
    Phillips, Exr., v. McConica, Guardian.
    
      Action to recover money — Paid by executor under mistake of law— Adopted child can not save a legacy from lapsing — Sections 5971 and 3140 Revised Statutes.
    
    1. An action to recover back money paid out by an executor upon distribution, by mistake, is properly brought in the name of such executor in his official capacity.
    2. Money voluntarily paid by an executor, upon distribution to one not entitled to receive the same, under a mistake of bis rights and duties as executor, there being no mistake of fact, can not be recovered back.
    3. When a legatee dies before the testator, the legacy lapses unless such legatee was a child or other relative of the testator, and left issue surviving the testator as provided in section 5971, Revised Statutes. An adopted child is not such issue.
    4. An adopted child is enabled by section 3140, Revised Statutes, to inherit from its adopter, but not through him, from his ancestors.
    (Decided October 11, 1898.)
    
      Error to the Circuit Court of Morrow county.
    On the eighth dajr of August, 1895, William L. Phillips, as executor of the last will and testament of Thomas H. Madden, deceased, filed his petition in the court of common pleas of Morrow county against Myrtle S. McConica, as guardian of Mary R. McConica, a minor, which said petition is in the words and figures following:
    “Plaintiff says that Thomas H. Madden died on or about the twenty-first day of August, 1891, leaving a last will and testament, which said will was duly filed and admitted to probate by the probate court of Morrow county, Ohio, on the ninth day of September, 1891.
    That said will named plaintiff as the executor thereof, and that he was appointed by the said court on the ninth’ day of September, 1891, as executor of the last will and testament of the said Thomas H. Madden, deceased, and is now the duly qualified and acting executor of the said will of the said Thomas H. Madden, deceased, and brings this suit as such executor.
    That said will contained the following clause: ‘I hereby give and bequeath all the residue of my property of every description, moneys and credits, due me at my decease, or belonging to my estate, to be equally divided; one-half to the heirs of my daughter Refella, deceased wife of John McConica, namely: Wilbert, Thomas and Charles Mc-Conica, and Minnie McConica Fulton. ’
    That said Wilbert McConica died on or about the tenth day of October, 1888, leaving no heirs of his body.
    That the said Wilbert McConica, during his lifetime, and on or about the second day of May, 1888, in the probate court of Hancock county, Ohio, and under the laws of Ohio, legally adopted the said Mary McConica, an infant.
    That the said Myrtle 8. McConica was wife of the said Wilbert McConica at the time of his death, and was on or about the seventeenth day of December, 1891, by the probate court of Morrow county, Ohio, duly appointed guardian of the said infant, Mary McConica.
    That on the twenty-fourth day of December, 1891, under a mistake, towit: believing the said infant, Mary McConica, adopted as aforesaid, inherited the legacy of Wilbert McConica mentioned in that clause of the will set forth, plaintiff, as executor, as aforesaid, paid to said Myrtle S. McConica, as guardian of the said Mary McConica, the sum of $220.16. That he paid said money under a mistake of his rights and duties as executor, as aforesaid, and which he was under no legal or moral obligation to pay.
    Plaintiff further says that said infant, Mary McConica, had no right or color of title to said legacy, and the said Myrtle S. McConica, as guardian, as aforesaid, has no right in good conscience to retain the same.
    That plaintiff, on the twentieth day of April, 1893, and as soon as he discovered said mistake, demanded of the defendant a repayment of said sum to him, which demand defendant refused and still refuses and wrongfully and illegally withholds the same from this plaintiff.
    Wherefore plaintiff prays judgment against said Myrtle S. McConica, as guardian, as aforesaid, for the said sum of $220.16, the amount so paid, as aforesaid, with interest from the twentieth day of April, 1893, and 'for all proper relief.”
    
      To this petition the defendant below filed a demurrer on the ground, first, that the plaintiff had no legal capacity, as executor, to maintain the action ; and second, that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. The court overruled the demurrer, and the defendant below, not desiring to further plead, a judgment was rendered against the defendant below for the sum claimed in the petition; to all of which the defendant below excepted; and filed her petition in error in the circuit court, seeking to reverse the judgment ; and the circuit court, on hearing, reversed the judgment, on the ground that the court of common pleas erred in overruling the demurrer; and remanded the cause to the court of common pleas for further proceedings according- to law. Thereupon Mr. Phillips, the executor, filed his petition in this court, seeking- to reverse the judgment of the circuit court, and to have the judgment of the court of common pleas affirmed.
    
      McConica & Banker and 8. C. Kingman, for plaintiff in error.
    The testator wills the property in question to the “heirs of his daughter,” naming them, of whom “Wilbert,” the adopting father is one. As Wilbert died before the testator, and without issue, according to the manifest intention of the testator, the property would go to the other heirs of Refella McConica, named in the will. Section 5971 provides for the same manner of distribution. The word “issue” used in the statute, means a lineal descendent, or heir of the body. See definition of “issue,” Bouvier’s Law Dictionary and Anderson’s Dictionary of Law.
    
      Section 3140 makes the adopted child the heir of Wilbert McConica, in whom, owing to his death, the legacy never vested. The statute does not make the adopted child of Wilbert the heir of Wilbert’s mother, Refella McConica. The adopted child does not inherit from the ancestors of the adopting parent. Quigley v. Mitchell, 41 Ohio St., 375; White et al. v. Agnew, W. L. B., July 19, 1897, p. 47.
    The statute does not provide that the child shall inherit from any other person than the adopting parent. Upson v. Noble, 35 Ohio St., 655.
    This money was paid under the mistaken belief that an adopted child inherits the legacy to the adopting parent, and the fact that it does not so inherit makes the payment come within the rule laid down by Lord Mansfield in the case of Bize v. Dickason, (1 Term Report, 286), viz.: “Where money is paid under a mistake which there is no ground to claim, in conscience, it may be recovered back.” We find the doctrine here laid down adhered to and emphasized in the following leading cases: Lawrence v. Beaubein, 2 Bailey S. C., 623; Culbreath v. Culbreath, 7 Ga., 64; Northup v. Graves, 19 Conn., 548; Mansfield v. Lynch, 59 Conn., 320; Rogers v. Weaver, 5 Ohio, 536; Kerr on Frauds and Mistakes, 398.
    The money so paid by the executor to the guardian was of-a trust fund. If the person so receiving had no claim to it, it was in the nature of a gift; an essential condition of a gift is that the giver must have ownership to convey right or title.
    
      L. K. Powell and J. A. Garver, for defendant in error.
    If the executor distributes the estate he represents to parties not entitled to receive the same, he does not prejudice the estate nor the rightful distributees, but makes himself liable personally and on his bond, as such executor, to them for their rightful share of such estate on distribution. Abbott v. Cole, 5 Ohio, 87.
    He is personally responsible to the distributees and has .the corresponding right to recover personalky any amount wrongfully distributed. Rogers v. Weaver, 5 Ohio, 536; Gillmore v. Meeker, 1 W. L. M., 276; s. c. 2 Dec. R., 63.
    Section 3140 fixes the status of an adopted child to be “ to all intents and purposes the child * * * of the person so adopting him or her,” and if Mary R. McConica was “to all intents and purposes” the child of Wilbert McConica, was she not his “issue” within the meaning of section 5971?
    This does not conflict with the 41 Ohio St., 375, for Mary R. does not claim title to this fund by right of blood from Thomas H. Madden, but by virtue of the provisions of said section 5971. Gibson v. McNeely, 11 Ohio St., 131.
    Can money paid as recited in the petition be recovered back?
    It does not recite any mistake of faots. The allegation is that under a mistake of his rights he paid the money that he seeks to recover in this action. It shows a voluntary payment of money with knowledge of all the facts, hence it cannot be .recovered back. Mays v. Cincinnati, 1 Ohio St., 268; City of Marietta v. Slocomb, 6 Ohio St., 471; Railway Co. v. Iron Co., 46 Ohio St., 44; Burr v. Bates, 3 C. C., 1-7; s. c. 2 Ohio Circ. Dec., 1.
    An executor or administrator is in a better position to know his legal rights than one not acting in a trust capacity, because he can always invoke the judgment and direction of a court before acting. Revised Statutes, 6202 and authorities there cited.
    The payment alleged in the petition could not have been enforced by the defendant without giving the plaintiff his day in court, hence it was not compulsory, but voluntary. Revised Statutes, 6195; 6 Ohio St., 471.
    The petition does not even allege an order of distribution in the probate court for the payment of the money sued for, the probate court having exclusive jurisdiction to make such order. Revised Statutes, 524.
    Money voluntarily paid under mistake of law, in the absence of fraud or mistake of fact, cannot be recovered back. Kinkead’s Pleadings, vol. 2, p. 788, and authorities there cited; Kerr on Fraud and Mistake, 407, note 401; Bispham’s Equity, 187.
   Burket, J.

Ifc is urged by defendant below, . defendant in error here, that the plaintiff below had no legal capacity to maintain the action, because the executor is personally liable to the legal distributees for the money which came into his hands as such executor, and for the further reason that he can maintain an action in his own personal right for money of the estate wrongfully distributed, as held in Rogers v. Weaver, 5 Ohio Rep., 536. These considerations are not sufficient to cut off his right to maintain the action as executor. The money paid to the guardian was the money of the estate, and an executor is always a proper party to maintain an action to recover money belonging to the estate. Other existing remedies to recover money wrongfully paid out, do not exclude the remedy by action in the name of the executor.

It may be that the executor and his sureties, have become insolvent, and in such cases the only remedy that is effective and available to the proper distributees is by an action in the name of the executor. The action was, therefore, properly broug’ht in his name as executor.

The demurrer further raises the question as to whether the petition states facts sufficient to constitute a cause of action in favor of the executor against the guardian.

Wilbert McConica, the legatee, having adopted Mary McConica, an infant, by legal proceeding’s in the probate court, died without issue of his body, before the death of Thomas H. Madden, the testator. The legacy to Wilbert, therefore, lapsed unless Mary is to be regarded in law as the issue of Wilbert. Wilbert was the grandson of the testator, and section 5971, Revised Statutes, provides that when a devise of real or personal estate is made to any child or other relative of the testator, and such child or other relative shall die, leaving issue surviving the testator, such issue shall take the estate. The word “issue” in this section means child of the body, or heir of the body, of the deceased relative of the testator, and does not include a child adopted by such decedent. The issue in such case must be of the blood of the testator and of the deceased child or other relative by birth. Adoption does not make the adopted child of the blood of its adopter, nor of the blood of his ancestors.

True, section 3140, Revised Statutes, provides that such adopted child ‘1 shall be to all intents and purposes the child and legal heir of the person so adopting him, or her, entitled to all the rights and privileges, and subject to all the obligations of a child of such person, begotten in lawful wedlock. ” But this is far from providing that such adopted child shall be the issue of the adopter, and of his blood and of the blood of his ancestors.

It was well said in Upson v. Noble, 35 Ohio St., 658, that in passing the adopting statute “the legislature was dealing’ with personal rights and duties growing out of the relation of parent and child, by transferring them from the natural to the adopted relation.”

The statute enables the adopted child to inherit from its adopter, but not through him. The statute does not make the adopted child the heir of the ancestors of its adopter, and the right of the adopted child to inherit cannot be extended beyond where the statute has fixed it. The statute in this regard must be strictly construed, as held in 35 Ohio St., 658.

Adoption does not change the law of descent and distribution as to the property of the ancestors of-the adopter. Quigley v. Mitchell, 41 Ohio St., 375. The ancestors of the adopter are presumed to know their relatives by blood, and to have them in mind in the distribution of their estates, either by will or descent, but they cannot be expected to keep informed as to adoption proceedings in the probate courts of the counties of this state; and to allow an adopted child to inherit from the ancestors of the .adopter would often put property into the hands of unheard of adopted children, contrary to the wishes and expectations of such ancestors.

As Mary McConica, the adopted child, was not the issue of Wilbert, the legacy to him lapsed and the guardian of Mary was not entitled to receive the money that was paid to her as such guardian, by the executor on distribution of the estate, and the money should be returned to him by the guardian, unless there is some rule of law to prevent it.

The petition sets out that he believed that Mary inherited the legacy of Wilbert, and that he paid the money to the guardian under a mistake of his rights and duties as executor, and which he was under no legal or moral obligation to pay.

This states no mistake of fact, but of law. So far as the petition discloses, he knew all the facts, but was mistaken as to his rights and duties, that is, as to the law of the case. In Thompson v. Thompson, 18 Ohio St., 73, it was held by this court that “Mistake as to the law of descents, where the intention in making a deed was to vest the estate conveyed in the grantee, affords no ground for relief in equity.”

In Cincinnati v. Gas Light and Coke Co., 53 Ohio St., 278, this court held that “A payment made by reason of a wrong construction of the terms of a contract, is not made under a mistake of fact,' but under a mistake of law, and if voluntary cannot be recovered back.” The payment, as disclosed in the petition, was voluntary and not under duress, and not under mistake of fact, and in such cases the holdings of this court have been that no recovery can be had. Mays v. Cincinnati, 1 Ohio St., 268; City of Marietta v. Slocomb, 6 Ohio St., 471; Railway Co. v. Iron Co., 46 Ohio St., 44 ; Cincinnati v. Gas Light and Coke Co., 53 Ohio St., 278.

The executor had the right to obtain the judgment of the court as to the proper person to receive this money, as was done in Upson v. Noble, 35 Ohio St., 655; Revised Statutes, section 6202. But, knowing all the facts, he did not seek the direction of the court, but relying upon his own judgment, paid the money at his own peril. If he intended to litigate the matter he should have litigated before payment. It is now too late, unless he can show that he paid it under a mistake of fact, and this his present petition fails to show.

Judgment affirmed.  