By the Court.
Benning, J.delivering the opinion.
In the language of Sir John Beaeh, “ Every one who ac- ■ quires personal assets by a breach of trust or devastavit in ■the executor, is responsible to those who are entitled, under •the will, if he is a party to the breach of trust.” (Ram on Assets, 490 ; and see Williams on Ex’rs, 609. Story’s Eq. §§422, ’3, ’4, 579, 580, ’1. Gilbert vs. Thomas et al. 3 Ga. R. 581.)
Much more is this true if the executor be insolvent. And :in this case, the executor is said, by the Counsel for the plaintiff, to be insolvent. And this Court ordered that the bill should be amended, by the addition of an allegation to ■that effect.
In this State, the proposition is not to be confined to personal assets, for in this State real property and personal property are “ considered as altogether of the same nature and upon the same footing” as to distribution. (Pr. Dig. 233.)
If the bill be true, and the demurrer admits it to be true, there was no foundation, whatever, for one of the claims •which Smith, the president of the bank, presented to the ■executors for payment; and this was known both to Smith *133and to Spurlock, one of tbe executors — tbe one who controlled tbe assets.
The application of assets by Spurlock, to the payment of such a claim, was clearly a breach of trust — a devastavit; and Smith, knowing the nature of the claim — knowing its falseness, by receiving such assets in payment of it, became a party to the breach of trust-.
Consequently, Smith became responsible for those assets, to the person entitled to the assets ; and they, it seems, were the plaintiffs as legatees; that is to say, the plaintiffs consequently became entitled to follow the assets into the hands of Smith.
And if the bill be true, Shorter, Pennington and Lumpkin took the part of the assets which they respectively got, either mediately or immediately from Smith, with the same knowledge which Smith had of the facts which constituted the devastavit. Neither of them, therefore, can be in any better condition than Smith would have been in, had he not parted with the assets.
The result is, that the complainants have the right to follow the assets which were applied to the payment of the false demand, into the hands of the defendants.
• It seems that the assets turned over to Smith, were turned over to him on the making of a settlement — a settlement not only of the false demand aforesaid, but also of several other demands, which were not false — these amounting, in the aggregate, to say $1,517 93 — that to $12,850.
This being so, if it cannot be ascertained which of the assets turned over were those which were applied to the payment of the false demand if any in particular were so applied, then, of necessity, the settlement will have to be set aside, and all the assets used in it considered as assets still belonging to the estate; and therefore, as assets subject to be applied in a due course of administration.
Perhaps even if that could be ascertained, yet, the settlement would nevertheless have to be aside: for when a part cf the consideration of a contract is void, the whole contract *134is said to be void, although the other part of the consideration may be good. (1 Smith’s Lead. Cases, 169.) And the greater part, by far, of the consideration moving to the executor for the making of this settlement, was void.
For these reasons, we think that there was equity in the bill.
The questions, whether the Western Bank of Rome is not, by its charter, forbidden to buy, as well as to buy and hold real property ? Whether it is not forbidden to do this by the Statutes of Mortmain ? Whether the deed was ever delivered, except as an escrow ? are each important questions; but as they were not much argued, and as it is not essential that they should be decided, they are not decided.