against the individual, so that he cannot shun personal liability by pleading his want of authority, but in many cases does not work against the estate.. Thus in Sellars v. Cheney, 70 Ga. 790, it is held: “That an administratrix stood by and saw property of the intestate sold under a void fi. fa. will not estop the administrator de bonis non who succeeded her from attacking the validity of the sale.” In Magee v. Gregg, 11 Sm. & M. 70, it was held that an administrator who was present at the sale of a slave belonging to his intestate, made by another person, and offered no objection to