a holding to the effect that where pledged property (an automobile) had been delivered secretly to a storage company, a lien for storage could not be imposed on it.

In Cuneo v. Freeman (1912) 137 N. Y. Supp. 885, it was held that a garage keeper who had actual possession of taxicabs kept in his garage by the owner was in a position to assert a lien, unless he was barred from doing so by a former judgment foreclosing a chattel mortgage on the taxicabs.

In Bemheim v. Roth (1916) 157 N. Y. Supp. 902, the court held that a garage keeper entitled to storage charges on an automobile has a lien on the automobile, but if the owner of the car owes no storage charges, and the garage man wrongfully refuses to deliver the car, then the refusal would give rise to an action of conversion.

In Hudson v. Breeding (1920) Tex. Civ. App. —, 224 S. W. 718, where an owner of an automobile which was being held by a garage man for repair charges instituted suit to recover the automobile, and applied for and was issued a sequestration bond, and the garage keeper recovered the automobile on the same date by giving replevy bond, the court held that the garage keeper was not entitled to a lien for, and could not collect for, storage on the car after the date of the replevy, as he would have been sufficiently protected by the sequestration bond, without retaining the car in his possession and storing it. The court says: "He [garage man], of course, but exercised a legal right conferred by statute when he replev

In Webster v. Black (1914) 24 Manitoba L. R. 456, 28 West. L. R. 300, 17 D. L. R. 15, it was held that the relationship of garage keeper was not changed into that of warehouseman, so as to entitle a garage keeper to assert a lien for storage of an automobile, where the owner of the car stored it with the garage man until a broken wheel could be repaired, as the owner's full enjoyment of the use was suspended only by the lack of a wheel, and he was at liberty to take the car out as soon as the wheel was fixed, and use it as he had previously done, it appearing that prior to the damage to the wheel he had been keeping it in the garage, with liberty to use it as he saw fit.

R. P. D.

Huff, 103 Ga. 598, 30 S. E. 546; Barr v. Cubbage, 52 Mo. 404; Buckley v. Barber, 6 Exch. 164, 155 Eng. Reprint, 498, 20 L. J. Exch. N. S. 114, 15 Jur. 63; Caperton v. Ballard, 4 W. Va. 420. An executor de son tort, or a wrongdoer who intermeddles with the property of an estate, is a person over whom a probate court has no jurisdiction, either to compel him to account or to consider his claims for credits; the only province of the probate court is to administer upon an estate and pass upon the accounts of a duly appointed, qualified, and acting executor or administrator.

Grace v. Seibert, 235 Ill. 190, 22 L.R.A. (N.S.) 301, 85 N. E. 308; Elder v. Littler, 15 Iowa, 65; Screven v. Bostwick, 7 S. C. Eq. (2 M'Cord) 410, 16 Am. Dec. 664; Collier v. Jones, 86 Ind. 342; Power's Estate, 14 Phila. 289; Peebles's Appeal, 15 Serg. & R. 41; Stockton v. Wilson, 3 Penr. & W. 129.

The court, when administering upon the estate of a deceased person or upon the estate of a minor, is a court of limited jurisdiction, and its authority is such as given by the statute, or necessarily implied therein.

15 C. J. p. 1011, § 426; Re Allgier, 65 Cal. 228, 3 Pac. 849.

In the settlement of an executor's or administrator's accounts, he can be allowed credits only for money actually expended, and not for obligations remaining unpaid.

Re Blair, 49 App. Div. 417, 63 N. Y. Supp. 678; Re Brintnall, 40 Misc. 67, 81 N. Y. Supp. 250; Re White, 6 Dem. 375, 15 N. Y. S. R. 729; Williamson's Estate, 6 W. N. C. 452; Stephenson v. Stephenson, 3 Hayw. (Tenn.) 123; Bottoms v. Rardon, 156 Cal. 129, 103 Pac. 849.

The very meaning of the word "account" precludes the allowing of credits to the administrator until he has actually paid out the amount of money for which he asks credit.

Purvis v. Kroner, 18 Or. 414, 23 Pac. 260; Mersereau v. Bennett, 62 Misc. 356, 115 N. Y. Supp. 20; Re Williams, 47 Mont. 325, 132 Pac. 421; Lucich v. Medin, 3 Nev. 93, 93 Am. Dec. 376.

Messrs. Campbell & Robins, for respondent:

When Scott appealed from the order revoking his letters, any rights which Louise Pedroli may have had under the order appointing her were suspended.

Re Chadbourne, 14 Cal. App. 481,

112 Pac. 472; Re Van Loan, 142 Cal. 429, 76 Pac. 40; Re Moore, 86 Cal. 72, 24 Pac. 846.

Scott should receive credit for the money he expended for work, materials, hay, etc., used to preserve the estate.

Slate v. Henkle, 45 Or. 430, 78 Pac. 325; Rutherford v. Thompson, 14 Or. 236, 12 Pac. 383; Walker v. Portland Sav. Bank, Ann. Cas. 1917E, 4, note; 3 Alexander, Wills, ¶¶ 1273, 1275.

Coleman, J., delivered the opinion of the court:

The facts of this matter are these: On January 12, 1919, one Charles Pedroli, a resident of Humboldt county, died intestate, leaving real and personal estate in said. county. Joseph Scott, the respondent, applied to the district court for letters of administration and in due time was appointed administrator, whereupon he took possession of the assets of the estate. Thereafter Louise Pedroli, claiming to be the common-law wife of the deceased, made application for the removal of Scott as administrator and that she be appointed in his place to administer upon the estate. On March 30, 1920, after full hearing upon such application, the court made an order removing Joseph Scott as administrator and appointing Louise Pedroli administratrix thereof. Scott, as administrator, undertook to appeal from said order of removal to this court, giving the proper notice thereof and an undertaking on appeal. However, no stay pending the disposition of the matter on appeal was obtained. Louise Pedroli qualified as administratrix and made a motion to dismiss the appeal taken by Scott, which was sustained. Re Pedroli, 44 Nev. 258, 193 Pac. 852. Upon the qualification of Mrs. Pedroli as administratrix she demanded of Scott the possession of all the assets of the estate, which he refused to deliver to her. On June 8, 1920, Scott filed what he designated as his "First Account" as administrator, and on March 15, 1921, he filed what he designated as his "Second Account" as such administrator.

He contends that after his appeal was finally disposed of he delivered to Louise Pedroli, on or about the 15th of March, 1921, all of the property of the estate.

Upon the hearing upon said two accounts the court approved and allowed certain obligations contracted and expenditures made by Scott as administrator after the entry of the order removing him as administrator. Louise Pedroli, the administratrix, has appealed from such order, and from an order denying a motion for a new trial.

The contention of counsel for appellant is stated in his brief as follows: "Scott acquired his representative capacity and right to administer the estate solely by virtue of the letters issued to him as administrator; these letters were by the court revoked and canceled, and when so revoked all rights and powers vested in Scott, by reason of the issuance of the letters, ceased by reason of the judgment revoking the letters. When the letters of administration were revoked, as they were in Scott's case, March 30, 1920, he ceased to exist in his official capacity. On April 7th letters were issued to this appellant, and from that time until the present she has been the only person authorized by law to spend any of the assets of this estate or to contract any obligations for which it should pay."

Thus, it will be seen that it is conceded that Scott originally acquired possession of the estate legally and so held it until the entry of the order of removal. It is contended on behalf of respondent that Louise Pedroli, as administratrix, was not entitled to the possession of the property of the estate pending the appeal, and that respondent could not legally or safely surrender possession to her, and that the only person who would be entitled thereto pending such appeal would be a special administrator, and that none such was appointed or qualified. To sustain this contention our attention is directed to Re Moore, 86 Cal. 72, 24 Pac. 846; More v. More, 127 Cal.

460, 59 Pac. 823; Re Chadbourne, 14 Cal. App. 481, 112 Pac. 472.

It is said on behalf of appellant that we have no such statute as that relied upon by the court in the decisions just cited, and, furthermore, that in those cases an actual right of appeal was availed of, whereas there was no right of appeal availed of in this estate, as was decided in Re Pedroli's Estate, supra, and therefore the retention of the property by Scott was not pursuant to lawful authority, and hence he can be credited with no obligation contracted subsequent to the order of removal.

Executor and

rights.

Having held on the former appeal that Scott had no right of appeal as administrator (Re Pedroli, supra), and none other having been taken, we administratorare clearly of the termination of opinion that Scott wrongfully held possession of the estate after the time had expired within which an appeal might rightfully have been taken. This conclusion cannot successfully be questioned, for it is self-evident that one who has no right cannot invest himself with one by undertaking to do that which he is not authorized to do, but which someone else may do. That was the situation which presented itself by Scott's attempted appeal. We held that it was of no effect ab initio. Such is clearly the correct rule. Ed

administrator.

ney v. Baum, 53 Appeal-right of Neb. 116, 73 N. W.

454; National Bank v. Stanton, 116 Mass. 435; Taylor v. Savage, 1 How. 282, 11 L. ed. 132; More v. More, 127 Cal. 460, 59 Pac. 823; Union Sav. & T. Co. v. Eddingfield, - Ind. App., 134 N. E. 497.

Having reached the above conclusion, but one question remains: Can Scott be credited with the obligations incurred and the expenditures made by him after the entry of the order of removal and prior to the final disposition of the former appeal by this court?

Counsel for respondent asserts that Scott, during the pendency of

the appeal, occupied a position analogous to that of an executor de son tort at common law. It was said in the oral argument that there can be no such thing in Nevada as an executor de son tort. Both counsel seem to have proceeded upon that theory, but no argument is made to support the statement. Our atten

tion is not called to any statute abolishing the common-law rule relative to the liability of one as such, as had been done in some states, and we do not decide as to its existence. We observe, however, that some courts. have held that it is repugnant to the letter and spirit of the law of the state. 2 Woerner, Administration, 3d ed. § 198. Proceeding upon the assumption that there can be no

Executor and

such thing under

administrator- our practice as an acts pending ap- executor de son

peal-validity. tort, it naturally

follows that the respondent must be held liable as a wrongdoer. This being true, the question is solely as to the measure of his liability, and naturally we must look for a standard by which to measure it.

In considering the contention of the appellant, we must bear in mind the fact that the respondent came into the possession of the estate in question as an officer of the court having jurisdiction of the settlement of estates of deceased persons. He contends that his action at all times has been in good faith, and such must have been the conclusion of the lower court.

It is the general rule in actions at law that one may recover such damage resulting from the tort of another as may

measure.

Damages-tort- compensate him for the damage sustained, and at common law one who intermeddled with the goods of a deceased person was held to be an executor de son tort. Mr. Schouler in his work on Executors & Administrators, at § 187, says: "The legal consequence of becoming what was styled an executor de son tort was to render oneself liable not only to an action by the rightful

executor or administrator, but also so as to be sued as executor by a creditor of the deceased, or by a legatee; for, as Lord Cottenham observes, an executor de son tort has all the liabilities, though none of the privileges, that belong to the character of executor."

It is said in 1 Williams on Executors, 6 Am. ed. at page 305: "When a man has so acted as to become in law an executor de son tort, he thereby renders himself liable not only to an action by the rightful executor or administrator, but also to be sued as executor by a creditor of the deceased, or by a legatee; for an executor de son tort has all the liabilities, though none of the privileges, that belong to the character of executor."

Mr. Woerner in his American Law of Administration, 2d ed. § 194, says: "The liability of an executor de son tort does not, at common law, extend beyond the goods which he has administered; for while he is not allowed, by his own wrongful act, to acquire any benefit, yet he is protected, if he pleads properly, for all acts other than those for his own advantage, which a rightful executor might do."

Such is the well-established rule. 11 Am. & Eng. Enc. Law, 2d ed. 1351; 11 R. C. L. p. 461; 24 C. J. § 2933. Such was the rule established by statute (43 Eliz. chap. 8). 4 Bacon, Abr. p. 28.

We think the respondent should be liable for all of the assets of the estate which came into his hands, and that he should be protected in all of his acts (not for his own benefit) which a rightful executor might have

done.

Executor and

administratorextent of liameddling with

bility for inter

estate.

It is very evident that it was upon this theory that the lower court proceeded. We think this rule is the correct one, and that it is in consonance with reason and justice and the common law, because by adopting it the estate is not made to suffer, nor does the respondent profit as a result of his own wrong. If the respondent