Opinion.
Campbell, C. J.,delivered the opinion of the court:
Passing by all other questions raised by the demurrer, we hold that upon the facts shown by the bill (which makes the record of the administration of the estate of Joel Barnett, deceased, a part of it), the complainants are not entitled to a decree in this case. The proceeds of the sale of the land of the decedent were not assets. The land was sold under the Act of 1830, and a bond was given for the proper application of its proceeds as required by that act. The money arising from this sale was not covered by the general bond of the executors, and it is to be excluded from the computation. The proceeds of Mildred Barnett’s sixty-one bales of cotton are to be excluded on a like ground. By the codicil, the amount of the note of Wiley V. Stewart, a son-in-law of the testator, was to be deducted from the distributive share of Mrs. Stewart, his wife, and a legatee, and this sum is to be excluded from the computation of the personal estate covered by the bond of the executors.
The effect of the codicil was to charge Mrs. Stewart with the amount of the note of her husband as so much advanced to her under the will, and as lessening by that much her share. The executors were not liable for the amount of this note.
Excluding the several sums mentioned, it is apparent that the entire personal estate was consumed'in equalizing the shares of the several legatees, and that there is nothing of which these complainants can justly complain.
Decree reversed and bill dismissed.
To save costs of a separate administration, and inasmuch as the rights of the parties were the same, the assets of the estate of Mildred Barnett, deceased, were treated as the assets of the estate of Joel Barnett. They were so treated by the executors, who, under the solemn sanction of their oaths, reported such assets as assets of their testator. They were so treated by the court in its various orders and decrees. No adverse claim has ever been set up thereto. It is now too late to reach those assets through an administration of the estate of Mildred Barnett, and will this court say to the executor, You took those assets as assets of your testator; you reported them under your oath as such;' you held them as such until all adverse claims thereto are barred by limitation; now we will allow you to say that your sworn report was untrue, that you acted wrongfully in taking and treating these assets as you did. and you may then relieve yourself of all liability to account for the money thus wrongfully taken by you ? The same reasoning applies precisely to the proceeds of the sale of the land. The executor treated such proceeds as assets of his testator until all remedy on the land bond is barred by the Statute of Limitations and now says, It was wrong in me thus to take, hold and treat such proceeds.- I will take advantage of my wrong and relieve myself of all liability to account for such proceeds. Will this court sustain him in thus taking advantage of his own wrong ? As heirs of the grandfather, then, complainants would have been entitled to their same proportion of the proceeds of the land sale as they now claim under the will, but this executor, knowing that their rights on the land bond are now barred, changes for the first time his attitude with reference to such proceeds, and relieves himself from all liability. Such a course is too shocking to equity and conscience to be permitted by this court when once its attention is directed to it. In Irby v. Mitchell, 42 Ala. 438, the question was raised whether an administrator who took possession of property as the property of the estate, and sells it, having no claim to it himself, and no other person making claim for it, can relieve himself from liability to the estate by setting up a claim adverse to the estate. It was held that he could not, and the decision was based upon the doctrine that a trustee who receives property as assets of the trust cannot resist liability on the ground of an ad verse title which has never been asserted against him. The court remarked that “ The administrator did not pretend to have any right to the cotton or that anybody else was claiming it. The case was an open and undisguised attempt by a trustee to avail himself of his trust to make a personal profit out of an implied defect in-the title to the property in his hands. It is to the credit of the law that it did not tolerate such a thing. Bigelow on Estoppel, 383.” This court has held that while it is true that an administrator has no control or authority over the freehold estate of his intestate, yet, “ After the administrator has received the rents and accounted for them to the Probate Court as assets of the estate, he will be precluded from alleging that he received the rents without authority, and must be chargeable with them as for assets rightfully received.” His own voluntary accounting must be conclusive against him as to his authority to do the act, and he cannot be permitted in a subsequent accounting to reopen his own accounts, and to deny his right to receive funds with which he had charged himself.. Crowder v. Shackleford, 35 Miss. 359. We will only add that the questions as to whether the proceeds of the sale of the land, and of the sixty-one bales of cotton, were to be considered as assets of Joel Barnett’s estate or not were certainly discussed by counsel in oral argument before this court on first hearing, though possibly not in the briefs filed.On Suggestions oe Error.
Opinion.
Cooper, J.,delivered the opinion of the court in reply to the suggestions of error submitted by the appellee:
In deciding that, under the facts shown by the record in this cause, the appellee cannot call upon the surviving executor to account as such for the proceeds arising from the sale of the lands of the testator, or for the cotton derived from the estate of Mildred Barnett, we do not depart in any degree from the rule announced in Crowder v. Shackleford, 31 Miss. 321. In that case, the administrator had with the assent of the heirs-at-law received the rents and profits of the real estate, charged himself with them in his accounts to the court, and paid debts to an amount exceeding the rents thus received. Years afterward, when exceptions were taken to his final account, he attempted to repudiate the appropriation which had been made, and sought to obtain a double credit, one by retaining on the credit side of his account the amounts *356•which he had paid on the debts of the estate, and the other by striking from the debit against him the rents which he had received and disbursed.
In the case now before us, it unmistakably appears that the cotton received from the estate of Mildred Barnett was divided among those who claimed to be entitled to it, the father of appellees claiming in right of his wife and his claim being recognized by the executors of Joel Barnett. As executors they had no concern with the property of Mildred, and though by intermeddling therewith they became liable personally to the distributees of that estate, this did not fix a responsibility on them as executors. If it appeared that, having received and charged themselves with this cotton, they had made no disposition of it and that no claim had been made for it by the distributees of Mildred, then the rule announced in Crowder v. Shackleford might be invoked.
But it would be a hard application of any rule to hold that where representatives of an estate had taken property of third persons and charged themselves -with it m their representative capacity, they could not return the property to the true owner and thus discharge themselves from responsibility to the distributees of the estate which they were administering. It is immaterial that in making return in this case the executors have delivered the property to persons not in fact entitled to receive it; this, though it would render them liable in a suit at law brought by the distributees of Mrs. Barnett, gives no cause of action by the distributees of Mr. Barnett, nor does the fact that the distributees of Mr. and Mrs. Barnett are the same persons change the character of the liability of the parties responsible for the wrong distribution.
The right of the heirs-at-law of Joel Barnett arising from the wrongful distribution of the proceeds of the land sold for partition is to go against the persons who acted as commissioners of the court in making the sale, and against the bond given by them for the proper application of the proceeds. It is true that these commissioners were also executors, but they sold under a decree rendered in a suit brought by one heir-at-law against the others for partition, to which the executors were not parties. It is manifest that the executors have charged themselves in their representative capacity with funds distributed by them as commissioners in the chancery suit, and it is now attempted to hold them because of the form rather than of the substance of the transaction.
*357A review of tbe whole record demonstrates that the account was made in the shape in which it now appears, by reason of the fact that the executors were also the commissioners by whom the sale had been made, and by whom the fund arising therefrom was to be distributed, and hence it was that they mingled their independent settlements and reported that they had done as executors what in truth they had done as commissioners. By the same account in which they charge themselves with the fund, they show its distribution.
We adhere to the decree before rendered.