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the eye of the law capable to act for another as trustee until twenty-one. See further, 3 Atk. 604. .
2. During the absence of Executor beyond Sea.-When the executor, or next of kin, is out of the realm, administration may be granted during his absence (13). In an action by a person to whom such administration is granted, the absence of the executor in parts beyond the seas ought to be averred in the declaration. By stat. 38 Geo. 3. c. 87. s. 1. “If at the expiration of twelve calendar months after the death of the testator, the executor, to whom probate has been granted, is residing out of the jurisdiction of the king's courts, the ecclesiastical court, which has granted the probate, may, upon the application of any creditor, next of kin, or legatee, grounded on affidavitt, grant a special administration to such creditor, &c. for the purpose of being made a party to a bill in equity, to be exhibited against him and to carry the decree into effect, and no further, or otherwise. And by s. 4. the court of equity, in which the suit shall be depending, may appoint any person to collect the debts due to the estate, and give discharges for the same. But, by s. 5. if the executor, capable of acting as such, shall return to, and reside within the jurisdiction of any of the king's courts, pending such suit, such executor shall be made party to such suit; and the costs incurred by granting such administration, and by proceeding in such suit against such administrator, shall be paid by such person, or out of such fund, as the court shall direct.” The plaintiff, having taken out letters of administration", according to the form prescribed by the preceding statute, and having been appointed by order of the Court of Chancery, in a suit instituted against him, to collect the debts of the deceased, brought an action to recover a debt due to the testator; the defendant pleaded, that on a day prior to the commencement of the action, the executor, to whom probate of the will had been granted, died. On demurrer, the plea was holden bad
t See form in second section. u See form in third section.
* Taynton v. Hannay, 3 Bos. & Pul. 26.
(13) In Clare v. Hedges, (said in 1 Lutw. 342. to have been adjudged in E. T. 3 W. and M. B. R.) it was holden, that such administration was grantable by law; and the case was put of the next of kin being in parts beyond the seas, in which case the debt due to the intestate might be lost, if such an administration could not be granted.
by Rooke and Chambre, Js. (Alvanley, C. J. dissentiente,) on the ground, that the authority of the special administration continued, until the appointment of a new representative, notwithstanding the death of the executor. Mr. J. Chambre observedy, that although this act was made for very beneficial purposes, yet many of its provisions had been framed with a very short-sighted view of legal consequences.
3 Pendente lite, or pending Litigation.—When a suit is commenced in the Ecclesiastical Court touching the validity of a willz or right of administration, an administration may be granted pending the suit, and the person to whom it is granted, may bring actions to recover debts due to the deceased averring that the suit is still depending; and such administrator may be sued, inasmuch as he is for the time complete administratora.
IV. Of an Executor de son Tort.
An executor de son tort is a person who, without any authority derived from the deceased or ordinary, does such acts as belong to the office of an executor or administrator. As to the acts which will render a person liable as executor de son tort it will be observed: 1st. In the case of intestacy, if a stranger takes the goods of the intestate, and uses them, or sells b them, this will make such stranger an executor de son tort. 2ndly. In the case of a willd, and a regular appointment of an executor, who proves the will; if a stranger takes the goods, and, claiming to be executor, pays debts, &c. and intermeddles as executor, he may for such express administration, as executor, be charged as an executor de son tort, although there is another executor of right. But if, after the executor has proved the will, and administered, a stranger takes any of the goods, and, claiming them as his own, uses and disposes of them accordingly, this will not make him in construction of law an executor de son tort; because there is a rightful executor, who may be charged with these goods so taken from his possession, as assets, and to whom the stranger will be answerable in trespass for taking the goods. 3dly. In the case of a will, if a stranger takes the goods before the rightful executor has proved the will or taken upon him the execution thereof, the stranger may be charged as an executor de son tort; for the rightful executor shall not be charged with any goods except those which came to his hands after he had taken upon him the charge of the will. If a creditor takes an absolute bill of sale of the goods of his debtore, but agrees to leave them in his possession for a limited time, and in the mean time the debtor dies, whereupon the creditor sells the goods, he thereby becomes an executor de son tort. The slightest acts have been deemed sufficient to constitute an executor de son tort (14); as where a widow milked her late husband's cows, she was adjudged to be an executrix de son tort. So, living in the house and carrying on the trade of the deceased 8 (a victualler). But a single act of wrong in taking the goods of the intestate, though it may
y 3 Bos. & Pul. 33.
a Agreed in Impe v. Pitt, 2 Show. 69. 2 Wollaston y. Walker, 'Str. 917. 2 P. b Read's case, 5 Rep. 33. b.
Wms. 567. S. C. recognised by Lord c 2 T. R. 97.
be sufficient to make the party an executor de son tort, with respect to creditors who may choose to sue him in that character, yet will not give him any right to retain them as against the lawful administrator. In trover for a quantity of iron, it appeared that the goods in question had been originally sold by the defendant to the intestate; that 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 were stated to have been done by the widow, to shew that she had before taken up herself to act as executrix. It was holden, that the plaintiff, as rightful administrator, was entitled to recover the value of his goods.
A. had pledged goods to B. for a debt, B. died, and the parish officers took the goods, and gave them to J., the penter who made B.'s coffin, on condition of his paying B.'s rent and the funeral expenses: it was holden', that by taking these goods, the parish officers became executors de son tort; and that if they sold the goods to J., they would be liable to A. in trover, because such a sale was so inconsistent with the bailment, as to revest the right of possession in A. A person e Edwards v. Harben, 2 T. R. 587. h Mountford v. Gibson, 4 East, 441. f Dyer, 166. b. in marg.
i Samuel v. Morris, 6 C. & P. 620. g Hooper v. Summerset, Wightw. 16. Alderson, J.
(14) The jury are to determine whether the acts are sufficiently proved; but the question, whether executor de son tort, or not, is a conclusion of law. 2 T. R. 99.
who possesses himself of the effects of the deceasedk, under the authority, and as agent for, the rightful executor, cannot be charged as an executor de son tort. The plaintiff having received a horse belonging to the intestate!, from the defendant, in remuneration of services performed at the request of the defendant, about the funeral of the intestate, afterwards administered to the intestate, and brought trover against the defendant for the value of the horse, so received by himself before he became administrator. It was holden, by Dolben and Eyres, Js. that the plaintiff, being a particeps criminis in the very act he complained of, should not be permitted to recover upon it against the person with whom he had colluded. But Holt, C. J. was of a different opinion, conceiving that in this case if a stranger, or third person, had taken out letters of administration, an action might have been maintained against the defendant by such an administrator for the recovery of the horse ; and here the plaintiff was a third person; for being administrator, he sued, and would recover, in the right of the intestate. An act done by a person as executor de son tort, will not bindm him after he becomes rightful administrator. An executor de son tort must be declared against as a rightful executor". See further on the subject of executor de son tort under sect. ix. post. tit. Pleadings, and of the right of retaining.
V. Of the Disposition of the Estate of the Deceased, and
of the Order in which such Disposition ought to be made.
The order of payment, which ought to be observed by executors and administrators in the disposition of the estate of the deceased, is as follows: 1. Funeral charges (15),
* Hall v. Elliot, Peake's N. P. C. 86.
294. Skin. 274, 3 Mod. 276. S, C.
m Doe d. Hornby v. Glenn, 1 Ad. and
Ell. 49. 3 Nev, & M. 637. n Yelv. 137.
(15) In strictness, no funeral expenses are allowed against a cre. ditor, except for the coffin, ringing the bell, parson, clerk, and bearer's fee ; but not for the pall or ornaments. Per Holt, C. J. in Shelly's case, Salk. 296. The usual method is to allow £5. Bull. N. P. 143. This sum was allowed by Lord Hardwicke, C. J. in
expenses of probate, or taking out letters of administration, 2. Debts due to the king, (16), by record (17), or specialty (18). 3. Forfeiture for not burying in woollenP; debts due to the post-office, not exceeding £59; debts due from an overseer of the poor, by virtue of his officer (19). 4. Debts by mortgages; by judgments in the Court of King's Bench, Common Pleas, and Exchequer, doggetted (20) according to
o 1 Rol. Abr. 926. (S) pl. 1. Dr. and q Stat. 9 Ann. c. 10. s. 30. Stud. Dial. 2. c. 10.
r Stat. 17 G. 2. c, 38, s. 3. p Stat. 30 Car. 2. c. 3. s. 4.
s Symmes v. Symonds, 1 Bro. P.C. 66.
Smith v. Davis, Middlesex Sittings after M. T. 10 G. 2. MSS. As against a creditor, the rule of law is, that no more shall be allowed for funeral expenses, than is necessary; in considering what is necessary, regard must be had to the degree and condition in life of the party, Hancock v. Podmore, 1 B. & Ad. 260, in which case £79 was holden to be too large a sum as against a creditor for the funeral expenses of a' captain in the army on halfpay. See further on this point, Edwards v. Edwards, 4 Tyr. 444. 2 Cr. & M. 612. An executor who gives no order for the funeral, is liable only to the extent of the expenses suitable to the rank and circumstances of testator. Brice v. Wilson, 3 Nev. and M. 512. But if there are assets, the allowance shall be according to the estate and degree of the deceased. In Stagg v. Punter, 3 Atk. 119. the testator having desired to be buried at a church thirty miles distant, and it not being clear that there would be a deficiency, Lord Hardwicke, C. allowed £60 for funeral expenses.
So in Ofley v. Offley, Prec. Ch. 26. £600 were allowed in respect of the testator's quality, and his having been buried in his owu country.
(16) The king, by his prerogative, shall be preferred by executors in satisfaction of his debt before any other. 2 Inst. 32.
(17) Fines and amerciaments, in the king's courts of record, are debts of record. Went. Off. Exec. ch. 12.
(18) By stat. 33 H. 8. c. 39, it is enacted, “ that all obligations and specialties for any cause concerning the king shall be taken domino regi, and shall be of the same force and effect as a statute staple."
(19) By stat. 17 G. 2. c. 38. s. 3. executors of overseer shall pay, out of his assets, all monies due received by virtue of office, before any of his own debts are satisfied. A similar provision is contained in stat. 4 & 5 W. 4. c. 40. s. 12. respecting executors of persons intrusted with the monies or effects of friendly societies.
(20) At common law, executors and administrators were bound at their peril to take conusance of debts of the testator upon record *. Hence to an action on a judgment recovered against testator or in
* Littleton v. Hibbins, Cro. Eliz. 793.