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that the property was sold with the consent, the action; that all the charges made by the of the nephew and a son of the deceased, or defendant were reasonable and just; and at least the son ratified the sale; that the there seems to be no controversy concerning amount realized from the sale was the full the fact that defendant Sawyer sold the value of the property; and the defendant property and paid the funeral expenses with sought to set off his expenses against the the proceeds. One purpose of an adminissum received by him for the sale of the prop- trator is to take charge of the property beerty. The proposed evidence was rejected, longing to the estate. He becomes the means and the court directed the jury to return a by which the property belonging to the esverdict against the defendants for the tate is applied to the payment of debts, if amount that the defendant Sawyer realized there are any, and the surplus remaining is from the sale of the property. The verdict distributed among the heirs. The statute in and judgment rendered were for $499.72. this case seems to contemplate that those For the rejection of the evidence so proffered of the relatives who are near the deceased and the giving of the peremptory instruc- are charged with the duty of taking care of tion, the defendants assign error.

the body and burying it. If the defendant It is claimed by the defendants that the Sawyer carried out the wishes of the relaadministrator is estopped from prosecuting 'tives who were there, it would appear that in taking upon himself to act in behalf of, that he had sold the goods in payment of the estate were honorable, but it would be debts. At common law, an administrator productive of infinite confusion in the set- or executor might sell goods at private sale, tlement of the estates of deceased persons and hence it was held, if the rightful adminif the acts of unauthorized agents were to istrator brought trover against the execube recognized as valid; more especially in tor de son tort, he thereby admitted his the courts of common pleas, who have no possession of the goods to be lawful, and original jurisdiction in the settlement of if the executor de son tort showed a sale of estates."

the goods in payment of debts, that was a In an action of trover brought by the distribution of them in accordance with the rightful administrator, an executor de son law, and negatived a conversion. But it tort will not be permitted to give in evi. I would seem, where a sale even by a rightful dence in mitigation of damages payments of administrator of this kind would be void, debts to the value of goods still in his a sale by an executor de son tort could not possession. Nor will he be permitted to re- be otherwise than illegal and void; and tain them in satisfaction of his own debt. therefore would amount to a conversion. Hardy v. Thomas, 23 Miss. 544, 57 Am. Any other rule than this would enable an Dec. 152. The court said: “It is true it is executor de son tort to convert the whole laid down in some of the elementary writers, estate to the payment of a single creditor, that an executor de son tort, in an action and in case the estate proved insolvent, of trover brought against him by the right. would enable such creditor to obtain payful administrator, cannot plead payment of ment of his debt to the exclusion of all debts, etc., to the value, etc., or that he hath other creditors. The impolicy of such a rule given the goods in satisfaction of the debts, is manifest. If a party see fit, without etc., yet that he may, upon the general is authority of law, to intermeddle with an essue pleaded, recover such payments in dam- tate to pay debts, and sell property for that ages, and if they amount to the full value, purpose, all he can rightfully ask is the he may nonsuit the plaintiff. Bull. N. P. privilege of proving a claim against the 48. But the rule is also laid down that in estate for the sums so paid, and demandtrover, by a rightful administrator against ing payment from the administrator ratably an executor de son tort, he could not give with the other creditors.” in evidence, in mitigation of damages, pay- “Though an executor de son tort pay ment of debts to the value of the goods debts duly, with all the assets that come still in his possession, but only such as were into his hands, yet the rightful executor sold. Ibid; Lomax, Exrs. 363, 364. Nor | shall maintain trespass against him; but could he retain in satisfaction of his own he may give such payment in mitigation of debt, because he would not be permitted to damages; yet the right of the action and profit by his own tortious acts. Lomax, verdict shall go against him.” Anonymous, Exrs. 365. The proof in this case showed 12 Mod. 441. that the defendant was still in possession In Reagan v. Long, 21 Ind. 264, an action of the goods, and had not parted with them in the nature of trespass by the adminisin payment of debts, and he could not, tratrix to recover the value of assets of the therefore, prevent a recovery by showing estate which defendant had converted to payment of debts to their value, upon the his own use, or disposed of, it was held that, most favorable rule before laid down. But conceding defendant to have been executor it may well be questioned whether, under de son tort, he should have been allowed, in our statutes prohibiting administrators to reduction of damages, the amount he proved sell without an order of the probate court, he had not converted to his own use, but and declaring a sale void without such an to the use of the plaintiff in her fiduciary order, an executor de son tort could give in character, being that in which she sued. evidence, in mitigation of damages, the fact In such an action, the defendant, under the other relatives would have no reason to It is altogether probable that when Sawcomplain. As the administrator represents yer sold the property he thought he was authe creditors and the heirs, and is only a thorized to do so by $ 110, chap. 18, art. 1, trustee, it would seem that he is estopped Comp. Stat. 1909: “When any valuable perfrom maintaining an action against the de- sonal property, money, or papers are found fendant Sawyer and his bcndsmen for doing upon or near the body upon which an inquest that which Sawyer was requested to do, and is held, the coroner shall take charge of the which he actually did, in taking charge of same and deliver the same to those entitled the body of the deceased and burying it. In to its care or possession; but if not claimed, Dame, Probate & Administration, $ 231, it or if the same shall be necessary to defray is said: “All courts generally hold that the expenses of the burial, the coroner shall, personal representatives may pay the same after giving ten days' notice of the time and (funeral claims] directly, without their be place of sale, sell such property, and after ing exhibited.” If this be true with respect deducting coroner's fees and funeral exto personal representatives, it should be true penses, deposit the proceeds thereof, and the of the coroner, who is requested by the per- money and papers so found, with the county sonal representatives to discharge the duties treasurer, taking his receipt therefor, there which are a natural burden upon them. to remain subject to the order of the legal the general denial of the complaint, may expenses, debts of the deceased, or other give evidence generally tending to disprove charges actually paid by him as the rightful plaintiff's right to recover or to damages. executor or administrator would have to Ibid.

pay.' That is, he is permitted to retain to An executor de son tort, when sued by the the extent indicated. The word “retain' rightful representative, is entitled to be al- was used to protect the defendant, whatever lowed for amounts paid by him to the may be the form of the action when soundproper uses of the estate, as the payment of ing in damages, by enabling him to retain debts, etc. Leach v. Prebster, 35 Ind. 419. what, if not paid by him, the administrator And see Dorsett v. Frith, 25 Ga. 537.

or executor would have been compelled to But this can only be allowed where there pay. Nor is this provision materially difare sufficient assets to pay all the debts of ferent in its spirit from the common law. the deceased; for otherwise one creditor The executor is entitled to deduct reasonwould be paid in full, and others nothing able funeral expenses from the assets that If there be a deficiency of assets, he should come into his hands. Yardley v. Arnold, be allowed only the proportionate share of 2 Dowl. N. S. 311, 10 Mees. & W. 141, Car. the debts which he paid. Leach v. Prebster, & M. 434. Where the rightful executor or supra.

administrator sues the executor de son tort, But see De la Guerra v. Packard, 17 Cal. if the action ‘be trover for the goods of the 183, where it is stated that if the estate deceased, the defendant,' observes Buchanan, be insolvent, it is no answer to an action Ch. J., in Glenn v. Smith, 2 Gill & J. 493, to recover the assets that he has paid debts 20 Am. Dec. 452, 'cannot plead payment of equal to or exceeding their value. And see debts to the value, or that he has given the also supra, this section, M'Carthy v. Dono- goods in satisfaction of the debts. But, on van, 13 Ir. C. L. Rep. 195.

the general issue pleaded, he may give in Buller, J., said (obiter dictum) in Padget evidence such payments, and they will be v. Priest, 2 T. R. 100: “The courts have recouped in damages, if they be such as the gone thus far, that if an action be brought plaintiff would have been bound to make, or, by a rightful administrator against an exec- in the language of some of the books, made utor de son tort, whatever may have been in due course of administration. Whitehall disposed of in the course of administration, v. Squire, Carth. 104; Bull. N. P. 48: 2 Bl. as by paying debts, etc., shall be allowed to Com. 507; Mountford v. Gibson, and Parker him in damages.” And see Graysbrook v. v. Kett, supra. This recoupment is allowed Fox, 1 Plowd. 275; Mountford v. Gibson, when the debts are just and there is no 4 East, 441, 1 Smith, 129; Parker v. Kett, deficiency of assets." 12 Mod. 466.

And Pettengill v. Abbott, 167 Mass. 307, In Tobey v. Miller, 54 Me. 480, which was | 45 N. E. 748, says that if the widow was an an action of trover by the rightful admin- executor in her own wrong, “she might be istrator of an intestate's estate to recover allowed to retain funeral expenses actually the value of the goods and effects of the paid by her.” estate taken by an executor de son tort, it But sec Walton v. Hall, 66 Vt. 455, 29 was held that the defendant could not in Atl. 803, following Shaw v. Hallihan, 46 Vt. that form of action file an account in set-off. 389, 14 Am. Rep. 628, and refusing an alBut holding that under the statute about lowance to the estate of a widow for funeral to be referred to, the defendant might re expenses of her husband and cost of gravetain for the necessary funeral expenses paid stone over his grave, incurred by her where by him, the court said: "When an execu- she became an executor de son tort by intor in his own wrong is sued, it is provided | termeddling with his estate in other reby Rev. Stat. 1857, chap. 64, § 32, that ‘he spects. shall not be allowed to retain any part of Generally as to liability of decedent's the goods or effects, except for such funeral estate for funeral expenses, see notes to


representatives of the deceased, if claimed , quoted justified the conduct of the coroner. within five years thereafter, or if not The same is justifiable upon other grounds. claimed within that time, to vest in the We think that if the defendant Sawyer was school fund of the county.” He was brought requested by the nephew, Bert Reed, to take face to face with the problem of giving the charge of the body and to prepare it for body of the deceased decent and immeuiate burial, and that he did so because of such Christian burial. The sale of the property request, and that he sold the property for its would furnish the means of paying the very full and fair value, which is not questioned, necessary expenses of the funeral. He sold and used the money which he received there. it, got the money, and used it. The dead for in payment of the necessary funeral exman seems to have been decently and prop- penses, then that he is equitably entitled to erly buried according to Christian rites. pay therefor, and he is further equitably The defendant is equitably entitled to his entitled to set off the money so paid out by pay for it, and it is not quite rigut that the him against the plaintiff's claim for the plaintiff should have judgment against him. value of the property sold. The same is We do not intend to hold that the section true if the matter was ratified and adjusted Fogg v. Holbrook, 33 L.R.A. 660, and pelled to pay them back to the respondents Golden Gate Undertaking Co. v. Taylor, 52 reimbursement of the advancements. L.R.A. (N.S.) 1152.

There is no reason for any such process, In Layfield v. Layfield, 7 Sim. 172, 4 which could result in benefit to no one, and L. J. Ch. N. S. 2, where payments were made would result in loss to the respondents." in the course of the bill for an accounting, Even if the executor de son tort is himby persons without taking administration, I self a creditor of the decedent, he cannot, to one who, in the course of the cause, be- | when called to account by the rightful repcame the administrator of the estate, such resentative, apply any part of the assets payments were not allowed.

to the payment of his own debt. Glenn v. An executor de son tort, when sued in Smith, 2 Gill & J. 493, 20 Am. Dec. 452; equity by the rightful representative, can Baumgartner v. Haas, 68 Md. 32, 11 Atl. show that there are no debts outstanding | 588; Leach v. House, 1 Bail. L. 42; Sharp v. against the intestate, and that he has ap- Caldwell, 7 Humph. 415; Partee 1. Caughplied the assets for the use and benefit of ran, 9 Yerg. 460; Hardy v. Thomas, 23 the distributees, as they must have been ap- Miss. 544, 57 Am. Dec. 152; Brown v. Walplied if he had been the rightful represen- ter, 58 Ala. 310; Alexander v. Lane, Yelv. tative. Brown v. Walter, 58 Ala. 310. The 137; Prince v. Rowson, 1 Mod. 208; Curtis court said: “While an executor de son tort v. Vernon, 3 T. R. 587, 2 H. Bl. 18, 1 Recannot, by his wrongful acts, acquire any vised Rep. 774; Elworthy v. Sandford, 3 benefit, he is protected in all acts, not for Hurlst & C. 330, 34 L. J. Exch. N. S. 42, 10 his own benefit, which the rightful repre- L. T. N. S. 654, 12 Week. Rep. 1008. sentative may do; and it may be laid down, Though he be a creditor of a superior as a general rule, that all his lawful acts nature, an executor de son tort cannot reare good, affording him full protection. He tain in satisfaction of his own debt. Curtis could not at common law, as the rightful v. Vernon, 3 T. R. 587, 2 H. Bl. 18, 1 Rerepresentative could, retain for his own vised Rep. 774. debt; but this exception rested on the policy In Leach v. House, 1 Bail. L. 42, the of preventing a race between creditors, to court said: "In Curtis v. Vernon, supra, obtain possession of the assets, without Lord Kenyon says that though an executor taking administration. It would have en- de son tort be a creditor of superior nature, abled him to derive an advantage from his it is clear from all the authorities that he own wrongful acts. 4 Bacon, Abr. 31-34; 1 cannot retain for his own debt. And such Lomax, Exrs. 177-185. There being no is conceded to be the rule at law; but it debts, no necessity for a rightful admin: is said that the rule is otherwise in equity, istration, except to make distribution, if and the jurisdiction of a justice of the the executor de son tort has applied the as- peace being equitable, as well as legal, it sets to the benefit of the distributees, in ought to have been allowed here. No case equity, he should be protected. The right has been cited in support of this position, ful administration is an unnecessary and nor have I been able to lay my hand on any expensive ceremony, from which no good one in which it has been allowed. In 2 can result. Vanderveer v. Alston, 16 Ala. Fonbl. Eq. 240, the general rule is laid down 494. If the distributees had, in the present that an executor de son tort cannot retain, case, as they might have done, sought from and the reasons on which it rests preclude the defendants an account of the assets, it the idea that a different rule prevails in will not be doubted the defendants could equity. Any intermeddling with the goods have retained for the advancements made in of a deceased person without lawful authoritheir maintenance and education. The ap-ty is, as before observed, a wrong,-a trespellant, there being no creditors, is in equity pass,-for which an action lies at the suit but a trustee for the distributees. If he of him who has the legal right of possession; received the assets from the respondents, and the right to retain is wholly inconsisthe would be compelled to hand them over to ent with this remedy. The right to retain the distributees, and they would be com- would be the leading, if not the only, motive between the defendant Sawyer and the son, that case Richard Smith was employed to of the deceased, Earnest Reed. We do not receive the rents of the deceased in his lifeundertake to say what, if any, steps should time, and after his death continued to rehave been taken before the county court ceive the rents due to the deceased. No towards proving these claims, because that other representative of the deceased appearquestion is not before us.

ing, Smith paid various debts due from the "The true representative is bound by those deceased. Among other things, he paid the acts of an executor de son tori which are defendants, who were bankers of the delawful and such as the true representative ceased. A considerable time after payment would be bound to perform in the due administration was granted to the plaintiff, course of administration.” 18 Cyc. 1361. who brought the action. The court held, Among the authorities cited is Thompson v. under the facts, "that the rule to enter a Harding, 2 El. & Bl. 630, 22 L. J. Q. B. N. S. verdict for the plaintiff ought to be dis448, 18 Jur. 58, 1 Week. Rep. 468, holding charged.” that a proper payment to a creditor of the In Outlaw v. Farmer, 71 N. C. 31, John estate will bind the true representative. In Farmer gave his promise in writing to pay to such intermeddling; and if it were al., ful representative might have been comlowed, the administration of the estate of pelled to pay, he would not be allowed to one who died indebted would be according show the same in mitigation of damages in to the laws of force, and not of reason. It an action of trover, instituted by such execuwould lead directly and inevitably to a tor or administrator. In thus compelling contest between the creditors for the pos- him to account with only the rightful repsession of the goods of the deceased, and resentative, the statute does not purport the rights of all being equal, the strongest or undertake to deprive him of any propwould bear off the spoil. The law has er or legitimate defense. The title of exprescribed the order in which debts are to be ecutor de son tort may be repudiated, but paid and estates administered, and it is but the justice of the law will remain, to disjust that he who attempts by force or tinguish between acts which are beneficial fraud to divert the assets from their legiti- and those which are injurious to an esmate channel should be compelled to fore- tate.” go the advantages which he has acquired This language is quoted with approval in by his own wrong. It is not impossible Slate v. Henkle, 45 Or. 430, 78 Pac. 325; that, under very peculiar circumstances, and see also to the same effect, Merrill v. a retainer may have been allowed in the Comstock, 154 Wis. 434, 143 N. W. 313. courts of equity. Those courts exercise a The acts of the wrongdoer complained very latitudinary discretion in cases con- of, it seems, must be treated with reference sisting of circumstances which are not redu-to their beneficial or injurious character. cible to any rule; but if such cases do exist, If debts paid by him are debts which the they will rather support than impugn the rightful representative would be bound to general rule.”

pay in the due course of administration, Discussing the effect of the Oregon stat- they create an equity against the estate; ute amending the common-law rule, and they are not injurious, but must be conof the right of an executor de son tort to sidered as beneficial, making it competent be credited with payments which he may for the defendant to give such payments have made that are tantamount to a due in evidence, which operate by way of readministration of a decedent's estate, the coupment. Rutherford v. Thompson, supra. court, in Rutherford v. Thompson, 14 Or. This right of the wrongdoer or executor 236, 12 Pac. 382, said: “The person who de son tort to recoup in damages for disintermeddles with the goods of the deceased bursements or payments made in the due is now only responsible to answer in an ac- course of administration when sued in an tion to the rightful executor or adminis. action for conversion by the legal representtrator. And whether we consider the inative of the decedent affords him an adtermeddler as an executor de son tort, or equate remedy at law, so that he cannot as a wrongdoer, the liability to respond to maintain a cross suit in equity to recover the rightful executor or administrator is the value of his expenditures.

Slate v. the same, and unaffected, and the law un- Henkle, supra. changed. The fiction of office may be gone, An executor de son tort, or a wrongdoer, but the unauthorized act of intermeddling is not entitled on an accounting to an allowremains, to be dealt with judicially, accordance for sums paid to a surety company, ing to the principles of right and justice, and for appraisers' and justices' fees for as applied by the law in such cases. Now, services that could never have been any from the fact that the intermeddler with benefit to the estate. Ibid. the goods of a deceased is only liable to re- Neither is he entitled to an allowance spond to the rightful executor or adminis- for attorneys' fees unless the service rentrator for the value of the goods, etc., it dered was in preserving the estate, resultby no means follows, if what he did was of ing in a benefit thereto. Ibid. benefit, and not injury, to the estate, as the And a sum claimed by such executor de payment of funeral expenses, or debts of son tort, or wrongdoer, stands on the same the deceased, or charges such as the right. I footing. Ibid.

John Lewis or James Parker, agents, by sale by their agent conferred upon the puragreement with the heirs of Anna Herring, chaser a title which the courts will protect. deceased, the sum of $125.50. Lewis and The bond given for the property was given Parker were appointed agents by the heirs on a valuable consideration and is valid, of Anna Herring. As the agents of such both as to the principal and as to the sureheirs, they had charge of the entire benefi-ties." The court further said: “Where the cial interest in the estate. In a suit by the equitable as well as legal rights of parties duly appointed administrator of the estate

are administered, the bond sued on will be against the makers of the promise, it was held: “administration was only the techni- upheld as valid against the defendant, and cal form of passing the legal estate from the plaintiffs are entitled to judgment the intestate to the distributees. Without

thereon.” administration they had the potential do

“Although an executor de son tort cannot minion over the estate, and could dispose of by his own wrongful act acquire any benefit, it by sale, gift, or testament. Therefore a l yet he is protected in all acts, not for his

And on an accounting by such executor, cumstances of the case. The decedent's de son tort or wrongdoer, he is not en- widow had been made sole devisee and aptitled to any sum as administrator's fees, pointed executrix.

For some

reason she and if the fees have been paid they must be failed to qualify. The defendant undertook returned, such executor being liable to the to assist her in the management and dispode jure executor therefor. Ibid.

sition of the estate. The payments were “The statute 43 Eliz. chap. 8,

made with that view. The duly appointed enacted that all and every person and per- administrator received money enough to sons that hereafter shall obtain, receive and pay all the proven debts. If a recovery had have any goods or debts of any person dying been allowed from the defendant it would intestate, or release or other discharge, have been solely for the benefit of the devior any debt or duty that belonged to the see, who did not appear to be in a condition intestate,

shall be charged and to complain. While the result was favorchargeable as executor of his own wrong; able to the defendant in that case, the genand so far only as all such goods and debts eral doctrine of the opinion is against the coming to his hands, or whereof he is re- defendant in this. Besides in no case could leased or discharged by such administrator, an intermeddler be allowed to escape liabilwill satisfy deducting nevertheless to and ity for using money of the estate in the payfor himself allowance

of all other ment of its debts, without an affirmative payments made by him, which lawful execu- showing that the amounts paid were correct. tors or administrators may and ought to In this case we find no evidence of the value have and pay by the laws and statutes of of the services paid for, but merely of the this realm. 4 Bacon, Abr. Bouvier's Notes, amounts paid." And see Elder v. Littler, 28." Slate v. Henkle, supra; Winn v. 15 Iowa, 65. Slaughter, 5 Heisk. 191.

In Tuite v. Tuite, 72 N. J. Eq. 740, 66 Atl. The enactment of this statute probably 1090, it was held that under the statute of gave rise to the rule adopted by courts that that state (title, “Executors & Administrajust debts of a decedent which have been tors," Gen. Stat. vol. 2, p. 1426, $ 3), a widpaid by an executor de son tort according to ow, who, without taking out administration their legal priority may be set off against thereon, took possession of the personal the amount of damages for which his inter- property possessed by her deceased husband meddling has made him liable. Slate v. at the time of his death, was chargeable with Henkle, supra.

the value of all such property, less all payIn Crispin v. Winkleman, 57 Iowa, 523, ments made which a lawful administrator 10 N. W. 919, where the action was by the might have been credited with under the laws administratrix against one who had in- of that state. The widow was not proceeded termeddled with decedent's estate, but who against in this case as an executrix de son is not therein expressly termed an executor tort, and no personal representative of the de son tort, the court said: “But the de- decedent was a party thereto, and the form fendant paid two bills for medical services of the bill was not such as to raise the rendered the decedent, and these payments proper issues and secure appropriate relief were not allowed. The defendant in his from her as such. But the court was willing argument complains of the action of the to permit the complainants, if they so decourt in this respect. In our opinion there sired, to move to amend their bill so as to are two grounds upon either of which seek an accounting from her for the properthe ruling can be sustained. It was not the ty of the deceased which came into her defendant's right to use the money of the hands at his death, making a representative estate in paying its debts. Portman v. of his estate a party, if they should be so Klemish, 54 Iowa, 198, 6 N. W. 265. It is advised. Bill in this case was to decree true that in that case the defendant was not a trust of certain lands held by defendant charged with money so used; but the court for the benefit of the complainants. expressly disapproved the acts of the defendant, and sustained the ruling of the court

Suit by creditor. below, only by reason of the peculiar cir- While an executor de son tort, when sued

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