long to the office of an executor or administrator; and it is said that all acts of acquiring, transferring or possess. ing the personal estate of a decedent will constitute one an executor de son tort, because these are the only indicia by which creditors know against whom to bring their actions.1 An executor de son tort has also been defined to be a person who takes upon himself to act as executor or administrator without sufficient authority. Inasmuch as an executor is also a trustee, a trustee de son tort is one who of his own authority enters into the possession or assumes the management of property which belongs beneficially to others.2 In general it may be said that an executor de son tort is an executor only for the purpose of being sued and made liable for the assets of the estate with which he has intermeddled. In some jurisdictions, by virtue of the statutes, there is no such thing as an executor de son tort.1

1 Bacon's Abr., tit. Exrs. & Admrs., B, 3, 1; Attorney General v. New York Breweries Co., (1898) 1 Q. B. 205; Allen v. Hurst, 120 Ga. 763, 48 S. E. 341; Walker v. Portland Savings Bank, 113 Me. 353, Ann. Cas. 1917E, 1, L. R. A. 1915E, 840, 93 Atl. 1025; Emery v. Berry, 28 N. H. 473, 61 Am. Dec. 622; In re Mitchell, 74 Vt. 186, 52 Atl. 523.

2 Walker v. Portland Savings Bank, 113 Me. 353, 93 Atl. 1025; Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197; Mills v. Mills, 115 N. Y. 80, 21 N. E. 714; Ex parte Davega (Davega v. Henry), 31 S. C. 413, 10 S. E. 72; Morris v. Joseph, 1 W. Va. 256, 91 Am. Dec. 386.

8 Pryor v. Downey, 50 Cal. 388, 19 Am. Rep. 656; Walker v. Portland Savings Bank, 113 Me. 353, 93 Atl. 1025.

4 Winfrey v. Clarke, 107 Ala. 355, 18 So. 141; Bowden v. Pierce, 73 Cal. 459, 14 Pac. 302, 15 Pac. 64; Fox v. Van Norman, 11 Kan. 214; Gilkey v. Hamilton, 22 Mich. 283; Noon v. Finnegan, 29 Minn. 418, 13 N. . W. 197; Rutherford V. Thompson, 14 Ore. 236, 12 Pac. 382; State v. Henkle, 45 Ore. 430, 78 Pac. 325; Merrill v. Comstock, 154 Wis. 434, 143 N. W. 313.

See § 1275 as to defenses of intermeddler, although office of executor de son tort does not exist under the statute.

§ 1255. What Acts Are Sufficient to Constitute One an Executor De Son Tort.

It has been decided that the single act of receiving and paying out money belonging to the estate of a decedent will make one an executor de son tort to the extent that he may be charged as such. Any acts such as collecting money due the estate, paying debts with the funds of the estate or making other disposition of any part of the property belonging to the estate, will constitute a person an executor of his own wrong. Such an executor may likewise be constituted by occupying the house and carrying on the trade of the decedent.' If one takes possession of the goods of a decedent merely in order to conserve them, but negligently loses them or allows them to become destroyed, he is liable as an executor de son

"At all events, no man can be executor de son tort in regard to land."-Pryor v. Downey, 50 Cal. 388, 19 Am. Rep. 656.

Under the probate system of Missouri there can be no executor de son tort in so far as to authorize a single creditor of the decedent to maintain an action of trover against such executor.-Rozelle v. Harmon, 103 Mo. 339, 12 L. R. A. 187, 15 S. W. 432.

Sometimes the statute enacts that "no person shall be liable to an action as executor of his own wrong, for having received, taken, or interfered with the property or effects of a deceased person; but shall be responsible as a wrongdoer in the proper action, to the

6

re

executors, or general or special administrators of such deceased person, for the value of any property or effects so taken or ceived, and for all damages caused by his acts to the estate of the deceased."-Babcock v. Booth, 2 Hill (N. Y.) 181, 38 Am. Dec. 578; Hunt v. Butterworth, 21 Tex. 133, 73 Am. Dec. 223.

"One who has taken charge of the property of a decedent can not be sued as an executor de son tort under our law."-Vela v. Guerra, 75 Tex. 595, 12 S. W. 1127.

5 Leach v. Pillsbury, 15 N. H. 137.

6 Givens v. Higgins, 4 McCord (S. C.) 286, 17 Am. Dec. 742.

7 Hooper v. Summersett, 1 Wightw. 16.

tort. The rule is the same where one receives money of an estate and pays it out on claims for the expenses of the funeral and last illness of the decedent, but not if he defrays the claims out of his own funds.9

Some of the older cases carry the doctrine further than would probably be sanctioned today. A person has been held so liable for taking a dog of the decedent, and a wife for milking a cow of her deceased husband.10 And it has been held that the slightest circumstances of intermeddling with the personal property of a decedent will constitute one an executor de son tort.11 The rule is laid down that all acts by which one assumes any particular control over the personal property of a decedent, without legal right shown, will constitute him an executor of his own wrong, as against creditors. Any act which evinces a legal control by possession, direction, or otherwise, will, unexplained, make him so liable.12 The intermeddling, however, must be such as to manifest a right

8 Hubble v. Fogartie, 3 Rich. L. (S. C.) 413, 45 Am. Dec. 775 (where one was in possession of a horse of the deceased and used it for more than a year and suffered him to estray with no attempt to reclaim it).

9 Swinb. Wills, pt. 4, § 23; Godolph, pt. 2, ch. 8, § 1; Bennett v. Ives, 30 Conn. 329; Rohn v. Rohn, 204 III. 184, 98 Am. St. Rep. 185, 68 N. E. 369.

A widow who appropriated and paid out money left by her intestate husband, even though part of the money was paid out for funeral expenses, has been held liable as an executrix de son tort.-Shaw v.

Hallihan, 46 Vt. 389, 14 Am. Rep. 628.

10 Gerret v. Carpenter, 2 Dyer 166, in note.

11 Padget v. Priest, 2 Term R. 97; Walker v. Portland Savings Bank, 113 Me. 353, 93 Atl. 1025.

"In short, every intermeddling after the death of the party makes the person so intermeddling an executor de son tort."-Edwards v. Harben, 2 Term R. 581, 597.

12 Wilson v. Hudson, 4 Harr. (Del.) 168; White v. Mann, 26 Me. 361; Emery v. Berry, 28 N. H. 473, 61 Am. Dec. 622; Hubble v. Fogartie, 3 Rich. L. (S. C.) 413, 45 Am. Dec. 775.

13

to exercise control or to make a disposition of the effects of the deceased. Acting wholly as a servant will not make a person so liable, 18 nor where one is merely a coadjutor or supervisor.14 To constitute intermeddling, the person sought to be charged as executor de son tort must take possession of or exercise some control over the assets of the decedent; without this the performance of acts which are in their nature such as an executor or administrator would do, will not charge one as an executor de son tort.15 Whether or not one has made himself liable as an executor de son tort is a mixed question of law and fact. The jury in the first place finds the facts and the court then determines, as a matter of law, whether the facts found. create an executorship de son tort.16 The evidence to

Any one, even a legatee, who without legal administration of the estate, takes possession of any property of the decedent is liable as an executor de son tort and may be sued.-Wilson v. Davis, 37 Ind. 141.

There must be a wrongful invasion of property rights. The fact that funds belong to an estate rather than to an individual, does not vest them with peculiar attributes, nor make one liable to the true owner thereof for intermeddling therewith when he would not be liable if the owner were an individual.-Holden v. Farmers' & Traders' Natl. Bank, 77 N. H. 535, Ann. Cas. 1917E, 23, L. R. A. 1915E, 309, 93 Atl. 1040.

13 Givens v. Higgins, 4 McCord (S. C.) 286, 17 Am. Dec. 742.

Where a widow employed an overseer to superintend the hus

band's plantation, a wagoner or boatman to carry the crop to market, a factor to sell it, and a clerk to collect and pay money under her direction, these, not knowing in what capacity they were acting, would be considered merely her agents, and not exercising such control over the funds as to make themselves liable.-Givens v. Higgins, 4 McCord (S. C.) 286, 17 Am. Dec. 742.

14 Stokes v. Porter, 2 Dyer 166b. 15 Walker v. Portland Savings Bank, 113 Me. 353, 93 Atl. 1025.

16 Padget v. Priest, 2 T. R. 97; Haacke v. Gordon, 6 U. C. Q. B. 424; Ward v. Bevill, 10 Ala. 197, 44 Am. Dec. 478; Hubble v. Fogartie, 3 Rich. L. (S. C.) 413, 45 Am. Dec. 775; Rohn v. Rohn, 204 Ill. 184, 98 Am. St. Rep. 185, 68 N. E. 369; Caruthers v. Moore, 1 Tenn. Cas. 60.

charge one as an executor de son tort need not be sufficient to warrant a conviction for a felony.17

§ 1256. Realty and Partnership Property Not Involved.

The intermeddling which causes one to be charged as an executor de son tort has reference to personal property only; any wrong perpetrated as to the realty would affect the heir or devisee, not the administration.18 However, personal interests in realty, such as a leasehold, may be taken into possession or rents collected under subleases so as to render one liable as executor of his own wrong.19

Inasmuch as one who intermeddles with the assets of a partnership after the death of one of the partners is liable to account to the surviving partner, he can not therefore be considered as an executor de son tort of the deceased member of the firm.20

§ 1257. As to Legal Executor and One De Son Tort Existing at Same Time.

Some confusion has arisen because of statements in decisions that there can not be an executor de son tort if there be a legally appointed and qualified executor or administrator. Such a statement is generally true, for

17 Israel v. King, 69 N. C. 373. 18 Ela v. Ela, 70 N. H. 163, 47 Atl, 414; Campbell v. Sheldon, 13 Pick (30 Mass.) 8, 22; Claussen v. Lafrenz, 4 Greene (Iowa) 224.

Persons who, under a void provision in a will, received and dealt with real estate and the revenues therefrom, are not "executors de son tort" because such assets go to the heirs, and a person becomes

an executor de son tort only by intermeddling with assets which affect the administration.-Minck v. Walker, 81 N. J. Eq. 112, 88 Atl. 378.

19 Mayor and Commonalty of Norwich v. Johnson, 3 Lev. 31, 35; s. c., 3 Mod. 90; Williams v. Heales, 43 L. J. C. P. 80, 30 L. T. N. S. 20, L. R. 9 C. P. 177.

20 Hunt v. Drane, 32 Miss. 243.