facts may be shown in mitigation of damages except, perhaps, where the legal executor is, because of a deficiency of assets, precluded from satisfying a debt due to himself.61

§ 1265. Executor De Son Tort Can Not Retain Assets to Satisfy Debt Due Himself.

This

An executor de son tort, in a suit against himself by a creditor of the decedent, can not plead that he has retained assets of the estate to satisfy a debt due himself. All other creditors have a right to be first paid. rule of common law is based upon sound public policy. To allow otherwise would tend to encourage creditors to strive to be first in taking possession of the goods of the deceased, and would allow a creditor to take advantage of his own wrongful act by paying himself first.68 An executor de son tort can not retain assets of the decedent in satisfaction of a debt due him, either as against

61 2 Bl. Com. *508; Wentw. Off. of Exec. (14th ed.), ch. 14, p. 335; Bacon's Abr., tit. Exrs. & Admrs., B, 3, 2; Mountford v. Gibson, 4 East 451, 453, by Lawrence, J.; Anon., 12 Mod. 441; Tobey v. Miller, 54 Me. 480; Saam v. Saam, 4 Watts (Pa.) 432.

See, post, 1271, as to forms of action against an executor de son tort.

See, post, §§ 1273-1275, as to defenses to such actions.

At common law a lawful executor or administrator could retain assets of the estate and satisfy debts due himself before paying

other creditors in the same degree. See 2 Bl. Com. *511.

Where an executor de son tort is sued by a distributee for his share of the property, any debts paid voluntarily can not be set off by him, but where the father of the widow of the intestate had sold some of the property at her request and turned the proceeds over to her, he could set off the year's support of the family.-Bryant v. Helton, 66 Ga. 477.

62 Glenn v. Smith, 2 G. & J. (Md.) 493, 20 Am. Dec. 452; Baumgartner v. Haas, 68 Md. 32, 11 Atl. 588; Brown v. Walter, 58 Ala. 310. 63 2 Bl. Com. * 511.

a creditor of inferior degree or as against the lawful executor or administrator.64

§ 1266. Duties and Liabilities of Executor De Son Tort.

67

One who acts as executor de son tort is bound to exercise such diligence in respect to the property he claims to be representing, as a prudent man ordinarily bestows on his own personal affairs.65 He must account for the full amount of the assets received, and may also be charged with interest at the highest legal rate. The liability of an executor de son tort is in its nature essentially distinct from that of an executor duly appointed. It is governed by different rules and subject to different principles. The one is founded on consent and contract while the other, whatever the form of action, is in substance founded on tort.68

At common law there is a difference between the liability of an executor de son tort to the rightful executor or administrator, and his liability to a creditor who sues him as executor. In the former case the lawful representative may seek to disaffirm all the acts of the executor de son tort and to recover the property, that it may be administered according to law. In the latter case the creditor seeks to recover his debt from the inter

64 Bacon's Abr., tit. Exrs. & Admrs., B, 3, 2; 2 Bl. Com. **507, 508; Coulter's Case, 5 Coke 30.

65 Rohn v. Rohn, 98 Ill. App. 509. 66 Roggenkamp v. Roggenkamp, 68 Fed. 605, 15 C. C. A. 600.

67 Walton v. Hall's Estate, 66 Vt. 455, 29 Atl. 803.

By becoming an executor de son

tort, one can not acquire any benefit for himself. - Roggenkamp v. Roggenkamp, 68 Fed. 605, 15 C. C. A. 600; De La Guerra v. Packard, 17 Cal. 182.

68 Brown v. Leavitt, 26 N. H. 493.

See, post, § 1271, as to forms of actions against an executor de son tort.

meddler as executor generally, alleging him to be executor.69 In the first case he can not show that he has fully administered the estate, while in the latter case he may.70

The statutes sometimes provide who shall be deemed an executor de son tort, as for example it is provided in Georgia that if any person, without authority of law, wrongfully intermeddles with the personalty of a deceased individual whose estate has no legal representative, he shall be held ́and decreed an executor in his own wrong, and as such shall be liable for double the value of the property so possessed or converted by him." The double liability imposed is in the nature of a penalty, it does not apply if property is converted during the lifetime of the decedent.72 The only effect of such a statute is to double the common law liability.73

81267. Executor De Son Tort No Right to Sue.

While the law holds the executor de son tort to many liabilities, at the same time the law does not give him the right to sue.74 If he could sue his wrongful act would confer benefits on him and create powers in him which he could not have acquired but by his wrong.75 Where, however, one has been fraudulently induced by her at

69 Mountford v. Gibson, 4 East 441.

See, ante, § 1264, as to payment of decedent's debts by executor de son tort.

See, post, § 1271, as to forms of actions.

See, post, §§ 1273-1275, as to defenses executor de son tort may interpose.

70 Tobey v. Miller, 54 Me. 480. See, ante, § 1264.

71 Georgia Code, § 3886; Jennings v. Smith, 232 Fed. 921.

72 Allen v. Allen, 144 Ga. 687, 87 S. E. 891.

73 Bellows v. Goodall, 32 N. H. 97. 74 Francis v. Welch, 33 N. C. 215. 75 Gadsby v. Donelson, 10 Yerg. (18 Tenn.) 371.

torney to part with money belonging to the estate, she may sue in her individual capacity.76

§ 1268. Effect of Acts of Executor De Son Tort.

As a general rule it may be said that all lawful acts done in the professed administration of the estate by a person purporting to act as executor, which a rightful executor would have been bound to perform in due course of administration, binds the estate; where, however, the alleged executor does one single act only of an administrative character, the estate is not bound. To render an act binding, it must be shown that, at the time in question, the intermeddler was acting in the character of executor.77

An executor de son tort is bound by and will be held responsible for his acts. Those who know his true character may likewise be bound by their dealings with him. His acts, however, can not bind the rightful executor and others interested, except in so far as his acts are proper and legal, unless they have assented to or acquiesced in his illegal acts.78

A sale made by an executor de son tort without legal sanction confers on the purchaser no better title than he himself had.79 He can not sell the chattels of a decedent and pass good title to the purchaser as against a subsequently appointed lawful administrator, where such purchaser is not a creditor of the estate and does not take the property in discharge of a debt due him from the de

76 Broholm v. Anderson, 178 Ill. App. 623.

77 Walker v. Portland Savings Bank, 113 Me. 353, 93 Atl. 1025.

78 Caperton v. Ballard, 4 W. Va. 420.

79 Carpenter v. Going, 20 Ala. 587; Wilson v. Hudson, 4 Harr. (Del.) 168.

cedent.80 Where, however, the person selling afterward takes out letters of administration, the general rule is that he can pass or has passed a good title to the purchaser, although there is authority to the contrary.82 The reason for the rule is that letters of administration, by operation of law, relate to the death of the intestate and make valid all acts of the administrator in settlement of the estate.83

§1269. Where Executor De Son Tort Is Subsequently Regularly Appointed.

Where an executor de son tort is subsequently legally appointed and qualifies as administrator of the estate, as a general rule he is purged of his wrong and his tortious acts are legalized.84 However, there are modifications of the rule. If an action be brought against the executor de son tort prior to the issuance of letters of administration to him and arising out of tortious acts theretofore committed, the defendant's subsequent legal appointment as administrator and his plea that he is the lawful administrator will not defeat the plaintiff's action.85 Yet such subsequent appointment does, under the plea of plene administravit, relieve him from the result of certain acts which theretofore could not be shown in defense,

179; Nance v. Gray, 143 Ala. 234, 5 Ann. Cas. 55, 38 So. 916; Shillaber v. Wyman, 15 Mass. 322; Hatch v. Proctor, 102 Mass. 351; Magner v. Ryan, 19 Mo. 196; Rattoon v. Overacher, 8 Johns. (N. Y.) 126.

As to sales of property, see, ante, § 1268, n. 82, 83.

85 Green V. Dewit, 1 Root (Conn.) 183.