delivered the opinion of the court. The zeal of the counsel who appears for the defendant has enabled us to turn our attention once more to this case: and the very able argument in which he has examined the opinions heretofore delivered, has put it in our power to test their correctness, and has furnished us with ample means to detect any error into which we may have fallen.
*53Fouque the vendor of the property which is now pursued in the hands of the present defendant, was nominated (jointly with one Vellio) tutor to the plaintiffs by their mother, surviving parent. After her death an inventory of her property was made, at which Fouque’s presence and assistance as tutor is stated. This instrument he signed, as he also did one two years after, in which he appears as tutor, and declares himself indebted to Vellio as executor in the sum of $5000 belonging to the minors.
On these facts, this court, after the first argument, said, “ we find Fouque’s express and tacit acceptance of the tutorship, for he assumes the quality or title of tutor, by subscribing an act in which it is given to him. His assistance as tutor to the inventory must be presumed to have had in view the giving faith and regularity to the inventory to which the law imperatively demands the presence of the tutor.”
It is now contended there is error in this opinion. Because the law only gives a mortgage on the property of the tutor, Civil Code, 72, 75. or on the property of him who without being tutor takes on himself the administration of *54the property of the minor. Civil Code, 456, art. 20. And it is said the person nominated by the father was not confirmed by the judge,—did not take an oath, did not furnish security, therefore he was not tutor, and the first clause of the law already cited does not apply to him. He did not administer the property, therefore he is not responsible under the second.
If the first position be found true, we shall have to lament the great defects of our law, on a subject in which above all others, it has displayed the utmost anxiety that its provisions should be complete and operative. For it is obvious that if the person who is nominated tutor, can accept the trust, and afterwards shelter himself against the responsibilities which flow from this acceptance, by pleading a non-compliance with formalities that it was his duty to fulfil, the whole policy of our jurisprudence in this particular is defeated, and we are led to the strange and pernicious result that men can find protection in their own wrong.
We still continue under the impression we were after the first argument of the cause,— that if the person nominated tutor in a will *55takes that quality in a public instrument connected with the discharge of his duties as tutor, that it is an acknowledgement of his acceptance of the office. This position does not indeed appear to be controverted, but it is strongly urged that acceptance does not make him tutor, and it is supposed to be shown conclusively that he is not, by putting the case of Fouque having brought a suit in which his quality of tutor was denied. In such a case it is said the production of the will and the inventory would not establish his capacity, and if they would not, we must say they do not prove him to be tutor in the instance now before us.
The fallacy of this argument we think consists in not distingushing between those objections which might be made by defendants to the demands of a person calling himself tutor, and those which the law accords to a person who is sued in a character which he has taken on himself. Now it appears to us clear, that if Fouque, instead of being plaintiff as in the case put, was defendant, that the production of the will appointing him tutor, and the public act accepting the trust, would be sufficient to authorise judgment against him in that capacity. The general and well established *56rule on this subject is, that a person who has acted in a particular capacity or who has exercised a public trust, cannot contradict the fact of his appointment, even when sued for the penalties inflicted on those who being legally appointed, neglect certain duties imposed on them. Peake’s Evidence, 21. By a law of the Partidas, tutors are concluded by the inventory they make of minor’s property, and are not permitted to show there is error in it. There is the same or more reason for holding they should not be allowed to say they were mistaken in the character they acted in, when they made it. Par. 3, tit. 18. l. 120.
The office of tutor is one not only of great importance to the private interests of those for whom it is created, but also to the public, who are deeply interested in protecting the rights of all, who are not of an age to protect themselves. The law has therefore made an acceptance of the office compulsory, unless the person nominated is one of those who are excused from serving. It was the duty of Fouque, when apprized of his nomination, either to have his objections presented to the judge, against being obliged to accept the charge, or in case no such objections existed, to have proceeded *57and obtained the judge’s confirmation before he accepted—Dig. 26, 7 & 1 & 5, no. 9. The law, which requires it and the oath and security, was not made for his benefit, but the minors; and he has no more right to claim its protection than he would, in case he contracted with the minor, be permitted to avoid the contract, because, the minor enjoyed that privilege where the formalities of the law had been neglected. He who receives the tutorship, says Febrero, without observing all the legal solemnities, incurs the same responsibility as the legal tutor, and his property is subject to the same liens; because, the intruder ought not to be in a better situation than he who follows and obeys the commands of the law.—Febrero, Juicio de Concurso, lib. 3, cap. 3, § 1, n. 53. We are of the same opinion, and conclude, that the mortgage given by law on the property of those who are tutors, attached on that of the vendor of this property in the hands of, the present defendant.
But admitting, that on this branch of the inquiry, there should exist some doubt, we believe there cannot be any on the second, and that Fouque by his act comes clearly within the provision of the Code which gives *58a mortgage on the property of those who intermeddle in the administration of a minor’s estate. In discussing this question, the counsel has earnestly caution the court, against at all taking into view the fact of Fouque being appointed tutor in the will. But why we should not take it into consideration, we have really been unable to perceive. Nor in doing so, do we apprehend any such result as that we are warned against—namely, of declaring that Fouque was tutor because he administered, and he administered because he was tutor. To come to such conclusions, on such reasoning, would not be doing justice to the defendant. But without using the appointment of Fouque, and his acceptance, to involve the appellant in a circle from which he could not escape, we think that in deciding on the evidence before us, whether there was an administration of the minor’s property by him or not, that the circumstance of his being appointed tutor in the will, and of his having accepted the office, ought to be considered, in order to enable us to form a correct opinion of the real nature of the act from which that administration is inferred. A man who received a minor’s property in the *59character of a depositary, could not be said to administer it. But, if it was doubtful whether it came into his hands as a depositary, or not, if it was asserted that he got it under a pretence that he had a legal right to control it, and that he retained it in that view, would not the relation in which he stood to the minor be a proper subject of inquiry in order to ascertain the true nature of the act? In a case such as that before us, if two tutors were appointed by the will, and one of them acccepted the trust, and as tutor received the property or monies of the minor, this would be prima facie an act of administration in him, though, in a mere stranger, it might amount to nothing more than a borrowing. Whenever the act is equivocal the quo animo with which it is done, must be resorted to, and our knowledge of it, is greatly assisted by referring to the character in which the party acted.
The term administer, as used in the law which gives this mortgage, has been defined by the counsel “ some act in relation to an estate such as none but the owner, or one authorised by him could legally do.” This definition is not complete, inasmuch as the *60law may frequently confer an authority after the death of the owner, the asssumption of which, on the part of another, would be clearly an act of administration. With the addition of words to express this idea we should consider it correct. It would then be “ some act in relation to an estate such as none but the owner, or one authorized by him, or by law, in case of his decease, could legally do.” Examining the act done by Fouque, we find him to come completely within this definition. He appeared at the making of the inventory, assisted at it, and took on himself the quality of tutor. Here, certainly, was an act in relation to this property which no person, but one authorised by law, had legally a right to do; for on it mainly depended the rights of the minors. Had he refrained from meddling with it, a tutor legally appointed would have watched over their interests, and taken measures for the preservation of their property.
Still less equivocal do we conceive the act of drawing from Vellio the money of the minors. If he had merely borrowed it, as any other stranger would, why did he sign an instrument, acknowledging the receipt of the money, in which it is stated he appeared as *61tutor to the minor children? His taking it in that capacity implied authority over it, and, in our opinion, was clearly an intermeddling in the administration of the property. Vellio, who was appointed co-tutor, and who was responsible for Fouque, taking security that the money should be re-paid, does not in our opinion, change the nature of the transaction. It is evident the money was given to Fouque as tutor. Had he been tutor, there is not a doubt this would have been an act of administration. If he was not, receiving in that capacity, was an intermeddling.
The other objections made to the recent judgment of the court, we deem unnecessary to notice any further than to say, that they have been all examined, and that after an attentive consideration we do not think they are well founded. We have in the particular notice taken of this application, deviated from the usual practice of the court, and have found a reason for doing so, in the sincerity of the conviction expressed by the appellants' counsel, that there was error in the judgment already rendered. After as much attention as we are able to bestow on any cause, we think the opinion of the court fully supported by East'n *62reason and authority. If the case was a doubtful one, we should feel an inclination to come to the conclusions which we have already expressed. The law in all its provisions, manifests an almost parental solicitude for the interest of minors, and it is our duty to see that the formalities which it has created for their protection, should not be used as a means, to sanction the waste and destruction of their property.
The re-hearing is therefore refused.