*

although the payments proved, under the general issue, to have been made by the executor de son tort amount to the full value of the goods sought to be recovered in the action of trespass or trover, the lawful executor or administrator shall not be nonsuited, but will still be entitled to a verdict for nominal damages. (y) And in the modern case of Woolley v. Clark, (2) a will was proved by the executor named in it, who, after probate, sold the goods of the testator. At the time of the sale he had notice of a subsequent will, which was afterwards proved, and the probate of the former will revoked on citation: whereupon the executor under the latter will, brought trover against the executor under the former, for the goods sold: and it was holden that the action was sustainable to recover the full value, and that the defendant was not entitled, in mitigation of damages, to show that he had administered assets to the amount. (a)

Again, this recouping in damages can only be allowed to the executor de son tort in cases where there are sufficient assets to satisfy all the debts of the deceased; for otherwise the rightful executor or administrator would be precluded, not only from giving preference to one creditor over others of equal degree, which is one of the privileges of his office, but also from satisfying his own debt, in priority to all those of equal degree, by way of retainer. (b)

What effect the

acts of an

It remains to be considered, what effect the acts of an executor de son tort may have on the goods of the de

(y) Anon. 12 Mod. 441; 2 Phillipps on Ev. 234, note (6), 7th ed. The contrary is lain down as to the action of trover, in Buller's Nisi Prius, 48; but the authority cited for this position does not support it, and it is, as it seems, incorrect. See Mountford v. Gibson, 4 East, 447, by Lord Ellenborough; Roscoe on Evidence, 617, 7th ed.; [Rattoon v. Overacker, 8 John. 126.]

(z) 5 B. & Ald. 744; S. C. 1 Dowl. & Ryl. 409.

(a) [Sce Bradley v. Commonwealth, 31 Penn. St. 522.] It must be observed, that the authorities in favor of the right of an executor de son tort to recoup, in damages, payments made in a due course of administration, were not cited in the argument

of this case, nor was the point mentioned. Ideo quare, whether it must be understood as overruling them.

(b) Wentw. Off. Ex. c. 14, p. 335, 14th ed.; Mountford v. Gibson, 4 East, 453, in the judgment of Lawrence J.; 2 Bl. Com. 507, 508; Elworthy v. Sandford, 3 H. & C. 330; [Appleton C. J. in Tobey v. Miller, 54 Maine, 483; Neal v. Baker, 2 N. H. 477. Under the statute of Massachusetts, an executor de son tort is not "allowed to retain or deduct any part of the goods or effects, except for such funeral expenses or debts of the deceased or other charges actually paid by him as the rightful executor or administrator might have been compelled to pay." Genl. Sts. c. 94, § 15.]

de son tort

ceased, with relation to the rightful executor or adminis- executor trator and the alienee of the executor de son tort. (b1)

shall have

on goods

him.

* It is laid down in Coulter's case (c) that "it is clear aliened by that all lawful acts, which an executor de son tort doth, are good." So it was said in Graysbrook v. Fox, (d) by Walsh, quod alii duo justiciarii concesserunt, that if an administrator under a grant which is void (by reason of there being a will and executor) alienes the goods of the deceased to pay the funeral, or debts, the sale is good and indefeasible. (d) And Lord Holt, in Parker v. Kett, (e) laid down that a legal act done by an executor de son tort shall bind the rightful executor, and shall alter the property; and that the reason is, because the creditors are not bound to seek farther than him who acts as executor; therefore, if an executor de son tort pays 1007. of the testator's in a bag to a creditor, the rightful executor shall not have trover against the creditor. (f)

But when it is thus generally laid down, that payments made in the due course of administration, by one who is executor de son tort, are good, that must be understood of cases where such payments are made by one who is proved to have been acting at the time in the character of executor, and not of a mere solitary act of wrong, in the very instance complained of, by one taking upon himself to hand over the goods of the deceased to a creditor. Thus in Mountford v. Gibson, (g) the goods in question had originally been sold by the defendant to the intestate in his lifetime; on his death, they not having been paid for, on application to the intestate's widow for that purpose, she delivered them back to the defendant, in satisfaction of his demand. No other acts appeared to have been done by the widow, to show that she had before taken upon herself to act as executrix. The administrator brought trover for the goods against the creditor; on whose behalf it was

(b) [See Carpenter v. Going, 20 Ala. 587; Woolfork v. Sullivan, 23 Ala. 548; Wylly v. King, Geo. Dec. pt. 11. 7; Wilde J. in Campbell v. Sheldon, 13 Pick. 8, 24.]

(c) 5 Co. 30 b.

(d) Plowd. 282.

(d1) [A person acting under void letters of administration may be treated as an executor in his own wrong. Bradley v. Commonwealth, 31 Penn. St. 622.]

(e) 1 Ld. Raym. 661; S. C. 12 Mod. 471.

(f) See, also, the judgment of Le Blanc J. in Mountford v. Gibson, 4 East, 454, and of Littledale J. in Oxenham v. Clapp, 1 B. & Ad. 313.

(g) 4 East, 441. [See Gilchrist J. in Leach v. Pillsbury, 15 N. H. 139; Giles v. Churchill, 5 N. H. 341; Hoar J. in Alvord v. Marsh, 12 Allen, 605.]

*

contended, that he had a right to protect himself in the action under such payment by the widow as executrix de son tort. But the court of king's bench held, on the ground above stated, that this was no defence. (g1) Accordingly, in Thomson v. Harding, (h) it was laid down in the judgment of the same court that the law is not that as against the true representative every payment from the assets of the deceased shall be valid, if made by a person who has so intermeddled with the property of the deceased as to render himself liable to be sued as executor de son tort. But that where the executor de son tort is really acting as executor, and the party with whom he deals has fair reason for supposing that he has authority to act as such, his acts shall bind the rightful executor and shall alter the property.

It must further be observed that the act of an executor de son tort is good against the true representative of the deceased only where it is lawful, and such an act as the true representative was bound to perform in the due course of administration. (i)

adminis

Where a man has acted as executor de son tort, and afterwards How far an obtains letters of administration, a question may arise, how far he is bound, in his character of rightful administrator, by his own acts done while executor de son as executor tort. (i1) This subject will be considered hereafter, to

trator is bound by

his own acts

de son tort.

(g1) [See Pickering v. Coleman, 12 N. H. 148; Alvord v. Marsh, 12 Allen, 605; Wilson v. Hudson, 4 Harring. 169; Mitchell v. Kirk, 3 Sheed, 319.]

(h) 2 El. & Bl. 630.

(i) Buckley v. Barber, 6 Exch. 164; [Gilchrist J. in Pickering v. Coleman, 12 N. H. 148, 151, 152; Giles v. Churchill, 5 N. H. 341; Gay v. Lemle, 32 Miss. 309; ante, 271, note (b).]

(i) [Although this may be a question, it is still said to be "certain that he can ratify and make valid, by relation, all those acts which would have been valid, had he been the rightful administrator." Outlaw v. Farmer, 71 N. Car. 35; Alvord v. Marsh, 12 Allen, 603. In Walker v. May, 2 Hill Ch. 22, it was held that where a judgment is recovered against one as executor de son tort, and he afterwards takes out letters of administration on the estate, the judgment will bind the estate in his

hands, unless there be fraud or collusion. The administrator in such case is estopped to deny his former executorship. An executor de son tort, who had sold and delivered goods, belonging to the estate of the deceased, by a bill of sale with warranty of title, to A. at the request and on the credit of B., who knew that the assumed vendor was acting in his own wrong, was afterwards appointed administrator of the estate, and subsequently notified B. that he confirmed the sale; and B. said that the sale was fair and the price should be paid; and A. had always remained in possession of the goods; the administrator was held entitled to maintain an action against B. for the price of the goods. Hatch v. Proctor, 102 Mass. 351. The promise of an executor de son tort, to pay a debt of the deceased, will not prevent the bar of the statute of limitations to a suit for the debt brought against him afterwards, when

gether with the question as to what may be done by an administrator before letters of administration are granted. (k)

he is rightful administrator. Hazelden v. Whitesides, 2 Strobh. 353; Hansford v.

Elliott, 9 Leigh, 79. See ante, 265, note (r).]

(k) Post, pt. 1. bk. v. ch. 1. § 11.

* CHAPTER THE SIXTH.

OF THE EXECUTOR'S REFUSAL OR ACCEPTANCE OF THE OFFICE.

cannot be

SECTION I.

When and how the Office may be refused.

THE office of executor being a private one of trust, named by Executors the testator, and not by the law, the person nominated compelled may refuse, though he cannot assign the office; (a) and even if in the lifetime of the testator he has agreed to

to accept

the office:

accept the office, it is still in his power to recede. (b)

be convened by the ordi

nary to accept or

refuse.

But though the executor cannot be compelled to accept the but might executorship, whether he will or not, yet by stat. 21 Hen. 8, c. 5, s. 8, the ordinary might convene before him (c) any person made and named executor of any testament, "to the intent to prove or refuse the testament;" and if he neglected to appear, he was, previous to the stat. 53 Geo. 3, c. 127, punishable by excommunication for a contempt; (d) and might subsequently be dealt with in the mode substituted by that statute, s. 2, for excommunication. (e) This power of citation to take or refuse probate was, it is apprehended, transferred to the court of probate by the 23d section of the court of probate act, 1857, and a neglect to appear to the citation may be punished as for a contempt of the court under the 25th section.

* The time allowed to the person named executor, to deliberate

(a) Bac. Abr. Exors. E. 9. See Douglas v. Forrest, 4 Bing. 704, in the judgment of Best C. J.; [Dunning v. Ocean National Bank of the City of New York, 6 Lansing, 296, 298, and cases cited.]

(b) Doyle v. Blake, 2 Sch. & Lef. 239. (c) See stat. I Edw. 6, c. 2, as to the form of the citation.

(d) Bro. Executors, pl. 90; Wentw. Off. Ex. 88, 14th ed.; Treat. on Eq. bk. 4, pt. 2, c. 1, s. 4.

(e) See stat. 2 & 3 W. 4, c. 93. (Act for enforcing Process upon Contempts in the Courts Ecclesiastical.)