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to satisfy his own debt or legacy (g): or if the wife of the deceased take more apparel than she is entitled to, she will become executrix de son tort (h). So there may be a tort executor of a term for years: as where a man enters upon the land leased to the deceased, and takes possession, claiming the particular estate (i): though with respect to a term of years in reversion there can be no executorship of this nature, because it is incapable of entry (k). And if he that has from the Ordinary letters ad colligendum, sell or dispose of any goods, though otherwise subject to perishing, it makes him executor of his own wrong; even though, by the letters ad colligendum, he be warranted thereunto; for the judge himself may not do so (1).
Again, if a man demands the debts of the deceased, or makes acquittances for them, or receives them (m) he will become executor de son tort. In a modern case, it was held, that if a man's servant sells the goods of the deceased, as well after his death as before, by the directions of the
(9) Godolph. Pt. 2, c. 8, s. 1. Pt. 4, s. 23. In what cases the mere Swinb. Pt. 4, s. 23.
taking possession of the goods of the (h) Stokes v. Porter, Dyer, 166, deceased will or will not create an b. 1 Roll. Abr. 918, Executors, executorship de son tort, see Read's (C. 2), pl. 2. Wentw. Off. Ex. c. case, 5 Co. 33, b. 1 Roll. Ab. 918, 14, p. 325, 14th edition. Godolph. pl. 5. Wentw. Off. Ex. 327, 14th Pt. 2, c. 8, s. 1. Swinb. Pt. 4, edition. Swinb. Pt. 6, s. 22, pl. 2.
Fleier v. Southcot, Dyer, 105, b. (1) Godolph. Pt. 2, c. 8, s. 5. Ibid. 166, b. Garter v. Dee, 1 Freem. Mayor of Norwich v. Johnson, 3 13. Parsons v. Mayesden, ibid. 151. Lev. 35; S. C. 3 Mod. 90. 2 Show. Serle v. Waterworth, 4 M. & W. 9, 457. Comberb. 7. Garth v. Taylor, post, p. 230. Some possession is 1 Freem. 261, and see 2 Prest. on colourable, and still none in law to Convey. p. 319, et seq. Where charge, &c., as in the case of an the entry of the wrong-doer is overseer or supervisor, (see ante, p. general, he is a disseisor of the 212), or one who is made executor fee-simple, and not an executor de by a Will, which is afterwards disson tort : Ibid. See also Bac. Abr. proved by the proving of one later; Executors (B. 3), 1.
Dyer, 166, b.; in which case he (k) Kenrick v. Burgess, Moor. may plead the special matter, sans 126.
ceo that he administered in any (1) Anon. Dyer, 256, a. Wentw. other manner: Ibid. Off. Ex. c. 14, p. 324, 14th edition. (m) Godolph. Pt. 2, c. 8, s. 1. Godolph. Pt. 2, c. 8, s. 1. Swinb. Swinb. Pt. 4, s. 23.
deceased given in his lifetime, and pays the money, arising therefrom, into the hands of his master, this makes the master, as well as the servant, executor de son tort (n). And it seems to be established that the agent of an executor de son tort collecting the assets, with a knowledge that they belong to the testator's estate, and that his principal is not the legal personal representative, may himself be treated as an executor de son tort (o).
So if a man pays the debts of the deceased, or the fees about proving his Will, this will constitute him executor de son tort (P); but it is otherwise if he pays the debts or fees with his own money (9).
Living in the house, and carrying on the trade of the deceased, (a victualler), was held a sufficient intermeddling to make the defendant executor de son tort, notwithstanding his wife (the daughter of the deceased) proved the Will after the action was commenced, and she and her husband were acting together, and were in the house before the death of the testator (r).
Likewise, if a man sue as executor, or if an action be brought against him as executor, and he pleads in that character, this will make him executor de son tort (s).
With respect to fraud, by the statute 43 Eliz. c. 8, after reciting that “forasmuch as it is often put in ure to the defrauding of creditors, that such persons as are to have the administration of the goods of others dying intestate committed unto them, if they require it, will not accept the same, but suffer or procure the administration to be granted to some stranger of mean estate, and not of kin to the intestate, from whom themselves or others by their means do take deeds of gifts and authorities by letter of attorney, whereby they obtain the state of the intestate into their
(n) Padget v. Priest, 2 Term. Rep. 97.
(Sharland v, Mildon, 5 Hare, 468.
() Godolph. Pt. 2, c. 8, s. 1. Swinb. Pt. 4, s. 23.
(9) Ibid. Went. Off. Ex. 326, 14th edition.
(r) Hooper Summersett. Wightw. 16.
(8) Godolph. Pt. 2, c. 8, s. 1. Com. Dig. Administrator (C. 1).
hands, and yet stand not subject to pay any debts owing by the same intestate, and so the creditors for lack of know. ledge of the place of habitation of the administrator, cannot arrest him nor sue him ; and if they fortune to find him out, yet for lack of ability in him to satisfy of his own goods the value of that he hath conveyed away of the intestate's goods, or released of his debts by way of wasting, the creditors cannot have or recover their just and due debts,” it is enacted “that every person and persons that hereafter shall obtain, receive, and have any goods or debts of any person dying intestate, or a release or other discharge of any debt or duty that belonged to the intestate upon any fraud as is aforesaid, or without such valuable consideration as shall amount to the value of the same goods or debts, or near thereabouts, (except it be in or towards satisfaction of some just and principal debt of the value of the same goods or debts to him owing by the intestate, at the time of his decease), shall be charged and chargeable as executor of his own wrong (t); and so far only as such goods and debts coming to his hands, or whereof he is released or discharged by such administrator will satisfy, deducting nevertheless to and for himself allowance of all just, due, and principal debts upon good consideration, without fraud, owing to him by the intestate at the time of his decease and of all other payments made by him which lawful executors or administrators may and ought to have and pay by the laws and statutes of this realm."
So, if in his lifetime the deceased made a deed of gift, or bill of sale, of all his goods and chattels to another, in fraud of his creditors, and the donee after the death of the donor disposes of these goods and chattels, by these means he shall be executor in his own wrong (u).
When the Will is proved, or administration granted, and
(t) See Godolph. Pt. 2, c. 8, s. 2, Swinb. Pt. 4, s. 23. Kitchen v. Dixon, Goldsb. 116, pl. 12. 2 H. Bl. 26, n. (b).
(u) Godolph. Pt. 2, c. 8, s. 1.
1 Sid. 31, pl. 9. 1 Roll. Abr. 549. (C. 1.) pl. 3. Stamford's case, 2 Leon. 223. Hawes v. Leader, Cro. Jac. 271; S. C. Yelv. 197. Edwards v. Harben, 2 T. R. 587.
another person then intermeddles with the goods, this shall not make him executor de son tort, by construction of law, because there is another personal representative of right, against whom the creditors can bring their actions; and such a wrongful intermeddler is liable to be sued as a trespasser (x). But, though there be a lawful executor or administrator, yet if any other take the goods claiming them as executor, or pays debts or legacies, or intermeddles as executor, in this case, because of such express claiming to be executor, he may be charged as executor of his own wrong,
, although there were another executor of right (y).
But there are many acts which a stranger may perform What acts do without incurring the hazard of being involved in such an mau executor executorship; such as locking up the goods for preserva
de son tort. tion (2), directing the funeral, in a manner suitable to the estate which is left, and defraying the expenses of such funeral himself, or out of the deceased's effects (a), making
not make a
(c) Anonymous, 1 Salk. 313. Godolph. Pt. 2, c. 8, s. 3: but one who gets the goods of the testator into his hands may be sued as executor de son tort, although afterwards and before the writ brought, administration be legally granted to another: Ibid. Kellow v. Westcombe, 1 Freem. 122 ; S. C. 3 Keb. 202.
(y) Read's case, 5 Co. 34, a. Went. Off. Ex. 326, 14th edition. Godolph. Pt. 2, s. 1. Swinb. Pt. 4, s. 23. Com. Dig. Administrator, (C. 1). However this was denied at N. P. in Hall v. Elliott, Peake, N. P. C. 87, by Lord Kenyon, who said it was impossible there should be a lawful executor, and an executor de son tort, at the same time. Observations to the same effect were also made by Sir T. Plumer, M.R., in Tomlin v. Beck, 1 Turn. & R. 438, where his Honor held, that a person who was permitted by an executor to nossess himself of part
of the assets of a testator, and who,
(z) Godolph. Pt. 2, c. 8, s. 6. So
(a) Dyer, 166, b. in margin. Fitzh. Executors, pl. 24, 1 Roll. Abr. 918, Exccutors, (C. 2) pl. 4. Wentw. Off. Ex. c. 14, p. 323, 14th edition. Godolph. Pt. 2, c. 8, s. 6. Harrison v. Rowley, 4 Ves. 216. So where a party receives a debt due to the estate of a person deceased, for the purpose of providing the funeral, ho will not thereby become chargeable as executor de son tort; unless he receive a greater sum than is reasonable for that purpose, regard
an inventory of his property (b), feeding his cattle (e), repair
( ing his houses, or providing necessaries for his children (d): for these are offices merely of kindness and charity (e).
In a modern case (f), the widow of a hairdresser, one Joseph Waterworth, who died in October, 1836, continued to reside in his house and keep open the shop, (through which was the entrance to the house) but there was no proof of any articles being sold : In December, she received notice of a bond debt of 100l. due from him, and had his goods valued : On January 3rd, 1837, on the application of a creditor, to whom Joseph Waterworth, at the time of his death, owed 241. for goods, she gave a promissory note for that amount, payable to the creditor twelve months after date : In March, she took out administration : It was held, in an action against her on the promissory note, that this was not evidence to charge her as executrix de son tort (g).
being had to the estate and condition of the deceased; which is a question for the jury: Camden v. Fletcher, 4 Mees. & W. 378.
(6) Godolph. Pt. 2, c. 8, s. 6. (c) Godolph. Pt. 2, c. 8, s. 8. (d) Godolph. Pt. 2, c. 8. s. 6.
(e) Swinb. Pt. 2, s. 23. Bac. Abr. tit. Executors, (B. 3,) 1. Toller, 40.
(f) Serle v. Waterworth, 4 Mees. & W. 9.
(9) The defendant had pleaded that one Joseph Waterworth, before and at the time of his death, was indebted to the plaintiff ‘in 241. for goods sold, which sum was due to the plaintiff at the time of the making of the note in the declaration mentioned; that the plaintiff, after the death of Joseph, applied to the defendant for payment; whereupon in compliance with his request, the defendant, after the death of Joseph, for and in respect of the debt so remaining due to the plaintiff as aforesaid,
and for no other consideration whatever, made and delivered the note to the plaintiff; and that Joseph died intestate, and that at the time of the making and delivery of the note, no administration had been granted of his effects, nor was there any executor of his estate, nor any person liable for the debt so remaining due to the plaintiff as aforesaid; and the plea then averred that there never was any consideration for the said note except as aforesaid : The Barons of the Exchequer held, after verdict for the defendant, that the plea was no answer to the declaration, inasmuch as it did not negative every consideration for the promissory note, for that it did not allege there were no assets; and the effect of giving the note was, at all events, to preclude the plaintiff, for a year, from suing the defendant, in case she should afterwards take out administration, which was a sufficient consideration for the giving of the