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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, 1 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 Ind. 342; Power's Estate, 14 Phila. 289;

county. Joseph Scott, the respondPeebles'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

Executor and administrator

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 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 beto 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."

our practice as an Mr. Woerner in his American acts pending ap- executor de son 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 another

Executor and may

for his own benefit) administrator Damages-tortcompensate him for which a rightful ex- extent of lia

bility for interthe damage SUS- ecutor might have meddling with

estate. 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

as

measure.

ervation.

(- Nev. -, 221 Pac. 241.) had turned over to the appellant the ceased, or charges such as the rightestate upon her qualification, the es- ful representative might have been tate would have been liable for all compelled to pay, he would not be necessary expenses incurred in its allowed to show the same in mitigapreservation and protection, plus tion of damages in an action of troher commission. Why should it not ver, institued by such executor or

pay the expenses in- administrator. In thus compelling - liability for expenses of pres- curred by the re- him to account with only the rightspondent in

pre- ful representative, the statute does serving it? In what way has it been not purport or undertake to deprive damaged? Counsel says appellant

Counsel says appellant him of any proper or legitimate demight have handled the estate at fense. The title of executor de son much greater saving than did the tort may be repudiated, but the jusrespondent. Perhaps she might; tice of the law will remain, to disbut, on the other hand, she might tinguish between acts which are have incurred much greater expense

beneficial and those which are inin handling it. But this is pure

jurious to an estate." speculation. The lower court found But it is said that the lower court that the indebtedness so incurred gave credit for certain items of exwas necessary and proper for the pense incurred by the respondent protection of the estate, and, as ap- which he had not paid and hence pellant did not bring up the evi- should not have been allowed. It is dence, the presumption is conclusive said that not an authority can be in favor of the findings so made. found holding that such items Our attention is directed to the should be allowed.

should be allowed. It can as well case of Slate v. Henkle, 45 Or. 430, be said that not one has been cited 78 Pac. 325, as sustaining the con- holding the contrary. We think, clusion we have reached. It re- however, the case of Slate v. Henkle, viewed the authorities as to an supra, is contrary to appellant's executor de son tort, and qotes ap- contention. It was there held that provingly as follows from Ruther- the item of $100 claimed by Slate ford v. Thompson, 14 Or. 236, 12 should have been allowed if the seryPac. 382: "The person who inter- ices were rendered in preserving or meddles with the goods of the de- caring for the property of the esceased is now only responsible to tate. In any event the estate got answer in an action to the rightful the benefit of the articles enumeratexecutor or administrator. And, ed, and should pay for them. There whether we consider the intermed. is no more reason dler as an executor de son tort, or for allowing credit -allowance for

unpaid bills. as a wrongdoer, the liability to re- for things actually spond to the rightful executor or ad- paid for and which benefited the esministrator is the same, and unaf- tate, than for those which were not fected, and the law unchanged. The paid for, if they benefited the esfiction of offense may be gone, but tate. the unauthorized act of intermed- Another suggestion is made by dling remains, to be dealt with judi- counsel for appellant, but it goes cially, according to the principles of rather to a matter of policy than to right and justice, as applied by the a question of law, and we decline to law in such cases. Now, from the fact consider it. that the intermeddler with the goods Perceiving no prejudicial error, of a deceased is only liable to respond the order and judgment are afto the rightful executor or adminis- firmed. trator for the value of the goods, etc.,

Ducker, Ch. J., and Sanders, J., it by no means follows, if what he

concur. did was of benefit and not injury to the estate, as the payment of fu- A petition for rehearing having neral expenses, or debts of the de- been filed, Coleman, J., on April 14, 1924, handed down the following pose of both of them upon the additional opinion: (- Nev. — ground that a point urged for the 224 Pac. 807):

first time in a petition for a rehearA lengthy petition for a rehearing ing will not be considered. Nelson has been filed. It urges the granting

v. Smith, 42 Nev. 302, 176 Pac. 261,

178 Pac. 625. of a rehearing upon several grounds.

a So far as the argument advanced

As to the ground which is anwhich goes to support the contention tagonistic to the original theory, it that we erred in our ruling upon

may be said it is a well-established the matters presented and consid

rule that, when a case has been tried ered originally, we wish simply to

upon one theory, a party will not be say that we are entirely satisfied permitted to shift his position and with our former disposition of them.

urge a theory diametrically opposed We may observe that the petition

to the one originally relied upon. urges two additional theories why

The petition for rehearing is de

nied. we should grant a rehearing, one of which is antagonistic to that urged Ducker, Ch. J., and Sanders, J., in the original brief. We could dis- concur.

ANNOTATION.

Allowance for expenses and disbursements by executor or administrator after

revocation of his letters.

This annotation is not concerned holds that he is entitled to an allow. with any question of the right of an ance from the estate for all expenses administrator or executor whose let- incurred by him for its preservation, ters have been revoked to claim an al- since he is entitled to protection for all lowance for any expense incurred or acts which a rightful executor might disbursement made on behalf of the have done, which are not for his beneestate prior to the revocation of his fit. letters, but is limited to disbursements But in Bradley's Estate (1875) 32 or expenses in that respect which are Phila. Leg. Int. (Pa.) 257, it was made thereafter.

stated that an estate would clearly not While it is stated that an executor be liable for professional services de son tort has no inherent right to to persons appointed administrators pay claims out of the assets of the es- which were rendered after the letters tate, he is held to be entitled to reim- of administration were revoked. The bursement for an expenditure which statement appears, however, to be but he has made out of his own moneys for a dictum, as it did not appear at what the relief of the estate, or for sums date the services were rendered, and paid out while acting in the capacity the court in fact allowed a part of the of an executor de son tort, not for his claim against the estate for the servown benefit, if he can affirmatively ices. In this case the father of the show that the sums paid were correct. decedent, who was entitled to adminis11 R. C. L. p. 463. The reported case ter upon the estate, had, after some (RE PEDROLI, ante, 841), proceeding delay caused by defendants, who had

' upon the assumption for the purposes secured letters of administration, of the case, without deciding the point, obtained a decree removing the dethat there can be no such thing under fendants as administrators and apthe local practice as an executor de pointing himself instead; the defendson tort, and that consequently the re- ants had resisted his action in this spondent, after the revocation of his respect, as well as attempts on his letters, must be held liable as a wrong. part to settle the estate after his apdoer for all assets of the estate which pointment; and the court held that come into his hands, nevertheless the defendants were properly charge

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