testamentary or of administration. Within this period, however, many acts must be done if such property is to be suitably preserved. Goods must be stored, animals fed and cared for, and perishable property must be disposed of. As by Gen. Sts. c. 94, § 1, the widow, or next of kin, or both, as the Probate Court shall see fit, are entitled to the administration, no person can be more suitable than the widow to take such temporary charge of the property. We are to consider whether one who aids her in this, acting simply as her servant and agent, becomes liable for the value of the goods which he thus assists her in caring for, and, when the property is perishable, in disposing of.

It was formerly held, with great strictness, that no one could interfere in the least with the estate of a deceased person. This was carried to such an extent, that a wife has been held liable as executrix de son tort for milking the cow of her deceased husband. Gerret v. Carpenter, 2 Dyer, 166, note. But it is now determined that there are many acts which do not make one liable, such as locking up the goods of the deceased for preservation, directing the funeral and paying the expenses thereof, feeding his cattle, &c., for these are necessary acts of kindness and of charity. 1 Williams on Executors (4th Am. ed.) 214, and cases there cited. Camden v. Fletcher, 4 M. & W. 378.

In Padget v. Priest, 2 T. R. 97, Mr. Justice Buller intimates that if the defendant had acted merely as the servant of another, he should not be held liable. In Brown v. Sullivan, 22 Ind. 359, it was held that taking possession of property at the request of the widow of the deceased, for the purpose of taking care of it, did not make one liable as executor de son tort. In Givens v. Higgins, 4 McCord, 286, it was held that one acting as agent for the widow, and not knowing in what character she was acting, would be considered as her agent merely, and not as exercising such control over the funds of the estate as to make himself liable. In this case the defendant had, by direction of the widow, transferred certain property of the deceased in payment of one of his debts. In Magner v. Ryan, 19 Missouri, 196, it was held that a person who had, by direction of the widow, sold certain goods and paid over to her the proceeds, was not liable as executor de son tort, and that no one was liable as such for acts in reference to the administration of an estate, which he had done merely as the servant of another.

Both these last cases go much further than the present case, and perhaps further than we should be willing to go. The rules against intermeddling with the estates of deceased persons are important, as the interval of time between the decease and the appointment of an administrator affords opportunities of which evil disposed or even intrusive and officious persons should not be allowed to take advantage, by interfering with the administration of the person who may thereafter be appointed. When, however, one can show (and this is all that it is requisite in order to sustain the ruling of the presiding judge) that he has acted in good faith, at the request of the party entitled to administration,

in doing an act in disposing of perishable property apparently necessary for the purpose of having its proceeds reach those entitled to them, and has paid over the proceeds to the party at whose request he has thus acted, he is not responsible for a wrongful conversion of the property. Exceptions overruled.

NOTE. Where there is no dispute as to the facts, the question whether one is executor de son tort is for the court, not the jury. Padget v. Priest, 2 T. R. 97 (1787). A widow paying out her husband's money in support of the family "before any certain knowledge of his death" is not an executrix de son tort. Brown v. Benight, 3 Blatchf. 39 (1832). Cf. also Brown v. Leavitt, 26 N. H. 493 (1853); 1 Woerner, Amer. Law of Adm. § 198.

SECTION IV.

GRANT OF ADMINISTRATION.

ST. 13 EDW. I. (WESTM. II., 1285) c. 19. - Whereas after the death of a person dying intestate, which is bounden to some other for debt, the goods come to the ordinary to be disposed; (2) the ordinary from henceforth shall be bound to answer the debts as far forth as the goods of the dead will extend, in such sort as the executors of the same party should have been bounden, if he had made a testament.

ST. 31 EDW. III. (1357) c. 11.-Item, it is accorded and assented, that in case where a man dieth intestate, the ordinaries shall depute the next and most lawful friends of the dead person intestate to administer his goods; (2) which deputies shall have an action to demand and recover as executors the debts due to the said person intestate in the king's court, for to administer and dispend for the soul of the dead; (3) and shall answer also in the king's court to other to whom the said dead person was holden and bound, in the same manner as executors shall answer. (4) And they shall be accountable to the ordinaries, as executors be in the case of testament, as well of the time past as of the time to come.

...

ST. 21 HEN. VIII. (1529) c. 5, §§ 3, 4. — § 3 (6). And in case any person die intestate, or that the executors named in any such testament refuse to prove the said testament, then the said ordinary, or other person or persons having authority to take probate of testaments, as is abovesaid, shall grant the administration of the goods of the testator, or person deceased, to the widow of the same person deceased, or to the next of his kin, or to both, as by the discretion of the same ordinary shall be thought good, taking surety of him or them, to whom shall be made such commission, for the true administration of the goods, chattels, and debts, which he or they shall be so authorized to

minister; (7) And in case where divers persons claim the administration as next of kin, which be equal in degree of kindred to the testator or person deceased, and where any person only desireth the administration as next of kin, where indeed divers persons be in equality of kindred, as is aforesaid, that in every such case the ordinary to be at his election and liberty to accept any one or mo making request, where divers do require the administration.

§ 4. Or where but one or more of them, and not all being in equality of degree, do make request, then the ordinary to admit the widow, and him or them only making request, or any one of them at his pleasure. . .

...

ST. 29 CAR. II. c. 3, § 25 (1676). — And for the explaining one Act of this present Parliament, intituled, An Act for the better settling of intestates' estates [22 & 23 Car. II. c. 10 (1670)]. (2) Be it declared by the authority aforesaid, that neither the said Act, nor anything therein contained, shall be construed to extend to the estates of feme coverts that shall die intestate, but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same, as they might have done before the making of the said Act.

JONES v. ROE.

KING'S BENCH. 1628.

[Reported W. Jones, 175.]

In an appeal on a commission of delegates granted to JONES, WHITELOCKE, CROKE, and YELVERTON, Justices, and DOCTOR STEWARD, DOCTOR POPE, and others, the case was this, Whether the administration of the wife's goods ought to be granted and committed to the husband de mero jure or not. And JONES, WHITELOCKE, and YELVERTON were of opinion that it ought (absente CROKE), the two doctors contra. And the reasons of the justices were as follows: Before the Statute of 31 Edw. III., the ordinary had power only to meddle with the goods in possession of a man intestate, and had nothing to do with debts or choses in action, nor could he release any debt nor sue for it, but if the debtor would voluntarily pay to the ordinary, then he could receive. it, and distribute it as well as the other goods of the testator in pios usus, quod vide in Greshold's Case, Plowd. Comm. and 12 Hen. VII. 22, and all the books.

Before the said Statute, it seems that the ordinary had nothing to do with the goods or debts of a feme covert (unless where she was executrix to another, and the goods or debts not administered), for the goods in possession of the wife were the husband's by the marriage, and

the wife had nothing in them; but of the choses in action the husband during the coverture could release them if he wished, but if the wife before recovery died, the husband could not sue for them, nor the ordinary have to do with them, but the debtor would have the advantage of it. But the course in such a case to prevent this was, to make an executor, which the wife could do with the assent of the husband, but not without his assent; and she could make her husband executor, and he by this means, as executor of his wife, could recover the debts. 39 Hen. VI. 27 and 51; 22 Hen. VII. 22; 26 Edw. III. 71; 6 Edw. II., Fitz. Executor, 109; 4 Hen. VI. 31, 32; 5 Edw. II., Fitz. Devise, 24; and 28 Hen. VIII. c. 9, Stat. Hiberniæ.

The Statute of 31 Edw. III. gives power to the ordinary to commit administration to the next and most lawful friends of the intestate, who had power to dispose of the goods pro salute animæ, and there is no nearer and more lawful friend to the wife, than the husband, and he when the wife dies is the one who takes care for the funeral and other things pertaining to it, and so the administration ought to be committed to him. And this power given to the ordinary ought to be strictly pursued and not to be granted at his discretion; and the Statute of 22 Hen. VIII. does not extend to this case, for there where the husband died intestate, the widow or the next of kin would be joined in one; but if the wife was executrix and died intestate, there the ordinary could commit it to the next friends of the first testator. And for the main point it is so resolved in Ognell's Case, 4 Co.; and on all the said reasons, they were of opinion as aforesaid.1

1 s. c. sub nom. Johns v. Rowe, Cro. Car. 106.

"Where the wife dies, the husband is to have the administration, being the only true and lawful next of kin by the Statute of Edw. III. St. 1, c. 11.". - Fortre v. Fortre, (B. R.) 1 Show. 351 (1692).

"Besides that, the description of next of kin of the wife can in no respect apply to the husband. He is entitled to the personal property of his wife jure mariti: her personal property vests in him by the marriage. At the death of the wife, if it is necessary for him to have an administration to enable him to get in her personal property, the administration granted to him is granted to him as husband; and when you look at the Statutes, there is no law, that gives the husband a right by force of the Statute to administer to his wife. The husband's right is supposed in all the Statutes. The Statute of 21 Hen. VIII. c. 5, which directs who shall have administration, takes no notice of the husband: they are to grant it to the widow or the next of kin, or both. That Statute therefore does not take the widow to be the next of kin. It takes no notice of the widower; for the law gives it to him; and where it was necessary for him to have the authority of the ecclesiastical court to enable him to obtain her personal property, he had a right to it. The Statute of Frauds has a clause, that the Statute of Distributions shall not prejudice the right of the husband; under an apprehension, that his right might be considered to be affected by that Statute. The husband is not of kin to the wife, nor she to him. The Statute gives administration to the widow. She is not next of kin, but takes as widow."- Per LORD LOUGHBOROUGH, C., in Watt v. Watt, 3 Ves. Jr. 244, 246, 247 (1796).

YOUNG v. PEIRCE.

COURT OF DELEGATES. 1689.

[Reported 1 Freem. 496.]

UPON an appeal to the delegates, the case was, that Henry Peirce died intestate, leaving issue Jo. Peirce and Anne Peirce; his personal estate being valued at about £3,500. Anne Peirce agreed to take £1,500 for her share; and thereupon agreed, that Jo. Peirce should take administration, and released her right to the personal estate. Jo. Peirce paid the £1,500 and dies, and makes Young his executor, and devises to him all his personal estate, there being £1,000 out upon bond of Henry Peirce's estate. The question was, whether Young, the executor of the son, or Anne, the daughter, who was since married to Mr. Webbe, should have administration? And Dr. Raynes, the judge in the Prerogative Court, gave it to Young; whereupon Mr. Webbe and his wife appealed; and the delegates of the common law were POWELL, GREGORY and TURTON; and the civilians were LITTLETON and NEWTON, &c.

And they affirmed the sentence in the Prerogative Court; because they said, that Young, as executor of Jo. Peirce, was in equity entitled to all benefit of the personal estate of H. P. by reason of the agreement; and it was like Isted's Case, of an executor dying intestate that was a residuary legatee, administration shall be committed to him; and one Henson's Case was cited, where a will is made, and no executor appointed, administration shall be committed to the residuary legatee.1

1 The reporter's observations are omitted.

"The reason that 21 H. 8 requires that administration should be granted to the next of kin was, upon the presumption, that the intestate intended to prefer him: but now the presumption is here taken away, the residuum being disposed of to another; and to what purpose should the next of kin have it, when no benefit can accrue to him by it? And 't is reasonable that he should have the management of the estate, who is to have what remains of it after the debts and legacies paid. And the averment, that there is no residuum, is not material; for being once out of the Statute, upon construction of the words of the will, there is nothing ex post facto can bring it within it. And there are certain administrations which have been always ruled to be out of the Statute, as administrations during minority, and pendente lite, which need not be granted to the next of kin, and granting it to the husband comes not within the words of the Statute." Thomas v. Butler (B. R.) 1 Vent. 217, 219 (1672).

Cf. 2 Hag. Ecc. App. 150-157.