Since the devise in question to the legatee was vested, it was not assets of the estate of Eliza Ann Forney. In Havill v. Newton, 202 Ill. App. 15; Sando v. Smith, 237 Ill. App. 570, the rule is announced that an administrator is personally liable in an action at law to recover assets which are not any part of the estate which he represents. In Gillette v. Plimpton, 253 Ill. 147-152, an administrator collected notes payable to his intestate and another party.

This creates no departure from the general rule that when a fiduciary or public officer acts ultra vires he can be held responsible and charged individually for his own unauthorized acts. Moreover by preserving the right of replevin against a personal representative individually there would be no question as to the competency of the claimant to testify under § 2-1715, Burns' 1946 Replacement.Sando v. Smith (1925), 237 Ill. App. 570. The modern tendency has been not to extend the classes of incompetent witnesses beyond the clear provisions of the statute.

ring part of that time deceased was either practically an invalid or unable to completely care for herself or to work, on the ground, such evidence was irrevalent and immaterial. Was such objection well taken? Plaintiff refers to no authority where this point was involved, but the question is not one of first impression. Where, as here, the question is as to whether the transaction was a loan or a gift, and neither party can testify thereto, the circumstances under which the transaction took place are certainly material in determining the intent of the donor and the purpose for which the property was turned over. Testimony touching the motives, inducements, or reasons for the donor turning the property to the donee, rather than the heirs is pertinent to the issues. Gilham v. French, 6 Colo. 196, 23 Pac. St. Rep. 196; Nichols Applied Evidence, Vol. 3, p. 2383; and is admissible for the purpose of sustaining the probability that the gift was in fact made. 38 C.J.S., Gifts, § 66, p. 867, Sando v. Smith, 237 Ill. App. 570; 28 C.J. 674, and note 96. The relation of the parties, the situation then existing, and the circumstances under which the gift was made, including the donor's previous life, habits and relations to others, as well as the condition of the donor at the time of the gift may be considered by the court; Russell v. Langford, 135 Cal. 356, 67 P. 331; so too evidence of friendly or affectionate relations between the parties, Young v. Anthony, 119 A.D. 612, 104 N.Y.S. 87; Smith v. Maine, 25 Barb., N.Y. 33; Rhodes v. Childs, 64 Pa. 18; that the parties had resided together, Currie v. Langston, 92 Mont. 570, 16 P.2d 708; and that the donee had rendered service to the donor, Young v. Anthony, supra; 38 C.J.S., Gifts, § 66, p. 868; 28 C.J. 674; is admissible on the question of motive and intent. To show the attitude of other courts toward the question, we quote from Currie v. Langston, supra [ 92 Mont. 570, 16 P.2d 711]:

The principle that money paid, with knowledge of all of the facts, under a misapprehension as to legal rights as between parties, may not be recovered back, is not applicable to payments made to an officer of the court, such as a trustee, administrator or receiver, when it is shown that no injury will be done in ordering it repaid. (Standard Oil Co. v. Hawkins, 74 Fed. 395; Sando v. Smith, 237 Ill. App. 570; Gillig v. Grant, 23 N.Y. App. Div. 596 ; Ex Parte James, Inc. v. Condon, 9 Chan. App. 609; Ex parte Simmons, 16 Q.B. Div. 308; Dixon v. Brown, 32 Chan. Div. 597.) The reason of the rule is that while in general the court will allow an individual to so retain money, a court of equity will require its officers to disregard technical rules and do what honest people ought to do. (Ex parte Simmons, 16 Q.B. Div. 308.) Analogous principles were announced in Frelinghuysen v. Nugent, 36 Fed. 229 and Peters v. Bain, 133 U.S. 670, 33 L. ed. 696.

"The general rule denying recovery of payments made under a mistake of law does not apply to payments to an officer of the court, and such payments may be recovered; but payments made by such officers under a mistake of law are not recoverable." This exception to the general rule has been recognized in Sando v. Smith, 237 Ill. App. 570; Carpenter v. Southworth (C.C.A.), 165 Fed. 428; Gillig v. Grant, 23 App. Div. 596, 49 N.Y.S. 78; People v. N.Y. Building Loan Banking Co., 45 Misc. 4, 90 N.Y.S. 809. As the mistake here involved is not a mistake of fact but of law, and, as the payments here involved were made to the sheriff, who is an officer of the court, we see no reason why they would not come under the exception to the general rule for which appellant contends.

In an action by a remainderman under a will against legatee's administrator in his individual capacity to recover money which he claims to hold as administrator, plaintiff's contention being that the fund in question vested in him upon the death of the legatee and is no part of her estate, plaintiff is competent to testify, either as to conversations or transactions with legatee, during her lifetime, that relates to the fund in question. Corney v. Corney, 257 Ill. App. 13; Sando v. Smith, 237 Ill. App. 570. In the case of Lewis v. Reed, 48 Cal.App. 742, 192 P. 335, the action was upon an insurance policy.

Our attention has not been directed to any case in Illinois where a court of review has passed upon a set of facts identical with those in the case at bar. The general rule seems to be that a payment made, with full knowledge of the facts and circumstances and in ignorance only of legal rights, cannot be recovered back, and proof that the one making the payment was, in fact, under no legal obligation to pay, and the other had no right to receive the payment, is of no consequence and will not entitle the one making the payment to sue for a recovery of the money, unless the payment was compulsory to the extent of depriving him of the exercise of his free will ( People v. Foster, 133 Ill. 496; Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535; Bryan v. Pilgrim Nat. Life Ins. Co., 294 Ill. App. 356; Sando v. Smith, 237 Ill. App. 570). It seems also to be the well-established law that an insurance company may waive any conditions or provisions inserted in the policy for its benefit, and such waiver may be expressed or implied, which may arise from acts, words, conduct, notice or knowledge on the part of the insurer ( Eagleton v. Prudential Ins. Co., 193 Ill. App. 306; Cox v. American Ins. Co., 184 Ill. App. 419; Beddow v. Hicks, 303 Ill. App. 247).

" In Sando v. Smith, 237 Ill. App. 570, in considering the rule that money paid with full knowledge of all the facts but under a misapprehension as to the legal rights, could not be recovered, it was held that such rule was not applicable where the payments were made to an officer of the court, such as a receiver, a trustee in bankruptcy or an administrator or an executor. Mr. Justice THOMSON, in delivering the opinion of the court said: "But, in our opinion, this rule that money paid with full knowledge of all the facts and under a misapprehension as to legal rights may not be recovered back is not applicable to the payments made to an officer of the court, such as a receiver or a trustee in bankruptcy or the administrator or executor of an estate," and in support of this the opinion cites Ex parte James, 9 Ch. App. 609; Ex parte Simmonds, 16 Q. B. Div. 308; Gillig v. Grant, 23 App. Div. 596, 49 N.Y. S. 78, and quoted from the Lord Justice, from the case first mentioned, in deciding that the creditor could recover the mon

" Also, in support of the position taken by the plaintiff is cited the cases of Herd v. Herd, 71 Iowa 497, and Rodman v. Rodman, 54 Ind. 444. In the case of Sando v. Smith, 237 Ill. App. 570, the action was brought by the plaintiff who claimed funds and property based on a gift inter vivos from her sister against defendant, individually, although he was the administrator of the sister's estate. On the first trial plaintiff was allowed to testify to facts alleged to have occurred prior to the death of the sister over defendant's objection and on the theory that the admission of that evidence was error, a new trial was awarded.

" In the case of Sando v. Smith, 237 Ill. App. 570, the court in its opinion, said: "The general rule is further to the effect that a payment made with a full knowledge of the facts and circumstances and in ignorance only of legal rights cannot be recovered back and proof that the one making the payment was in fact under no legal obligation to pay and that the other had no right to receive the payment is of no consequence and will not entitle the one making the payment to sue for a recovery of the money, unless the payment was compulsory to the extent of depriving him of the exercise of his free will. Illinois Glass Co. v. Chicago Tel. Co., 234 Ill. 535." In our opinion the mistake, if any, was a mistake of law.