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a holding to the effect that where ied; but, after having replevied, we pledged property (an automobile) had do not think he could exercise been delivered secretly to a storage a use of the property under the recompany, a lien for storage could not plevy which would make it contribute be imposed on it.
revenue to the business pursued by In Cuneo y. Freeman (1912) 137 him, and by this process force upon N. Y. Supp. 885, it was held that a appellant (owner of the automobile) garage keeper who had actual posses- involuntary contribution to the busision of taxicabs kept in his garage ness, compelling him, contrary to his by the owner was in a position to as- wishes, thus to yield contribution sert a lien, unless he was barred from through a course pursued by appellee doing so by a former judgment fore- with reference to his property not closing a chattel mortgage on the taxi- necessary to appellee's full protection, cabs.
for which appellant had fully provided In Bemheim V. Roth (1916) 157 by a sequestration bond." N. Y. Supp. 902, the court held that In Katzman v. 'Mannie (1919) 46 a garage keeper entitled to storage Ont. L. Rep. 121, it was held that charges on an automobile has a lien where an automobile was held by a on the automobile, but if the owner garage man under the mistaken noof the car owes no storage charges, tion that he had a lien on same for and the garage man wrongfully re- repair charges, he was not entitled to fuses to deliver the car, then the re- recover storage charges against the fusal would give rise to an action of owner while he, the garage keeper, conversion.
was thus unlawfully detaining the In Hudson v. Breeding (1920) car. · Tex. Civ. App. —, 224 S. W. 718, where In Webster v. Black (1914) 24 an owner of an automobile which was Manitoba L. R. 456, 28 West. L. R. being held by a garage man for re- 300, 17 D. L. R. 15, it was held that pair charges instituted suit to recover the relationship of garage keeper was the automobile, and applied for and not changed into that of warehousewas issued a sequestration bond, and man, so as to entitle a garage keeper the garage keeper recovered the auto- to assert a lien for storage of an mobile on the same date by giving automobile, where the owner of the replevy bond, the court held that the car stored it with the garage man garage keeper was not entitled to a until a broken wheel could be relien for, and could not collect for, paired, as the owner's full enjoyment storage on the car after the date of of the use was suspended only by the the replevy, as he would have been lack of a wheel, and he was at liberty sufficiently protected by the sequestra- to take the car out as soon as the tion bond, without retaining the car wheel was fixed, and use it as he had in his possession and storing it. The previously done, it appearing that court says:
"He (garage man], of prior to the damage to the wheel he course, but exercised a legal right had been keeping it in the garage, conferred by statute when he replev- with liberty to use it as he saw fit.
R. P. D.
(- Nev. 221 Pao. 241.)
RE ESTATE OF CHARLES PEDROLI, Deceased.
Executor and administrator — liability for expenses of preservation.
1. An estate is chargeable with all the expenses incurred by one acting as administrator, without authority, for its preservation.
[See note on this question beginning on page 846.] - termination of rights.
sation for the injury caused by the 2. An administrator has no right to wrong. possession of the estate after expira- [See 8 R. C. L. 431; 2 R. C. L. Supp. tion of the time when an appeal might
609; 4 R. C. L. Supp. 553.] be taken from an order relieving him Executor and administrator extent from his office, if no valid appeal is
of liability for intermeddling with taken.
6. One who intermeddles with the Appeal right of administrator. estate of a deceased person without
3. An administrator cannot appeal right is liable for all assets of the in his official capacity from an order estate which come into his hands, but removing him from office.
entitled to protection for all acts
which a rightful executor might have Executor and administrator acts done which are not for his own benepending appeal — validity.
fit. 4. An administrator who attempts [See 11 R. C. L. 461; 2 R. C. L. Supp. to appeal in his official capacity from
1257.) an order relieving him from office is a - allowance for unpaid bills. wrongdoer in attempting to meddle 7. That one who has intermeddled with the estate between the passing of
with an estate without authority has the order and the decision of the ap
not paid bills incurred for preservapeal.
tion of the estate does not prevent al
lowance to him of their amount when Damages tort measure.
he turns over the estate to the right5. The damages for tort are compen- ful administrator.
APPEAL by the administratrix from an order of the District Court for Humboldt County (Callahan, J.) approving and allowing certain obligations and expenditures made by a former administrator of the estate of her deceased husband, and from an order denying a motion for new trial. Affirmed.
The facts are stated in the opinion of the court.
No person who legally comes into to revocation of his letters, yet he is possession of the assets of an estate not entitled to bind the estate or its can be held to be an executor de son legal representative by any contracts tort in regard thereto.
which he made or expenditures which 24 C. J. p. 1213, $ 205; 11 R. C. L. p. he incurred subsequently to the revo456, § 562.
cation of his letters. But even if Scott, after his letters 11 R. C. L. 463, § 571; Lenderink v. were revoked, was in effect an execu- Sawyer, 92 Neb. 587, L.R.A.1915D, tor de son tort, and even if the pro- 948, 138 N. W. 744, Ann. Cas. 1914A, bate court had jurisdiction to settle 261; 24 C. J. p. 1218, § 291; Burke v. Huff, 103 Ga. 598, 30 S. E. 546; Barr 112 Pac. 472; Re Van Loan, 142 Cal. v. Cubbage, 52 Mo. 404; Buckley v. 429, 76 Pac. 40; Re Moore, 86 Cal. 72, Barber, 6 Exch. 164, 155 Eng. Reprint, 24 Pac. 846. 498, 20 L. J. Exch. N. S. 114, 15 Jur. Scott should receive credit for the 63; Caperton v. Ballard, 4 W. Va. 420. money he expended for work, ma
An executor de son tort, or a wrong- terials, hay, etc., used to preserve the doer who intermeddles with the prop- estate. erty of an estate, is a person over Slate v. Henkle, 45 Or. 430, 78 Pac. whom a probate court has no jurisdic- 325; Rutherford v. Thompson, 14 Or. tion, either to compel him to account 236, 12 Pac. 383; Walker v. Portland or to consider his claims for credits; Sav. Bank, Ann. Cas. 1917E, 4, note; the only province of the probate court 3 Alexander, Wills, TT 1273, 1275. is to administer upon an estate and pass upon the accounts of a duly ap- Coleman, J., delivered the opinion pointed, qualified, and acting executor of the court: or administrator.
The facts of this matter are Grace v. Seibert, 235 Ill. 190, 22 these: On January 12, 1919, one L.R.A.(N.S.) 301, 85 N. E. 308; Elder Charles Pedroli, a resident of Humv. Littler, 15 Iowa, 65; Screven v.
boldt county, died intestate, leaving Bostwick, 7 S. C. Eq. (2 M'Cord) 410,
real and personal estate in said 16 Am. Dec. 664; Collier v. Jones, 86
county. Joseph Scott, the respondInd. 342; Power's Estate, 14 Phila. 289; Peebles's Appeal, 15 Serg. & R. 41;
ent, applied to the district court for Stockton v. Wilson, 3 Penr. & W. 129. letters of administration and in due
The court, when administering upon time was appointed administrator, the estate of a deceased person or whereupon he took possession of the upon the estate of a minor, is a court assets of the estate. Thereafter of limited jurisdiction, and its author- Louise Pedroli, claiming to be the ity is such as given by the statute, or common-law wife of the deceased, necessarily implied therein. 15 C. J. p. 1011, 8 426; Re Allgier,
made application for the removal of 65 Cal. 228, 3 Pac. 849.
Scott as administrator and that she In the settlement of an executor's
be appointed in his place to adminisor administrator's accounts, he can be ter upon the estate. On March 30, allowed credits only for money actu
1920, after full hearing upon such ally expended, and not for obligations application, the court made an orremaining unpaid.
der removing Joseph Scott as adminRe Blair, 49 App. Div. 417, 63 N. Y.
istrator and appointing Louise PeSupp. 678; Re Brintnall, 40 Misc. 67,
droli administratrix thereof. Scott, 81 N. Y. Supp. 250; Re White, 6 Dem. 375, 15 N. Y. S. R. 729; Williamson's
as administrator, undertook to apEstate, 6 W. N. C. 452; Stephenson peal from said order of removal to v. Stephenson, 3 Hayw. (Tenn.) 123; this court, giving the proper notice Bottoms v. Rardon, 156 Cal. 129, 103 thereof and an undertaking on apPac. 849.
peal. However, no stay pending the The very meaning of the word "ac
disposition of the matter on appeal count” precludes the allowing of cred
was obtained. Louise Pedroli qualiits to the administrator until he has
fied as administratrix and made a actually paid out the amount of money for which he asks credit.
motion to dismiss the appeal taken Purvis v. Kroner, 18 Or. 414, 23 Pac. by Scott, which was sustained. Re 260; Mersereau v. Bennett, 62 Misc.
Pedroli, 44 Nev. 258, 193 Pac. 852. 356, 115 N. Y. Supp. 20; Re Williams, Upon the qualification of Mrs. Pe47 Mont. 325, 132 Pac. 421; Lucich v. droli as administratrix she demandMedin, 3 Nev. 93, 93 Am. Dec. 376.
ed of Scott the possession of all the Messrs. Campbell & Robins, for re
assets of the estate, which he respondent:
fused to deliver to her. On June 8, When Scott appealed from the order revoking his letters, any rights which
1920, Scott filed what he designated Louise Pedroli may have had under
as his "First Account” as administhe order appointing her were sus
trator, and on March 15, 1921, he pended.
filed what he designated as his "SecRe Chadbourne, 14 Cal. App. 481, ond Account” as such administrator. (- Nev. -, 221 Pac. 241.) He contends that after his appeal 460, 59 Pac. 823; Re Chadbourne, 14 was finally disposed of he delivered Cal. App. 481, 112 Pac. 472. to Louise Pedroli, on or about the It is said on behalf of appellant 15th of March, 1921, all of the prop- that we have no such statute as that erty of the estate.
relied upon by the court in the deUpon the hearing upon said two cisions just cited, and, furthermore, accounts the court approved and al- that in those cases an actual right lowed certain obligations contracted of appeal was availed of, whereas and expenditures made by Scott as there was no right of appeal availed administrator after the entry of the of in this estate, as was decided order removing him as administra- in Re Pedroli's Estate, supra, and tor. Louise Pedroli, the administra- therefore the retention of the proptrix, has appealed from such order, erty by Scott was not pursuant to and from an order denying a motion lawful authority, and hence he can for a new trial.
be credited with no obligation conThe contention of counsel for ap- tracted subsequent to the order of pellant is stated in his brief as fol. removal. lows: "Scott acquired his repre- Having held on the former appeal sentative capacity and right to ad- that Scott had no right of appeal as minister the estate solely by virtue administrator (Re Pedroli, supra), of the letters issued to him as ad- and none other hav
Executor and ministrator; these letters were by ing been taken, we administrator the court revoked and canceled, and are clearly of the termination of
rights. when so revoked all rights and pow- opinion that Scott ers vested in Scott, by reason of the wrongfully held possession of the issuance of the letters, ceased by estate after the time had expired reason of the judgment revoking the within which an appeal might rightletters. When the letters of admin- fully have been taken. This concluistration were revoked, as they were sion cannot successfully be quesin Scott's case, March 30, 1920, he tioned, for it is self-evident that one ceased to exist in his official capac- who has no right cannot invest himity. On April 7th letters were is- self with one by undertaking to do sued to this appellant, and from that which he is not authorized to that time until the present she has do, but which someone else may do. been the only person authorized by That was the situation which prelaw to spend any of the assets of sented itself by Scott's attempted this estate or to contract any obliga- appeal. We held that it was of no tions for which it should pay." effect ab initio. Such is clearly the
Thus, it will be seen that it is con- correct rule. Edceded that Scott originally acquired ney
V. Baum, 53 Appeal-right of
administrator. possession of the estate legally and Neb. 116, 73 N. W. so held it until the entry of the or- 454; National Bank v. Stanton, 116 der of removal. It is contended on Mass. 435; Taylor v. Savage, 1 How. behalf of respondent that Louise 282, 11 L. ed. 132; More v. More, Pedroli, as administratrix, was not 127 Cal. 460, 59 Pac. 823; Union entitled to the possession of the Sav. & T. Co. v. Eddingfield, — Ind. property of the estate pending the App. ---, 134 N. E. 497. appeal, and that respondent could Having reached the above conclunot legally or safely surrender pos- sion, but one question remains: session to her, and that the only per- Can Scott be credited with the obson who would be entitled thereto ligations incurred and the expendipending such appeal would be a spe- tures made by him after the entry cial administrator, and that none of the order of removal and prior to such was appointed or qualified. To the final disposition of the former sustain this contention our attention appeal by this court? is directed to Re Moore, 86 Cal. 72, Counsel for respondent asserts 24 Pac. 846; More v. More, 127 Cal. that Scott, during the pendency of the appeal, occupied a position anal- executor or administrator, but also ogous to that of an executor de son so as to be sued as executor by a tort at common law. It was said creditor of the deceased, or by a legin the oral argument that there can atee; for, as Lord Cottenham obbe no such thing in Nevada as an serves, an executor de son tort has executor de son tort. Both counsel
Both counsel all the liabilities, though none of the seem to have proceeded upon that privileges, that belong to the chartheory, but no argument is made to acter of executor." support the statement. Our atten- It is said in 1 Williams on Exection is not called to any statute abol- utors, 6 Am. ed. at page 305: ishing the common-law rule relative “When a man has so acted as to be. to the liability of one as such, as had come in law an executor de son tort, been done in some states, and we do he thereby renders himself liable not decide as to its existence. We not only to an action by the rightful observe, however, that some courts executor or administrator, but also have held that it is repugnant to the to be sued as executor by a creditor letter and spirit of the law of the of the deceased, or by a legatee; for state. 2 Woerner, Administration, an executor de son tort has all the 3d ed. § 198. Proceeding upon the liabilities, though none of the privassumption that there can be no ileges, that belong to the character
such thing under of executor." Executor and administrator
our practice as an Mr. Woerner in his American acts pending ap- executor
Law of Administration, 2d ed. $ 194, peal-validity.
tort, it naturally says: "The liability of an executor follows that the respondent must be de son tort does not, at common law, held liable as a wrongdoer. This extend beyond the goods which he being true, the question is solely as has administered; for while he is to the measure of his liability, and not allowed, by his own wrongful naturally we must look for a stand- act, to acquire any benefit, yet he is 'ard by which to measure it.
protected, if he pleads properly, for In considering the contention of all acts other than those for his own the appellant, we must bear in mind advantage, which a rightful execthe fact that the respondent came utor might do.” into the possession of the estate in Such is the well-established rule. question as an officer of the court 11 Am. & Eng. Enc. Law, 2d ed. having jurisdiction of the settlement 1351; 11 R. C. L. p. 461; 24 C. J. $ of estates of deceased persons. He 2933. Such was the rule established contends that his action at all times by statute (43 Eliz, chap. 8). 4 Bahas been in good faith, and such con, Abr. p. 28. must have been the conclusion of the We think the respondent should lower court.
be liable for all of the assets of the It is the general rule in actions estate which came into his hands, at law that one may recover such and that he should be protected in damage resulting from the tort of all of his acts (not
Executor and another as may for his own benefit)
compensate him for which a rightful ex- extent of liathe
damage sus ecutor might have medaling with tained, and at common law one who done.
It is very intermeddled with the goods of a de- evident that it was upon this theory ceased person was held to be an that the lower court proceeded. We executor de son tort. Mr. Schouler think this rule is the correct one, in his work on Executors & Admin- and that it is in consonance with istrators, at $ 187, says: “The le- reason and justice and the common gal consequence of becoming what law, because by adopting it the eswas styled an executor de son tort tate is not made to suffer, nor does was to render oneself liable not the respondent profit as a result of only to an action by the rightful his own wrong. If the respondent