I dissent. The proposition presented for determination is whether, in the light of the peculiar factual situation here involved, the appellant should be relieved by this court from the operation of the statute fixing the time for the taking of an appeal. While it does not appear that the erroneous statement in the notice referable to the filing date of the order approving the executrix’ account was wilfully made for the purpose of misleading appellant, the natural and necessary consequence of the service of such notice upon her counsel was to induce reliance upon its positive statement of the condition of the record in the estate proceeding as affecting the time for the taking of an appeal. This erroneous representation as to the day of filing the order in question was couched in no uncertain terms and was made without qualification in circumstances implying knowledge of the true facts provocative of the definite assertion. Obviously, the inevitable gravity of the error in recital of the date of ruling, the predicate of future procedural steps, was not lessened because the inaccuracy was the result of an inadvertence. A misrepresentation inadvertently made may produce the same dire results as an erroneous statement made intentionally.
The fact that service of notice of entry of decision is not required to start the time running within which an appeal may be taken (Cook v. Cook, 208 Cal. 501 [282 P. 385]; Lawson v. Guild, 215 Cal. 378 [10 P.2d 459]; Kraft v. Briggs, *12515 Cal.App.2d 667 [59 P.2d 1044]; Nagelmann v. McIntyre, 27 Cal.App.2d 621 [81 P.2d 466] does not preclude the recipient from relying with confidence upon the accuracy of the information so furnished him. If not intended as a credible representation, the notice of ruling should not have been volunteered. It was given at peril of acceptance without further inquiry as to the veracity of its positive declaration of the date of decision. The law is settled that “Where statements are such as to justify a reliance upon them, the person making them cannot excuse himself by saying that the other party need not have relied upon them; he must show that his representations were not in fact relied upon. A reason given for this rule is that the making of a representation to influence the conduct of the person to whom it is made carries with it an assurance, necessarily implied, of belief of the party making it in the truth of the affirmation.” (12 Cal.Jur. § 27, p. 748.) In Pomeroy’s Equity Jurisprudence, 4th ed., vol. 2, § 895, pp. 1855-1856, it is said that “whenever a positive representation of fact is made, the party receiving it is, in general, entitled to rely and act upon it, and is not bound to verify it by an independent investigation. Where a representation is made of facts which are or may be assumed to be within the knowledge of the party making it, the knowledge of the receiving party concerning the real facts, which shall prevent his relying on and being misled by it, must be clearly and conclusively established by the evidence. The mere existence of opportunities for examination, or of sources of information, is not sufficient, even though by means of these opportunities and sources, in the absence of any representation at all, a constructive notice would be inferred; the doctrine of constructive notice does not apply where there has been such a representation of fact.” In view of this established principle, it becomes unimportant here that the court records in this estate proceeding were open for inspection by appellant or her counsel for ascertainment of the true facts essential to the timely perfection of the appeal. Under the prevailing circumstances such examination was not required.
Nor does the fact that appellant is also the executrix of the will of the decedent estop her from complaining of the misleading character of the notice of ruling and the erroneous impression thereby created. It is a rule of general application that an act done in a representative capacity will not estop *126one in his individual capacity, and vice versa. (31 C.J.S. § 134, p. 402; 11B Cal.Jur. § 825, pp. 228-229.) These identities are separate entities, totally distinct. (Anthony v. Chapman, 65 Cal. 73 [2 P. 889]; Estate of Bauer, 79 Cal. 304 [21 P. 759].) The peculiar equities of this ease add particular force to the application of the general rule here. Katharine G. Hanley was represented by different counsel in each of her capacities, and the attorney acting for her as executrix in giving the notice of ruling was in no way associated with the attorneys serving her as an individual. The independence of her respective counsel has been maintained throughout the estate proceeding, and there is no difficulty in separating her responsibility for legal actions as between her dual capacities. Counsel acting for her as an individual relied in good faith on the notice as served by opposing counsel, whose position in this proceeding, so far as the principle of distinction is concerned, was the same as though some other person than appellant occupied the status of executrix. Such situation furnishes no basis to conclude by way of estoppel the individual rights of Katharine G. Hanley in this matter.
To be considered now is the point whether the provision of the law fixing the time for taking an appeal must be enforced in all eases as it is written regardless of the circumstances of delay. Judge Elliott in his valuable work on Appellate Procedure, section 112, pages 92-93, discusses the proposition as follows: “The rule that the court cannot enlarge the time for taking an appeal must be regarded as established, but the court may, nevertheless, relieve a party in the proper case against .. . accident. In relieving a party against . . . accident the court does not extend the time for taking the appeal by breaking down the provisions of the statute limiting the time within which appeals must be taken.” The propriety of appellant’s claim to relief is in accord with this general doctrine. Whether a misrepresentation such as is here involved be the result of inadvertence or deliberate design is immaterial insofar as its ultimate effect upon the aggrieved party is concerned. In either event the same equitable elements are . present in establishing a case calling for the exercise of an appellate court’s inherent power to administer justice. The fact that the respondents moving to dismiss this appeal did not join with the respondent executrix in giving the erroneous notice of ruling does not alter the principle of decision herein, for considerations of justice and good conscience preclude their taking advantage of the error *127misleading appellant. To hold otherwise would permit a condition consequent of inadvertence to thwart this court’s equitable control of its process, resulting in a travesty on justice and bringing the administration of the law into just reproach.
For the foregiong reasons the motion to dismiss should, in my opinion, be denied, and the appeal should proceed for decision on its merits.
Shenk, J., concurred.