dissenting.
I was disposed to adopt the very elaborate and, in general, satisfactory- report of the Master in Chancery, of the Macon circuit, and which was approved by the Judge thereof; and to make our judgment, in these cases, conform to its conclusions, but my associates not assenting to; but rejecting, them entirely, imposes up>on me the necessity of putting my dissent in writing, to one, at least, of the points ruled by 'my associates, and which is contained in the following summary prepared by one of them, viz “ Debts, due by a deceased executor, administrator, guardian, or trustee, entitled to priority of payment in the administration of assets, as provided by the Code, sec. 2312, and 4th part of the paragraph 2494, are such only as may be due by such executor, etc., as may ■ *93be appointed by the latos of this State; trustees‘appointed in other States are not embraced. Debts, due by foreign executors, trustees, etc., are to be paid according to their character, as bonds, accounts, etc., the^same as if owing by others, without priority on account of such character.”
The record shows that Samuel P. Corbin, now deceased, late of Taylor county, Georgia, many years since, under the will of Saylor, of South Carolina, and by a decree of Chancery of that State, as trustee for his children, John J. Cor-bin and others, parties.to one of the foregoing suits, received a large property, mostly in money, and that, removing immediately thereafter to Georgia, he brought with him said property, and that it remained in the possession, control and management of said Samuel until his death, in 1863. The record further shews, that two of the cestui que trusts, his children, were born in Georgia, since the removal of said Samuel to this State, with the trust property, that they are citizens of this State, and further, that said Samuel died in Georgia, insolvent, and deeply involved in debt, without having delivered to said cestui que trusts their property, or paid them an equivalent therefor, or, in any manner having accounted to them.
The amount with which he died chargeable to the cestui que trusts is ascertained by the Master’s report, which I adopt for the purposes of this opinion.
The question,.upon the facts stated, then, is whether the cestui que trusts have a right, as against Henry Corbin, executor of said Samuel P. Corbin, to have the amount due to them, paid before other liens or claims, or debts due by Samuel P. Corbin?
I take it to be clear, that if-the property of the children of Samuel P. Corbin, in his hands, as their trustee under the will of Saylor, and which was delivered to him under the decree of Chancery, had been found, upon the death of said Samuel, in Georgia, in hind, and capable of identification as that trust property, the individual creditors of said Samuel, upon his contracts with them, could not, to any extent, or in *94any mode whatever, have subjected that trust property to the payment of their demands.
The plain and unanswerable reason for this position is, that it was not his property, but his children’s ; nor would a Court of Equity stop for a moment to ask where the trust originated, as its acknowledged jurisdiction covered all trusts, and brought all trustees living on the soil of Georgia within the scope of its remedial powers. If the trustee was alive, and a bill was filed against him, at the instance or in behalf of the cestui que trusts, to account for the trust property received by him, to discover how and when and into what it had been converted by him, or in what manner he had mixed it with, and used it as, his own, alleging the insolvency of the trustee, it is believed that his individual creditors, whether by judgment or otherwise, would be promptly enjoined, by a Court of Equity, from any attempt to cause the property of which he was in possession to be appropriated to their demands, until the trust property in his hands should have been separated from his own property, and paid over to cestui que trusts; or failing to accomplish that, from a conversion by him of the money, or other thing, so that it could not be clearly traced, such trustee would be decreed to pay an equivalent to the extent of the property converted or mixed up with his own, and by which the bulk of his apparent property had been increased., and this before such individual creditors could be paid, they being turned over for payment upon the residue in the trustee’s hands, that being in truth and right his property, and no more. This principle of the restoration of property to its owner, unaffected by the personal contracts or debts of the person having it in possession as a fiduciary, is of universal application, and is maintained and enforced by Courts of Equity where the trustee has obliterated all means of identification, or mixed it,'so that it is impracticable to separate it, specifically, from his own, in the form above indicated, that of withdrawing an equivalent in value from the bulk of the property in possession of the trustee, inaccurately called his property or estate. So that whether the trustee is living ,. or dead, a Court of Equity employs the same means to cause *95right to be done. Is it not palpable that, without the exercise of such power, the fraud or misconduct of a trustee would operate to his benefit, and most injuriously to cestui que trusts, by subjecting their property to pay his individual debts?
Our Legislature have not left the subject of trustees, and the liability of their estates, where they die chargeable, to rest upon the course of Courts of Equity, when applied to by individuals, but have declared a principle of justice in comprehensive, unequivocal language, that all may know their rights and liabilities, and especially that executors and administrators may know their duties in the distribution of assets which may come to their hands, without resorting to a Court of Equity for direction.
. Thus, by paragraph 2312 of the Code, it is enacted that the estate of a trustee dying, chargeable with trust funds in hand, shall be appropriated first to the payment of such indebtness, after the funeral expenses, in preference to all other liens os' claims whatever.
By paragraph 2494, under the head “of managing the estate and paying the debts of testators and intestates,” the following order of payment by executors and administrators is prescribed: 1st. Funeral expences. 2d. Necessary exigences of administration. 3d. Taxes. 4th. Any debt due by deceased as trustee, he having had actual possession, control and management of the trust property.
It cannot be questioned that the bulk of the property in the possession of Samuel P. Corbin, at his death, had been augmented by the addition to his own of the property of his children, in his hands, as their trustee.
■ Now I have shown that a Court of Equity, independent of our statutes, and by its mode of procedure, for the purpose of doing justice when applied to, reduces the bulk of property in the hands of the trustee, to its rightful and legitimate size, and then subjects that residue to the payment of the creditors of the trustee upon his personal contracts.
In Watson vs. Watson, 1 Ga. R., 271, which was a case against the estate of a guardian who had sold the land and negroes of his ward, and mixed up the proceeds with his *96own estate, I find Judge Warner saying: “The estate of Watson having been increased to the extent of the value of their (complainants’) property, sold by him as their guardian, it is nothing but sheer justice, that the claim of plaintiffs be paid first out of it before any other debt." Again, “this statute,” (of 1799,) “giving priority, is, in our judgment, founded on a dear equity."
I entirely concur in the soundness of the views thus expressed, and ask, is it not true here that the estate of Samuel P. Corbin was increased to the extent of the property of the cestui que trusts, and can it be anything but “sheer justice" that their claims shall be first paid out of the property in the hands of Henry L. Corbin, as the executor of Samuel P. Corbin, the deceased trustee ? I apprehend my learned colleague will find it no easy task to distinguish, substantially, between “the sheer justice” which afforded relief in the one case, and refused .it in the other. The only difference is in the name : one is a guardian, the other a trustee. But in equity, what does a name amount to? Both are trustees. We are in search of right, and bound to do right. Nothing is clearer under the heavens, than that the equities in both cases are identical and equal. Why then, should the judgments be dissimilar ?
But my associates, who cannot deny the fact's as I have stated them, nor tlie natural equity of the cestui que trusts, nor the course of courts of equity, in decreeing primary payment, say that our statutes make provision only for the liability of the estates of such trustees as may have been appointed by the laws- of Georgia.
I take this to be a great error. The Legislature having, by the Declaratory Act of 1790, made the estates of deceased executors,. administrators and guardians, dying chargeable with trust property, primarily liable, subsequently impressed with the necessity of extending similar relief against all trustees’ estates, as the equities were the same — enacted the paragraphs which have before been mentioned. My associates have, instead of giving effect to an enlarging Act, in its widest sense, and in accordance with its language, narrowed or re*97stricted it, so as to confine it to a very limited class, to-wit: Such trustees as may have been appointed under the laws of Georgia.
If this narrow interpretation be correct, upon what grounds are two of the cestui que trusts, born on-our soil, after the trust property was brought into Georgia, by Samuel P. Cor-bin, to'be excluded ? for as to them, the trust arose in Georgia.
I can but regret this interpretation as not only unsound, but as utterly unwarranted by any of the rules employed by the best text writers in the ascertainment of legislative will. It is, moreover, incapable of being supported by even a plausible reason.
I am aware of the position occupied by my associates, that foreign executors, administrators and guardians are not included in our statutes, for the reason that those appointed abroad are not recognized as such in our courts; but as Samuel P. Corbin’s estate is pursued, not for his default and indebtedness, as either an executor, administrator or guardian under a Carolina commission, I deem it unnecessary to discuss that question.
The question is restricted to the determination of whether the estate of a trustee, created by a deed or will, made out of Georgia, if he, subsequently bringing such property into Georgia, and here possessing, controlling and managing it to the time of his death, dying chargeable therefor, is not primarily liable to the cestui que trusts, before his other creditors. "Where else can they pursue their property, mingled with the estate of'the trustee, but in the Courts of Georgia? No matter of contract is involved, requiring construction according to the lex loci. Upon what principle, then, are the remedies afforded by statutes, and which the forum administers alike to all suitors, come from where they may, denied to them? It will not do to reply that our statutes so direct. I deny that they do, and demand the proof by those who assert that our Code sanctions the position “that debts due by trustees of foreign appointment, dying chargeable, are to be paid according to their character,' as bonds, accpunts, etc., the *98same as if owing by others, without priority on account of such character.”
This decision is not interpretation, but judicial legislation. It is an alteration of a clear, unambiguous statute, without a tittle of argument or reason to sustain it. Nor does the decision stop at the alteration of the paragraphs 2312 and 2494; but it goes further, and prescribes an order for the payment of the indebtedness of a trustee, appointed out of Georgia, dying here, chargeable to the trust which he possessed, managed and controlled, which the statute has not.
By what authority do they assign to debts, due by a trustee of foreign appointment, dying in Georgia, an order of payment, according to the form in which those liabilities are evidenced as bonds, notes, etc. ?
By this judicial legislation the result will be, that if the claims of cestui que trusts should not be evidenced by some judgment against the dead trustee, some mortgage, or bond, or note, they will go to the foot of the list, of the order of payment out of the assets prescribed for the direction of executors and administrators, and take their place among the account creditors of the deceased trustee. _
Again, it causes a discrimination to be made, as among cestui que trusts, and makes it depend upon the form in which the indebtedness of the trustee exists, so that the one -who has a judgment, is to be paid before the cestui que trust, who holds the bond of the trustee, and he who holds the bond, before the one who holds merely the note.
Now, no such discrimination can be made in cases of trustees appointed in Georgia and dying chargeable for property possessed, controlled and managed by them as trustees; for the law, by a sweeping, comprehensive declaration, enacts that for all the indebtedness for trust property, without regard to the form by which it is evidenced, his estate shall be primarily liable.
Why, in principle or common sense, should there be a difference between the liability of the estate of a deceased foreign appointed trustee and a domestic appointed one ? Our Legislature cannot be charged with either the injustice *99or absurdity of sucli discriminations. The primary liability of estates of dead trustees is founded on the indisputable equity that the cestui que trust’s property should be separated, withdrawn or accounted for in value, to its extent, before the individual creditors are let in for payment ; but the construction here, as to the estates of trustees appointed out of Georgia, dying chargeable with the trust funds in hand of cestui que trust, is, that they come in only pari passu, and according to the forms in which the indebtedness to them exists, thus sanctioning the payment of the individual creditors, by contract with a trustee, out of the property of cestui que trusts, or that into • which it was converted by the misconduct or fraud of their' trustee.
The obvious intent of our statutes, was to recognize this paramount equity to primary payment,, without the slightest regard to the shape or form by which the debt was evidenced. The Legislature looked only to the important fact of the trustee dying chargeable.with trust funds in hand, and placed, by the words and spirit of their Act, all cestui que tnosts upon the same equality, without reference to any other consideration than that the property of which he, as trustee, died pos- ■ sessed was theirs, or rather that their property should be so separated, first from his property, and when this shall have been done, then that his idividual creditors, on his personal contracts, should, according to the grade of their claims, be paid out of his property left after the separation^ from the trust property or funds.
The majority of this Court have associated with deceased executors, administrators and guardians, appointed out of Georgia and dying chargeable with the funds of the estate in their hand, trustees appointed abroad, and dying here, chargeable with trust funds.
This has been done, not by the Legislature, but by the court. The association is a forced one, and as the majority have, virtually interpolated the Act of 1799, by restricting the primary liability prescribed by it to the estates of executors, administrators and guardians as were appointed wider the laws of Georgia: so too, with less reason, and of their *100own will, have they likewise virtually interpolated, in paragraph 2312 of the Code, after the words “the estate of a trustee,” the words “appointed or created in Georgia only,” and in paragraph 2494, after the words “or any debt due by the deceased as trustee,” the words “created or appointed in Georgia only.”
I do my associates no injustice when I assert that their decision carries on its front the evidence of unauthorized legislation by them, and as effectually introduces into those paragraphs, and incorporates their opinions therein as substantially as if it had been by the law itself enacted, the restrictions which they have made.
Nor can my associates derive, in support of their decision, an argument from the maxim noscitur a sociis, as the Acts in reference to executors, administrators and guardians, are entirely separate from those touching trustees-.
The Act of 1799, providing for the primary liability of the estates of executors, administrators and guardians, embraced only the specific class comprehending them. The subsequent legislation extended to the genus trustees of every other kind, the same provision made as to the specific class.
I conclude by saying that to me it is a source of amazement, that my associates should have overlooked the very plain, palpable and unanswerable reason, which must have influenced the Legislature to declare that “the estate of a trustee, dying chargeable with trust funds in hand, shall be appropriated, first to the payment of such indebtedness after funeral expenses, in preference to all other liens or claims, whatever.” It felt that it was but “sheer justice,” as the estate of the deceased trustee had been increased to the extent of the value of the cestui que trusts property used and converted by him as their trustee, that their claims should be paid out of his estate, before any other debt. It felt, that to give to all cestui que trusts a priority of payment, was but a recognition of “a clear equity.”
This must have been the reason which led to this enactment. Gould any one be more ample and satisfactory, commending, from its natural justice, itself to - the approval of *101every honest heart ? and if it be the true reason, it is, per se, a condemnation of the miserable and odious discrimination made between trustees of foreign and domestic origin, by the judicial, legislation in these cases, and against which I enter my protest.