It therefore legalizes receipts of property by the administrator for which he would otherwise have been responsible as executor de son tort; and requires him to account for them in regular course of administration. Shillaber v. Wyman, 15 Mass. 322; Andrew v. Gallison, Ib. 325, n.; Priest v. Watkins, 2 Hill (N. Y.) 225. It has indeed been doubted whether an executor de son tort can give any title to the goods of the intestate as against the rightful administrator, especially where the conveyance is the single wrongful act which makes him executor de son tort. Mountford v. Gibson, 4 East, 441; Pickering v. Coleman, 12 N. H. 148. But no such question can arise where, as in the present case, the alleged executrix de son tort becomes herself afterward the lawful administratrix. Her acts of receiving debts due to the estate, or property belonging to it, become by relation lawful acts of administration, for which she is liable to account, to the same extent as if they had occurred after the letters of administration were granted. The liability thus imposed upon her necessarily involves a validity in her acts which is a protection to those who have dealt with her concerning the estate. The plaintiff, therefore, if she has undertaken to receive a debt due to the estate which she represents before her appointment as administratrix, and has given a discharge or acquit tance therefor which would have been valid if she had then been duly appointed, has made herself chargeable with the whole amount of the debt; her subsequent appointment gave complete validity to the transaction; and she cannot maintain her action. It then remains to determine whether, upon the facts agreed, the defendant paid or satisfied the debt due from him to the intestate. The claim annexed to the plaintiff's writ is for work and labor, $300. The defendant has filed a declaration in set-off amounting to $788.95, and embracing a very large number and variety of charges. Among them were some claims against the administratrix personally, for money and rent due from her after the death of her intestate. She gave to the defendant a receipt in full of all demands on account of the estate, including a settlement of these personal liabilities, on the payment by him of $17. The facts show that, upon a careful computation of all amounts proved on each side, this sum was not sufficient by the amount of $1.20. But we can have no doubt that an administratrix, who is herself indebted to a debtor of the estate, may, if she chooses, accept a discharge of her own debt toward the payment of the debt due to her as administratrix. By so doing she makes herself answerable to the estate for the whole debt which she thus settles and discharges. And while it is clearly settled that the receipt of a less sum is no valid discharge of a larger amount which is due, yet this applies only to the case of an ascertained and undisputed debt. The rule has no application to the case of an accounting together between two parties having various and unliquidated demands against each other. As the plaintiff's demand was for labor, of which both the time and the price were to be proved or agreed; as the defendant had an account of a much larger amount; as questions of interest might very likely arlse; and as the sum fixed by the parties, without fraud or concealment of facts, was within such a trifling amount of the sum appearing to be due upon a new and careful computation of the books; the case comes precisely within the authority of Donohue v. Woodbury, 6 Cush. 148. The settlement between the plaintiff and defendant was in the nature of an insimul computassent; and the receipt in full was a bar to the action. Judgment for the defendants. GILKEY v. HAMILTON, SUPREME COURT OF MICHIGAN. 1871. [Reported 22 Mich. 283.] ERROR to Kalamazoo Circuit. The plaintiffs below, as administrators of the estate of Harvey Hamilton, brought their action in the Circuit Court of the County of Kalamazoo against Edward Gilkey, of replevin for a horse, which belonged to their intestate at the time of his death. The plaintiffs, who are respectively the son and wife of Harvey Hamilton, subsequent to the death of Hamilton and prior to the issuing of letters of administration to them, had delivered the horse to an agent with instructions to sell or dispose of him. Under these instructions the agent transferred the horse to defendant Gilkey, who claimed that the transaction was a valid sale, and refused to deliver the horse to the plaintiffs when demanded by them after they had received their letters of administration. On the trial the court excluded all evidence of the instructions by the plaintiffs relative to the sale or transfer of the horse, prior to their appointment as administrators; and, under the charge of the court, they had a verdict and judgment, which the defendant, Gilkey, brings into this court for review. Arthur Brown and D. D. Hughes, for plaintiff in error. H. F. Severens, for defendant in error, was stopped by the court. COOLEY, J. This case presents the question whether, where one interferes with the property of a deceased person and sells a portion thereof without right, and is afterwards appointed administrator on the estate of such deceased person, he will be estopped by his prior acts from recovering the property for the estate. The plaintiff in error insists that he is; and he calls our attention to a considerable list of judicial decisions in which it has been held, that when one is appointed administrator on the estate of a deceased person, his title relates back to, and takes effect from, the date of the death of the intestate. And the inference he deduces from these cases is, that the legal effect of whatever is done by the person thus appointed inter mediate the death of the intestate and his own appointment, is precisely the same as though he had held letters of administration at that time. The doctrine of relation is a familiar and important one, and, indeed, is quite necessary to the protection of the interests of the estate. But this necessity is the reason upon which it rests, and it is no part of its purpose to legalize lawless acts which may, and generally would, work the estate a prejudice. Under our probate system, an administrator is a mere officer of the law, who has title to the assets for the purpose of collecting and disposing of the same for the benefit of creditors and the next of kin. When he receives his letters, his title is correctly said to relate back to the death of the intestate; but it is an official title, and his being clothed with it cannot make good the prior acts which he has not assumed to do officially, but in a different capacity from that in which he is now acting. One man appointed administrator cannot have less power than any other man would have had if he had received the same appointment; the force and effect of his letters cannot be limited and restrained by his previous acts in his private character, any more than the official authority of a sheriff or any other public officer can be limited and restrained by what he may have done as an individual previous to his election. On his appointment, the administrator becomes vested officially, and for the purposes of the trust, with all such title as his intestate had to the personalty at his death; and he is neither obliged to, nor has he the right, to recognize, validate, and bind the estate by the unauthorized acts which have been done to the prejudice of the estate by any one while the title was in abeyance. The doctrine of executor de son tort is alluded to as having some bearing, but it is a doctrine not permissible in our system. Our law looks to the interest of the estate, and employs the administrator as a mere instrument to guard, defend, and advance that interest. To apply the doctrine of estoppel as between the administrator and one whom, as an individual, he may have dealt with improperly, would be to treat the administrator as more important than the estate, the agent as more important than the principal, the instrument as more to be regarded than the object to accomplish which the instrument is created. In truth, the administrator is merely the representative of the estate: the estate, in his person, is the party to the contracts he makes and the suits he brings; and to make the doctrine of estoppel applicable, it must be shown that the equities it rests upon are equities against the estate. But certainly there is nothing in the fact that a man is appointed administrator, who has previously misconducted himself, which can justly raise against the estate any equities, or which can justly deprive the creditors or next of kin of any of their rights in its assets. We do not deem it necessary to examine this subject in detail, because we regard the previous decisions in Cullen v. O'Hara, 4 Mich. 138, and Morton v. Preston, 18 Mich. 71, as conclusive upon it; and we have only alluded in very general terms to what seem to us the obvious reasons on which those cases rest. The judgment must be affirmed, with costs. NOTE. In Holland v. King, 6 C. B. 727 (1848), it was held, that an option given to the executor or administrator of a deceased partner to succeed to such partner's share, if exercised within three months of his death, was not well exercised by the widow of a deceased partner, who gave notice of her intention to avail of the option within the three months, but did not take out letters of administration until they had expired. In Regina v. Toppin, Car. & M. 545 (1842), upon an indictment for stealing from the body of a dead man goods which had belonged to him, an allegation that they were the property of the bishop of the diocese in which he died was held good. Cf. Wonson v. Wonson, 13 Pick. 402 (1832). . SECTION II. WHAT INTERESTS PASS TO THE EXECUTOR OR ADMINISTRATOR. A. In general. ST. 13 EDW. I. (WESTM. II., 1285) c. 23. Executors from hence forth shall have a writ of accompt, and the same action and process in the same writ as the testator might have had if he had lived. ST. 4 EDW. III. (1330) c. 7. Item, Whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; (2) it is enacted, that the executors in such cases shall have an action against the trespassers, and recover their damages in like manner, as they, whose executors they be, should have had if they were in life.2 ANONYMOUS. COMMON PLEAS AND QUEEN'S BENCH. 1574. [Reported Jenk. 241.] A. B. AND C. are coparceners; they purchase other land than the coparcenary land to them and their heirs; and by indentures they covenant every one with the other respectively for them and their heirs, 1 See, accord., Wiswell v. Wiswell, 22 Mich. 371 (1886). 2 Rights of executors to "have actions of debts, accompts, and of goods carried away," were extended by St. 25 Edw. (1350) c. 5, to executors of executors; and rights "to demand and recover as executors the debts due" to the intestate, were given by St. 31 Edw. III. (1357) c. 11, to administrators. with every one of them and their heirs, that the survivor or survivors of them and their heirs shall convey to the heir or heirs of the others who die first, separately, at the costs of the heir or heirs, an equal part with the survivor or survivors; they purchased the land in Kent; A. and B. die, the heir of A. sues covenant against C. and alleges that he tendered to C. in Kent an assurance to be made of the said purchased land: whereas the sale was made in Kent, and the tender was, in truth, in the county of Middlesex; and the action of covenant was brought in Kent by the heir of A. and issue was joined upon the tender of the assurance, and it was found with the plaintiff: He had judgment, which was affirmed in error. Resolved in this case: 1. That this is a real covenant which goes to the heir of the covenantee. 2. That the plaintiff has his election to bring his action of covenant, either in Kent where the purchase was made, or in Middlesex where the tender was made.1 ELIZABETH Countess of Rutland, and other executors of Edward Earl of Rutland, executor of John Earl of Rutland, against Isabel Countess of Rutland. Action upon the case of trover of divers jewels and other goods to the value of £1,000, and allegeth, that the defendant knowing those goods to appertain to John Earl of Rutland in his lifetime, and after his death to Edward Earl of Rutland, as executor to John, and after his death to the plaintiff, as executor to Edward, executor to John, had converted them to their damage of £1,000. The defendant pleaded not guilty; and found guilty to the damage of £940. It was now moved in arrest of judgment, that this action lies not for an executor upon a trover and conversion in the time of their testator; for it is not within the 4 Edw. 3, c. 7, as a quare impedit and an ejectione firma have been taken to be within the equity thereof. Secondly, because there is not any certain time shown of the conversion, whether it were in the time of the testator or of the executor. As to the first, all the JUSTICES resolved, that an executor may well maintain an action for goods converted in the time of their testator, by the equity of the 4 Edw. 3, c. 7, as well as a quare impedit; and so is the common experience at this day.2 1 The rest of the case, upon the sufficiency of the tender, is omitted; s. c. sub nom. Wotton v. Cooke, Dyer, 337 b. 2 Part only of the case is given. |