ecutor was liable, if he paid the legatees, notwithstanding he had no notice of the bond (see Hawkins v. Day, Amb. 160); and that he was not disposed to agree to what was attributed to Lord Kenyon in the case cited. 21

MAKE ON

EXECUTOR

DE SON

TORT?

GENERAL DISCUSS SECTION 5.-EXECUTORS DE SON TORT

EMERY v. BERRY.

(Superior Court of Judicature of New Hampshire, 1854. 28 N. H. 473, 61 Am. Dec. 622.)

EASTMAN, J. In examining the questions presented by this case, we shall pursue the order taken in the argument, and consider, first,. the ruling of the court by which a verdict was taken for the defendant upon the issue to the jury.

It may be stated, in general terms, that at common law an executor de son tort is one, who, without any authority from the deceased or the court of probate, does such acts as belong to the office of an executor or administrator; and it is said that all acts of acquisition, transferring or possessing of the estate of the deceased, will make an executor de son tort, because these are the only indicia by which creditors know against whom to bring their actions. 2 Bac. Abr. 387, and authorities there cited.

Our statute provides that "if any person shall unlawfully intermeddle with, embezzle, alienate, waste or destroy any of the personal estate of a deceased person, he shall stand chargeable and be liable to the actions of the creditors and others aggrieved, as executor in his own wrong, to double the value of the estate so intermeddled with, embezzled, alienated, wasted or destroyed." Rev. St. c. 158, § 15.

21 That case was The Governor and Company of the Chelsea Waterworks v. Cowper, 1 Espin. N. P. C. 275 (1795).

In Daniel v. Baldwin, 148 Ala. 292, 40 South. 421 (1906), an administrator, without getting an order of court directing him to do so, distributed the estate. An infant had a claim of which the administrator knew nothing, and by statute had till 12 months after attaining majority to present it. The infant presented the claim within that time, and the adminisrator and his sureties were held liable.

In Hanna v. Palmer, 6 Colo. 156, 45 Am. Rep. 524 (1882), where the question was whether a widow, on renouncing the will, took under the Colorado statute one-half the estate of her husband free from his debts, the court said: "If she elects to take under the will, it will not be pretended that her legacy is exempt from the debts of the testator; and upon renouncing the will she takes her legal moiety, not as dower, nor in lieu of dower, but in lieu of the provisions of the will, and impliedly subject to the same liabilities respecting the debts of the deceased." 6 Colo. 161, 45 Am. Rep. 524.

So far as an administrator has paid a debt of the estate with assets which he is compelled to refund to the widow, he will be subrogated to the rights of the creditor. Flowers v. Reece (Ark.) 123 S. W. 773 (1909).

The statement of facts is omitted.

ON EXECUTOR DE SON TORT. (From 2 Woerner 635).

The theory of holding an intermeddler liable in the character which he has himself voluntarily assumed is..that it may be necessary to the protection of the interests of creditors, heirs, and legatees..(1)not only because strangers may naturally condlude that the person so acting has a will which he has not yet proved, (2) but (2)but .by holding him liale in the assumed character, the remedy of parties injured is, at least at c-1, much simplified, and circuity of action is avoided. (It is still the law in about 28 states).

Section #192. Coexistence of Exe. or Adm. de Jure and de son Tort. It is sometimes said that at common law the Intermeddling with the goods of an estate, if probate or letters have been granted does not consitute the intermeddler an exe. d. s. t. because creditors may bring their against agaist the rightful representative, and the intermeddler is liable as a trespasser.

But the liability as e. d. s. t. is not (always..L. F.) exlucded by the fact that there is a lawful rep. of the estate. Where a fraudulent grantee is in possession of property conveyed to hi in derogtaion of the rights of crs....the rightful executor or adm. cannot, in many if not in most ST tes, proceed against the g rantee; the fraudu-1 lent transaction being good as against the grantor and those claiming thru him. (Conflict on this llL F). In such States the remedy of the crs. is against such grantee as exe. de son tort,

altho there be a lawful exe. (L F....why as exe. de son tort...is there any reason why the ordinary remedy of the cr. should be changed by the death of the fraudulent grantor?...looks like simply applying the term where no need.)

And per Williams, altho there is a lawful rep. if another interferes expressly claiming to be executor, he may be held as e. d. s. t.

A great deal of conflict upon the extent and nature of the liability of the exe. Generally may recoup as vs. suit by crs.; generally cannot in suit by executor de jure, since here the interference was a wrong as against the exe. etc. Read further as to varying rules.

What precise acts shall be deemed an intermeddling, so as to charge a person as executor in his own wrong, has never, so far as we are advised, been directly passed upon by the courts of this state. The question has incidentally arisen in two or three cases, but no definite decision has been made. Pickering et al. v. Coleman, 12 N. H. 148; Leach v. Pillsbury, 15 N. H. 137. In the latter of these cases, it was said that "it seems that the single act of receiving and paying out a sum of money belonging to the estate of an intestate, will make a person an executor de son tort, so far that he may be charged as such."

If a stranger gets possession of the goods of the deceased before probate of the will, he may be charged as executor in his own wrong. Read's Case, 5 Coke, 33, b; Salk. 313, pl. 19; Dyer, 166, b; Roll. Abr. 918. And Mr. Justice Buller, in Edwards v. Harben, 2 Term, 597, says: "In short, every intermeddling after the death of the party makes the person so intermeddling an executor de son tort." And the same learned justice, in Padget v. Priest, 2 Term, 97, says: "It is clear, from all the cases, that the slightest circumstances of intermeddling will make an executor de son tort."

The case of Padget v. Priest, and the authority of Dyer, 166, b, are cited and approved by Williams, in his note 2 to Osborne v. Rogers, 1 Saund. 265.

A careful examination of the authorities will, we think, show that, as between a creditor of the deceased and a person who may intermeddle with his goods, very slight acts indeed will make him liable as executor as de son tort. Acts of necessity or humanity, such as locking up his goods, burying the corpse of the deceased, or feeding his cattle, and similar acts of charity, by which a person does not assume to have any control over the property more than others, will not constitute a person executor in his own wrong. 2 Bacon's Abr. 288; 2 Black. Com. 507; Dyer, 166.22 But where one possesses himself of the goods of the deceased, for the purpose of taking care of them, the object of the possession must be made to appear, before he can be discharged from the responsibility arising from his possession. Hubble v. Fogartie, 3 Rich. Law (S. C.) 413, 45 Am. Dec. 775.

The best rule that occurs to us, that can be laid down upon the subject, is this: That all acts which assume any particular control over the property, without legal right shown, will make a person executor in his own wrong, as against creditors.) Any act which evinces a legal

22 "It was formerly held, with great strictness, that no one could interfere in the least with the estate of a deceased person. This was carried to such an extent that a wife has been held liable as executrix de son tort for milking the cow of her deceased husband. Gerret v. Carpenter, 2 Dyer, 166, note. But it is now determined that there are many acts which do not make one liable, such as locking up the goods of the deceased for preservation, directing the funeral and paying the expenses thereof, feeding his cattle, etc.; for these are necessary acts of kindness and of charity." Devens, J., in Perkins v. Ladd, 114 Mass. 420, 422, 19 Am. Rep. 374 (1874).

control, by possession, direction or otherwise, will, unexplained, make him liable. And this position the authorities seem fully to sustain. 2 Bac. Abr. 387; 5 Coke, 33, b; Edwards v. Harben, 2 Term, 597; Padget v. Priest, 2 Term, 97; Campbell v. Tousey, 7 Cow. (N. Y.) 64; White v. Mann, 26 Me. 361; Wilson v. Hudson, 4 Har. (Del.) 168; Hubble v. Fogartie, 3 Rich. Law (S. C.) 413, 45 Am. Dec. 775; 1 Saund. 265, note.

Mountford v. Gibson, 4 East, 441, and the other cases cited by the defendant's counsel, will not, we think, when carefully examined, be found to conflict with these views.

The evidence, in this case, was competent to show the defendant executor in his own wrong, and liable under our statute. It tended to show that the defendant had in his possession $400, money which he had received from the estate of his son, Joseph Berry, who was an alleged debtor of the plaintiff, and who died in California. He received it through a draft on Boston, sent by a Mr. Matthews, from San Francisco. The object for which the money was sent is not stated. It was sent to the defendant, subject to no order of the deceased, or of any administrator or executor of his in California. Matthews would appear to have been acting as the friend of the deceased, and, without any administration upon the estate, to have taken upon himself to send the avails of the property of the deceased to his father, in this state.

The case finds Berry to be dead. It finds, in effect, that the $400 belongs to his estate, and that the same is money, in the hands of the defendant, in this state. It does not appear that any administrator, executor, creditor or heir in California has any right to the property, or to its control. Nor does it appear that it was sent to this state by authority of any will or the decree of any probate court. Neither is any thing disclosed in the case by which it appears that any one in this state or elsewhere has any right to any legal control over it. It is, then, simply personal property of the deceased, in this state, in the hands of the defendant, subject to the rights or interference of no one, except as the statute shall point out. Being within our jurisdiction, under such circumstances, it may properly be administered upon in this state, for the benefit of the heirs and creditors residing there. There has been no administration upon the estate of the deceased in this state, and the defendant is the only person shown to have intermeddled with the property here. He is the only one who has had it in his possession, and exercised control over it, and we infer from the facts stated, has declined to surrender the property or take out letters of administration upon the estate.

If the defendant desires to avoid the penalty prescribed by the statute, it seems that it may be done by his now taking out letters of administration. Shillaber v. Wyman, 15 Mass. 322.

We are the better satisfied with the conclusion to which we have arrived, as to the liability of this defendant, from comparing the sec