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purchased, the will was proved; and if on this matter the defendant should be charged as executor of bis own wrong was the question. And on great deliberation judgment was given for the plaintiff. And in this case these points were resolved.
1. When a man dies intestate, and a stranger takes the intestate's goods and uses them, or sells them, in that case it makes him executor of his own wrong. For although the pleading in such case be, that he was never executor, nor ever administered as executor'; and therefore it was objected, that he ought to pay debt or legacy, or do something as executor: yet it was resolved, and well agreed, that when no one takes upon him to be executor nor any hath taken letters of administration there, the using of the goods of the deceased by any one, or the taking of them into his possession, which is the office of an executor or administrator, is a good administration to charge them as executors of their wrong; for those to whom the deceased was indebted in such case have not any other against whom they can have an action for recovery of their debts.
2. When an executor is made, and he proves the will, or takes upon him the charge of the will, and administers in that case, if a stranger takes any of the goods, and, claiming them for his proper goods, uses and disposes of them as his own goods, that doth not make him in construction of law an executor of his wrong, because there is another executor of right whom he may charge, and these goods which are in such case taken out of his possession after that he hath adıninistered, are assets in his hand : but although there be an executor who administers yet if the stranger takes the goods, and claiming to be executor, pays debts, and receives debts, or pays legacies, and intermeddles as executor, there, for such administration as executor, he may be charged as executor of his own wrong, although there be another executor of right; and therewith agreeth 9 E. 4, 13.
3. In the case at bar, when the defendant takes the goods before the rightful executor hath taken upon him, or proved the will, in this case he may be charged as executor of his own wrong, for the rightful executor shall not be charged but with the goods which come to his hands after he takes upon him the charge of the will. Note, reader, these resolutions, and the reason of them, and by them you will better understand your books, which otherwise seem prima facie to disagree. 41 E. 3, 13 b; 50 Ed. 3, 9; 6 H. 4, 3 a; 11 H. 4, 83 b, 84 a ; 13 H. 4, 4 b; 8 H. 6, 35 b; 19 H. 6, 14 b; 21 H. 6, 26 & 27; 32 H. 6, 7 a; 33 H. 6, 21 ; 21 E. 4, 5 a; 20 H. 7, 5 a; 26 H. 8, 7 h, 8 a; 1 Eliz. Drer, 166 ; 9 Eliz. Dyer, 255. And so the gucere in 1 Mariæ Dyer, 105, 203, well resolved.
1 ANONYMOUS, 1 Salk. 313 (1702). — Per Holt, C. J. If H. gets goods of an intes. tate into his hands after administration is actually granted, it does not make him executor of his own wrong; but if he gets the goods into his hands before, though administration he granted afterwards, yet he remains chargeable as a wrongful executor, unless he delivers the goods over to the administrator before the action brought, and then he may
ALEXANDER ». LANE.
[Reported Yelv. 137.] ALEXANDER brought debt on a bond of £40 against Lane as executor of P. The defendant pleaded, that P. in his lifetime was indebted to him in £40 just debt, and that goods to the value of £10 came to the defendant's hands, which he retained towards the satisfaction of his own debt; and averred, that nulla bona plura above goods to the value of £10 came to the defendant's hands to be administered, &c. The plaintiff replied, and showed that the defendant is executor de son tort to P. et quod habet multa alia bona of P. administrand. apud S. in the same county of Norfolk, and concluded, et hoc paratus est verificare, &c. The defendant rejoined, and demanded judgment, if the plaintiff should be received to say, that the defendant is executor de son tort; forasmuch as by the declaration he has affirmed him to be executor testamenti ; and thereupon the plaintiff demurred in law. And as to the matter in law the whole court was with the plaintiff'; for he may well reply, that the defendant is executor de son tort, potwithstanding the declaration ; for there is no other form of declaration, as it is adjudged in Coulter's Case, 5 Rep. fol. 30. But PER TOT. Cur. the whole plea is discontinued; for the defendant having pleaded as to goods to the value of £10, which he retained for a debt, and that he had not plura bona administrand., that is an offer of a good issue; then when the plaintiff replies, that he has plura bona, &c., and concludes et hoc paratus est verificare, it is not good; for he ought to have said, et hoc petit quod inquirat. per patriam ; for now there is a surplusage of goods denied by the defendant, and urged by the plaintiff, which ought to come in issue, but cannot by reason of the ill conclusion. But in the same term between West plaintiff, and Lane defendant, where West demanded but £4 debt against Lane as executor, ut supra; and all the residue of the plea was, ut supra, judgment was given for the plaintiff, because the defendant had confessed goods in his hands to the value of £10, which is more than the debt demanded ; and therefore forasmuch as by judgment in law an executor de son tort cannot retain to pas himself, although the other proceedings in the plea are ill, get all that is out of the case, and judgment shall be given on the defendant's confession, and so it was. Quod nota. Yelverton of counsel pro querente."
plead plene administrarit. Vide 5 Co. 33 b, F. N. B. 44. But if he takes upon him to act as executor, he is chargeable to all events.
But see Hall v. Elliot, Peake, 86, 87 (1791).
One who wrongfully intermeddles after the death of the lawful executor or admin. istrator is an executor de son tort. Cottle v. Aldrich, 4 M. & S. 175 (1815); Williams v. Heales, L. R. 9 C. P. 177 (1874). But see Tomlin v. Beck, T. & R. 438 (1823).
i See Prince v. Rowson, 1 Mod. 208 (1675).
VAUGHAN v. BROWNE.
(Reported 2 Stra. 1106.] The defendant is sued as executor; and pleads a judgment to himself in the life of the deceased, and a retainer ; the plaintiff replies, that he was executor only de son torti and the defendant, by way of plea puis darrein continuance rejoins, that he has since obtained letters of administration. And upon demurrer it was objected, that this is to abate the plaintiff's writ, which was well brought by matter subsequent not depending on any act of the plaintiff's: and that the rejoinder was a departure from the plea. But the Court held, it was well enough ; for the first plea does not say there was a will, and the defendant could not at that time do otherwise than admit an acting as executor. And they said it would be very hard to lay it down, that if a man who sues for administration is opposed, and the cause runs out into any length, that the acting pendente lite should be construed such a wrongful executorship, as can never be purged, so as to give him the benefit of retaining : besides these pleas puis darrein continuance begin with a relicta verificatione of the former; which shows it may be departed from. The defendant had judgment."
CURTIS v. VERNON.
(Reported 3 T. R. 587.] Case on promises by the testator. Pleas, First, Ne unques executor. Secondly, Plene administravit. Thirdly, that Palmer died intestate, and that the defendant never was executor, nor ever possessed any of his goods, save as executor of his own wrong; that after Palmer's death, and before the 14th of May, 1789, administration was granted to his widow, S. Palmer; and that on the 15th of May, 1789, the defendant delivered over to the administratrix all the goods, &c., belonging to the intestate which came to his hands. Fourthly, that the defendant never was executor, &c., save as executor of his own wrong; that administration was granted to S. Palmer (as before) ; that the defendant recovered £3000 on a bond in this court in the
i So Andrero v. Gallison, 15 Mass. 325, n. (1818). But see Whitehead v. Sampson, 1 Freem. 265 (1679).
vered £300tanted to spexecutor of this, that
intestate's lifetime; that no goods or effects of the intestate ever came into the defendant's possession, except goods of the value of £794 13s. 9d., which are not sufficient to satisfy his said debts; and that the administratrix on the 15th of May, 1789, assented to his retaining those goods in satisfaction of his debt.
To the two last pleas there was a general demurrer, and joinder in demurrer.
Wigley, for the demurrer.
LORD KENYON, C. J., said, They had looked into the authorities which were cited on the part of the defendant, but that they did not establish the propositions for which they were adduced. The case in 1 Sid. 76, is reported in a confused manner; but it concludes with saying, “ that an executor de son tort cannot pay himself.” Now that goes the length of deciding the present case. And indeed the cases cited from Freem., Yelv., Moor, Mod., and Strange, all prove the same point, that an executor de son tort cannot retain for his own debt. They also take the distinction between such an executor and an executor de son tort afterwards legalizing his own wrong by taking out letters of administration. The case in Strange shows this matter very clearly ; where the court said it would be extremely hard that, if a person, entitled to administration, is opposed in the ecclesiastical court, and does any acts pendente lite to make himself executor de son tort, those acts should not be purged by his afterwards obtaining letters of administration. And they added that the granting administration legalizes those acts which were tortious at the time. With respect to the first point in this case, the opinion of Lord Chief Justice Holt in Salk. 313, is decisive ; where he says, “ If H. get the goods of an intestate into his hands, and administration be granted afterwards, yet he remains chargeable as a wrongful executor, unless he deliver the goods over to the administrator before the action is brought, and then he may plead plene administravit.” From all the authorities it is clear, first, that an executor de son tort must deliver over the goods of the intestate to the rightful administrator before an action is brought against him; and secondly, that, though he be a creditor of a superior nature, he cannot retain in satisfaction of his own debt. Therefore we are of opinion that both these pleas are bad ; and consequently there must be
Judgment for the plaintiffs.? 1 Judgment was affirmed in the Exchequer Chamber, 2 H. Bl. 18 (1792).
FLEMINGS V. JARRAT.
Nisi PRIUS. 1795.
[Reported 1 Esp. 335.] ASSUMPSIT for goods sold and delivered to the defendants.
Plea of, 1st, Ne unques executor. 20, No assets come to the hands of the defendants.
The case in evidence was, that Peat the deceased, in his lifetime, being the owner of a certain ship, and having occasion for sails for her, they had been furnished by the plaintiff, who was a sail-maker, and they were not paid for at the time of his death ; that after the death of Peat, the defendant had possessed himself of the ship, on which he claimed a lien ; and the object of the action was to charge him for the price of the sails, as executor de son tort.
The delivery and price of the sails was proved.
Mingay, for the defendant, stated his defence to be, that every interference of a person with the effects of a person deceased would not make him executor de son tort, provided it was such interference as was consistent with a legal right of possession, which he claimed ; that as to the possession of the ship on the present occasion, the defendant had been the ship's husband, and had taken possession of the ship by virtue of a bona fide assignment made to him by Peat, the deceased, in his lifetime.
He then gave in evidence the instrument by which the defendant was appointed the ship's husband. He afterwards proved, that the captain, having possessed himself of the ship, in Peat's lifetime, a suit had been instituted in the Admiralty by Peat, at the defendant's expense, to recover her; and in consideration of that and many other engagements, the defendant was then under on account of the ship, and of £250 paid, Peat had by his deed dated 24th September, 1791, assigned the ship to the defendant.
On this evidence, LORD KENYON said, he was of opinion, that the plaintiff had made out a prima facie legal title to the possession as he claimed it, sufficient to exempt him from being charged as executor de son tort.
Erskine, for the plaintiff, insisted that the mere proof of the deed of assignment was not sufficient, as he ought to show a completely legal title. That Lord Hawksbury's Act having made an indorsement of the grand bill of sale necessary, such ought to be shown.
LORD KENYON said, that in a question of the nature of the present, he would not inquire whether the plaintiff had conformed to all the requisites necessary to complete his title ; that if the defendant came to the possession by color of a legal title, though he had not made out