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own benefit, which a rightful executor might, children, and the defendant, without admindo." 18 Cyc. 1363.

istering on the estate, but with the concurIn Brown v. Walter, 58 Ala. 310, it was rence of the plaintiff, undertook to pay the held: “Where one has received and used as deferred payments and to support the widow sets of an intestate, under circumstances and minor children, and he failed to make constituting him an executor de son tort, he the third payment, and the land was sold may show, when called to account in equity under a judgment by the vendors; and when by the rightful representative, that there A. advanced to the defendant money to reare no outstanding debts, and that he has deem the land, and the widow and heirs obapplied the assets for the use and benefit of tained an order for the sale of the land to the distributees, as they must have been ap- pay A., who purchased and offered to perplied in due course of administration.” mit the widow and heirs to redeem, and he

In Risk v. Risk, 10 Ky. L. Rep. 566, 9 conveyed the land to defendant, who paid S. W. 712, R., having paid the first instal- the balance of the purchase money, in an acment on land, died, leaving a widow and six Ition by plaintiff for the settlement of the by the rightful representative of the estate, assets by payment of debts of the deceased is not permitted to plead payment of debts not inferior to that of the plaintiff. Ibid. to the value, or that he has given the goods In Hobby v. Ruell, 1 Car: & K. 716, it in satisfaction of the debts, when the ac- appeared that the defendant, sued as execution is by a creditor, such executor may tor de son tort by a creditor, had ordered a plead plene administravit, and give in evi. pair of boots of the deceased and had paid dence the payment of just debts. White him for them in his lifetime, but the boots hall v. Squire, Carth. 104; Glenn v. Smith, bad not been delivered, and the defendant, 2 Gill & J. 493, 20 Am. Dec. 452; Cook v. to get possession of them after the deSanders, 15 Rich. L. 63, 94 Am. Dec. 139; ceased's death, was obliged to pay the jourTurner v. Child, 12 N. C. (1 Dev. L.) 331, neyman the price of making them. It was 17 Am. Dec. 555; Leach v. House, 1 Bail. held that defendant was liable for the price L. 44.

of the boots, but that he was entitled to be As stated in Glenn v. Smith, 2 Gill & J., allowed the sum he paid the journeyman, 493, 20 Am. Dec. 452, as against creditors as that individual had a lien on the boots an executor de son tort is justified in pay. to that amount. ing the debts of the deceased; and if sued It appeared in the same case that at the by a creditor he may plead plene adminis- time of decedent's death a cow and calf travit, and will be allowed all payments were agisted with a certain individual, and made of just debts, to any other creditors that the defendant paid this person for in equal or a superior degree, or in the due their agistment in order to obtain possescourse of administration; though he can- sion of them. It was held that the defend. not in any case retain any part of the ant was not entitled to any allowance in goods of the deceased in satisiaction of a this respect, as the individual had no lien debt due to himself. See, to the same effect, on the cattle for their agistment. Ibid. Cook v. Sanders, 15 Rich. L. 63, 94 Ain. If an executor or administrator, appointDec. 139.

ed in a neighboring state, collects the efBut he cannot defend himself by showing fects of his testator or intestate, and takes that he has paid debts of the deceased to them to another state, and collects debts the amount of what he has received, unless there without lawful administration, he may he pleads plene administravit. Turner v. be sued as an executor de son tort by a Child, 12 X. C. (1 Dev. L.) 331, 17 Am. creditor, and is chargeable with all assets Dec. 555, citing Whitehall v. Squire, Carth. which he has not applied in the due course 104.

of administration, whether received in the An executor de son tort may, after action state of the forum, or originally received brought by a simple contract creditor, pay in the foreign state and brought to the a specialty debt, and plead the payment of state of the forum. Campbell v. Tousey, that debt in bar of action. Oxenham v. 1 7 Cow. 64. Clapp, 2 Barn, & Ad. 309. Patteson, J., To the effect that when a voluntary or a said: “A wrongful and a rightful executor fraudulent donee is proceeded against as only differ in this respect: that the first an executor de son tort-the theory on is to take no benefit by his own wrongful which a bill in equity is maintained against act; as regards other creditors there is no him by one claiming to be a creditor of the difference; an executor de son tort, as well deceased donor or grantor-he may make as a rightful executor, may administer the any defense against the demand with which assets in due course of law, and may, there he is sought to be charged, that the defore, justify the payment of a bond debt cedent, or a rightful representative, could of which he has notice, before a simple con- make, see Means v. Hicks, 65 Ala. 241. tract debt."

If a party who has taken possession of Such executor must plead specially pay. the assets of an estate undertakes to justify ment after action brought. Ibid.

himself for his unlawful intermeddling Such executor, under a plea of plene ad when sued by a creditor, by showing that ministravit, may give in evidence, that be he has applied them to the payment of the fore action brought he had exhausted the debts of the deceased, he does so at his estate of the father, a division of the land, ticular debt not entitled to preference, leavand allotment of dower, held, that the acts ing others unpaid, he cannot claim that he of defendant should be treated as those of a has done what the law required to be done duly appointed administrator from the date with the assets in due course of administraof the father's death; and that he holds the tion, but must be liable as executor de son land in trust for the widow and heirs. tort to the other creditors. But in that case

It is incumbent upon the executor de son the doctrine announced emphasizes the contort to show that he has applied the assets tention that the executor de son tort is enwhich have come into his hands in the same titled to fair treatment if he has acted manner in which they would have been law- justly. The syllabus in that case reads: "If fully applied by a rightful representative. an executor de son tort, when sued by a cred18 Cyc. 1363. Among the authorities cited itor, attempt to justify his unlawful interin support of the doctrine stated is that of meddling with the assets of the deceased by Gay v. Lemle, 32 Miss. 309, holding that, showing that he has applied them to the where it appears that he has paid one par-payment of his debts, he must show that he peril, and must show that he has applied, plea by showing in evidence that before the them in the same manner in which they commencement of the suit he had paid over could have been lawfully applied by the to the rightful executor or administrator rightful executor; and if it appear that he all that was in his hands. Padget v. Priest, has paid one particular debt not entitled 2 T. R. 97, 1 Revised Rep. 440. And in Engto preference, leaving others unpaid, he can- land, when the suit is by a creditor against not claim that he has done what the law an executor de son tort, it is a good defense required to be done with the assets, in a that he has paid the amount of assets come due course of administration, but must be to his hands, to creditors of equal or suliable as an executor de son tort to the perior degree, himself only excepted. Loveother creditors. Gay v. Lemle, 32 Miss. ! lass, Wills, 51; Coulter's Case, 5 Coke, 309. The court said: “The rule is well : 30a ; Wentworth, Exrs. 180. By our statute settled, that an executor de son tort is not of February 3, 1789, § 14 (1) goods, etc., liable beyond the assets which came to his become, in the hands of executors de son hands, and that he is protected in all acts, tort, assets to the amount of double their not for his own benefit, which a rightful value, and we have no doubt that in this executor may do. 1 Williams, Exrs. 154. state, upon plene administravit pleaded, an And in England he could discharge himself executor de son tort might show a recovery by showing payment of debts of the intes- against him by a creditor, or by the righttate in the same or of a superior degree, ful executor administrator, to the

a rightful executor would have been amount of the assets in his hands, and that justified in making such payment. But this would support his plea. A plea of there is no authority and there can be no plene administravit by a rightful executor reason, for holding that he is justified in might, perhaps, be supported by proof that applying the assets to the payment of debts the whole estate had been expended in paywhich the rightful executor would not have ing debts due to the state, debts due for been authorized to pay; and therefore he the last sickness and funeral charges, and a would not have been justifiable in England reasonable allowance by the judge of proin paying the debts of an inferior degree, bate to the widow; these being entitled to in preference to those of a superior degree.” priority of payment, by the statute rela

If an executor de son tort exhausts an tive to insolvent estates. But we are of insolvent estate in the due and orderly opinion that proof that the whole estate had payment of debts entitled to priority and been exhausted in the payment of other is sued by a creditor for a debt of inferior debts would not support such a plea. If, degree to those paid, he may safely stand after paying the claims entitled to priority upon the plea of plene administravit, be- of payment, anything remain, it must be cause the assets have thus been duly ad- shown to have been expended in a distribuministered. But if he has exhausted the tion among all the creditors, in the insolvent assets in the payment of debts not entitled | course, in order to support such a plea. to priority to the plaintiff's, that plea will And we think that an executor de son tort not avail him, because he has not ad- stands on no better ground in this respect ministered the estate in due course of law. than a rightful executor. When an action Bennett v. Ives, 30 Conn. 329.

in is brought against an executor de son tort, the same connection, Winn v. Slaughter, 5 it is, in our opinion, no defense, if the Heisk. 191.

estate be insolvent, that he paid, voluntaBut holding that, if the estate with rily, debts to double the amount he has which an executor de son tort has inter- received. Because he has no right to elect meddled be insolvent, it is no defense, when whom we will pay. A payment upon a colsued by a creditor, that he has paid debts lusive recovery against him would stand to double the amount of the assets which upon the same ground. But when there is he received, the court, in Neal v. Baker, 2 bona fide a recovery against him to double N. H. 477, said: "There seems to be no the amount received, he then pays by order doubt that an executor de son tort may of law and will be discharged. Whether, plead plene administravit, and support the in case of a solvent estate, payment of just



And see,

has applied them in the same manner that,ecutor in a will acts without qualifying, and they would have been lawfully applied by receives proceeds of the sales of lands and the rightful executor; and if it appear that rents, the burden is upon him to account for he has expended the assets in the payment of the same; and if he assumes to pay debts, one particular debt, not being a lien on without having them probated against the them, leaving others unpaid, he will be liable estate, he assumes the burden of producing to the other creditors.” The body of the evidence that would be sufficient to prove opinion fully sustains the syllabus, and re- such claims in the probate court in case of quires only that the executor de son tort objection. “must show that he has applied them (the In Crispin v. Winkleman, 57 Iowa, 523, 10 assets of the estate) in the same manner in V. W. 919, it was held: "One who interwhich they could have been lawfully applied meddles with the estate of a decedent, withby the rightful executor."

out having been appointed administrator, In Holeton v. Thayer, 89 Ill. App. 184, it has no rigiit to pay claims out of the assets was held that, where a person named as ex- I of the estate; and in no case can he escape debts to double the amount received would , supra; and see Tweedy v. Bennett, 31 be a defense to an action brought by a Conn. 276. creditor against an executor de son tort An executor de son tort sued at law as need not now be decided. In the present such by a creditor of the deceased is not alcase it is agreed that the estate was in- lowed to retain for his own debt, and the golvent, and we are of opinion that there rule is the same in equity. And refusing must be judgment for the plaintiff."

to allow such executor to retain in payment The doctrine of the common law in re- of his own debt does not violate the rule gard to the liability of an individual who, that a court will never enforce a penalty. without being appointed executor or taking Baumgartner v. Haas, 68 Md. 32, 11 Atl. letters of administration, intermeddles with 588. The court said: “Now an executor the estate of a deceased person, is recog- de son tort, sued at law as such by a credinized as applicable and operative in Con- tor of the deceased, is not allowed to retain necticut, so far as it is not inconsistent with for his own debt. The current of authorithe general principles and policy of the ties is uniform on this point, and it is law of that state regarding the settlement enough for us to refer to the case of Glenn of estates. Bacon v. Parker, 12 Conn. v. Smith, 2 Gill & J. 493, 20 Am. Dec. 452, 212; Bennett v. Ives, 30 Conn. 329.

where the law is definitely settled in this An executor de son tort has all of the state. It is true that that case, as all the liabilities but none of the privileges of a others within our notice, were cases at law, rightful executor, and therefore cannot re- and it has been very strenuously argued tain his own debt as against the claim of that a different rule should prevail in any other creditor, but he may show that equity. It is insisted that, in refusing to he has exhausted the assets by the pay- allow Gunther to retain any portion of the ment of just debts of the decedent, other property in controversy in payment of his than his own. McMeekin v. Hynes, 80 Ky own debt, a court of equity would be enfor343. To the same effect, see Alexander v. cin a penalty upon him, which a court of Lane, Yelv. 137; Prince v. Rowson, 1 Mod. equity will never do. The rule of the com208; Curtis v. Vernon, 3 T. R. 587, 2 H. mon law, which refuses to allow executors Bl. 18, 1 Revised Rep. 774; Leach v. de son tort to retain for their own debts House, 1 Bail. L. 42; Glenn v. Smith, until the other creditors are paid, is based 2 Gill & J. 493, 20 Am. Dec. 452; Partee v. upon sound public policy. To allow it (2 Bl. Caughran, 9 Yerg. 460; Sharp v. Caldwell, Com. 511) would tend to encourage creditors 7 Humph. 415; Turner v. Child, 12 N. C. to strive who should first take possession of (1 Dev. L.) 331, 17 Am. Dec. 555.

the goods of the deceased, and would allow a An executor de son tort cannot retain for creditor to take advantage of his own wronghis own debt, but, with this exception, he ful act by paying himself first. Such is unmay pay debts, even one to which he is questionably the rule of the common law surety, in the same order in which a right- from time immemorial, Can a court of ful executor is required to pay them. equity annul this rule? A quotation from Kinard v. Young, 2 Rich. Eq. 247.

an eminent American writer (Story) will And in Kinard v. Young, supra, an execu- answer this question: 'For example (1 tor de son tort was entitled to credit for Story, Eq. Jur. § 11), the first proposition, a coffin for his testator, upon the ground that equity will relieve against a general that “all the authorities say that payments rule of law, is neither sanctioned by prinor expenditures which a rightful executor ciple nor by authority. For though it may might lawfully make are good acts of ad- be true that equity has in many cases decidministration in a wrongful executor." ed differently from courts of law, yet it

A wrongful and rightful executor differ, will be found that these cases involved it seems, in this respect only,—that the circumstances to which a court of law first is to take no benefit of his own wrong. could not advert, but which, in point of subful act. As regards the creditors there is stantial justice, were deserving of particular no difference; both may administer the as- consideration, and which a court of equity, sets in due course of law. Bennett v. Ives, proceeding on principles of substantial jusliability for so using the money of the es- It follows that the district court erred in tate, without an affirmative showing that excluding evidence tending to show that the the amounts paid were correct.”

money received from the sale of the property Since the district court has acquired ju- was expended in and about the burial of the risdiction of the parties, and the whole sub- deceased. ject-matter is presented for adjudication, The judgment of the District Court of nothing can be gained by rendering a judg- Dakota County is reversed. ment against the defendant and compelling him to file his claim against the estate, thus Letton and Fawcett, JJ. (concurring unnecessarily increasing the litigation and in result only) : costs. We think that the district court We think the principles announced in should dispose of the whole case before it. Phillips v. Phillips, 87 Me. 324, 32 Atl. 963,

There is no showing that the deceased was and Adams v. Butts, 16 Pick. 343, apply, in any way indebted. The estate is solvent. and hence concur in the result. The defendant is not shown to have injured anyone by reason of what he did. The Sedgwick, J., concurs in the conclusion. claim of no creditor is endangered. tice, felt itself bound to respect.' This is a a creditor by delivering over the effects to bill in. equity, and it has been argued that the rightful executor after the action is when the decree was passed against Gunther, brought. Curtis v. Vernon, 3 T. R. 587, 2 requiring him to account for this property, H. Bl. 18, 1 Revised Rep. 774; Hill v. Curand bring it into court for distribution tis, supra. And see Carmichael v. Caramong the creditors of the deceased, that michael, 10 Jur. 908, 2 Phill. Ch. 101, which Gunther, being a creditor, should participate seems to hold that the wrongful executor in the distribution. If the creditor Haas cannot discharge himself by coming to an had brought suit at law and recovered, the account with the lawful representative. defendant could not certainly have retained The rule in equity, it seems, follows the anything for his own debt. The plaintiff, rule at law; so that if an executor de son if nis debt amounted to the whole value of tort can prove a settled account with the the property, would have taken it all. This rightful representative before suit, that is unquestionably the rule at law. Should is a sufficient answer to a bill in equity an honest and meritorious creditor of the against him for an account. Hill v. Curdeceased be placed in a worse position when tis, supra. he seeks the aid of a court of equity ? Or should a manifest wrongdoer fare better

Suit by distributee, etc. in equity than at law? We think the answer to these propositions must be in the Since § 2441, Georgia Code, debts volunnegative. 10 allow the defendant to come tarily paid by an executor de son tort canin and participate in the division of the not be set off by him against an action by a property recovered from him is practically distributee of the estate for his share of to allow him to retain a share of it for his the property. Bryant v. Helton, 66 Ga. 477. own debt, and thus relieve him from the But in a suit by such distributee against operation of the rule of the common law such an executor de son tort, he can set off that forbids such a retainer."

the widow's year's support. Ibid. Although, under the Georgia Code, ex- In Roggenkamp v. Roggenkamp, 15 C. C. ecutors de son tort can get no credit for A. 600, 32 U. S. App. 453, 68 Fed. 605, any debt voluntarily paid by them, yet, if, which was an action by the heir's guardian in good faith, they have furnished the wid- to recover certain real estate, the court ow her year's support, they may set that said: "Under the common law, one who off. The claim of the widow is not a debt, intermeddles with the personal property but a special provision allowed by law, in of a deceased person, and disposes of it, preference to any liens or debts held by or does any other act of administration of creditors. Barron v. Burney, 38 Ga. 264. the assets without the authority or direcIt, previously

action brought tion of the proper court, or of the will of the against the defendants, as executors de son deceased, thereby constitutes himself an exetort, by creditors, they had paid the money cutor de son tort. He cannot by his wrong.

to the rightful administrator, that ful act acquire any benefit for himself. The would be a good defense, because then they rightful executor or administrator, or any would have applied the money properly. creditor or legatee, may maintain an action Padget v. Priest, 2 T. R. 100, 1 Revised against him for the property of the deceased Rep. 440; Hill v. Curtis, L. R. 1 Eq. 90, 35 which he has taken, and may compel him to L. J. Ch. N. S. 133, 12 Jur. N. S. 4, 13 L. account for its disposition and value; but T. N. S. 584, 14 Week. Rep. 125; Kinard in all acts that are not for his own benefit, v. Young. supra: Anonymous, 1 Salk. 313. and that a lawful executor might do, he is And to this end they may plead plene ad- protected. He cannot be charged beyond ministravit. Kinard v. Young and Anony- the assets which come to his hands, and mous, supra.

against these he may set off the just debts But an executor of his own wrong can- which he has paid. 1 Williams Exrs. pp. not discharge himself from an action by 296, 305, 308; Bacon v. Parker, 12 Conn.




213; Emery v. Berry, 28 N. H. 473, 61 Am. there can be no reason, for holding that he Dec. 622; Bellows v. Goodall, 32 N. H. 97; (an executor de son tort] is justified in apGlenn v. Smith, 2 Gill & J. 493, 20 Am. Dec. plying the assets to the payment of debts 452; Weeks v. Gibbs, 9 Mass. 74; Winn v. which the rightful executor would not have Slaughter, 5 Heisk. 191; Tobey V. Miller, been authorized to pay.' The loose, vague, 54 Me. 480; Olmsted v. Clark, 30 Conn. 108. uncertain testimony here on this point is It is unnecessary to inquire in this case utterly unsatisfactory. The observations of whether or not an intermeddler with the the court in Hardy v. Thomas, 23 Miss. personal estate of a deceased person be. 547, 57 Am. Dec. 152, are to be especially comes an executor de son tort, and liable to noted, the court declaring: 'If a party see account at the suit of a creditor or legatee fit, without authority of law, to intermeddle under the statutes of the state of Nebraska. with an estate, to pay debts, and sell propIt is certain that the appellant, by undertak: erty for that purpose, all he can rightfully ing to administer the estate of his deceased ask is the privilege of proving a claim son without the sanction of the probate against the estate for the sums so paid, and court, made himself liable to account to the demanding payment from the administrator, rightful administrator for the value of ratably with the other creditors.' We do the personal property he obtained from not, of course, mean to be understood as that estate. Consol. Stat. (Neb.) 1891, saying that if the claims were legal charges § 1244. But it would have been a per- against the estate, and have been paid by fect defense to a suit by the adminis. the executors de son tort, they could not trator for such an accounting that the here diminish the recovery by their amount. appellant had paid all the just debts of We call attention merely to the case in the deceased, and that he had exhausted all | 23 Miss., supra, in view of the dealing with the assets he had received from the estate these notes, resting our approval of the in paying these debts. The heir had no

chancellor's action in this respect upon right to or equity in the personal property the total failure of the testimony to show of his father, as against a stranger, superior that any claims alleged to have been paid to those of the lawful administrator. He were such as were legal charges against the alleged in this suit that the appellant had estate.” appropriated the proceeds of the personal It is the well-settled doctrine that an exproperty of the estate to the purchase of the ecutor de son tort of a solvent estate may land he sought to recover. The appellant discharge himself, even against the demand denied this, averred that he had used all of the rightful executor, by proving debts the property of the deceased and some of his paid to the amount of the goods received own to pay the just debts of the deceased, which had belonged to deceased. McConnell and that he paid for this land with his v. McConnell, 94 Ill. 295. own money. The appellant was entitled to So, where a widow took a United States a fair accounting that would determine this government bond of $1,000 belonging to her issue, and find what balance, if any, of the deceased husband estate, and never account. value of the personal property he received, ed for the same, but paid the same on a note remained in his hands after he was credited of $1,500 against the estate, she was not with the payments he made on just debts liable to the heir at law for the amount of of the deceased. He was not liable to be the bond. Ibid. charged with the use of any more property Sharland v. Mildon, 10 Jur. 771, 5 Hare, of the deceased in the purchase of this land | 469, 15 L. J. Ch. N. S. 434, holds that one than the amount of such a balance. We acting as the agent of an executor de son have searched the record in this case in tort in collecting the assets, and knowing vain for the statement of such an account, at the time that his principal is not the or of evidence that an accounting upon this legal personal representative, is himself basis has been had in the court below, and liable as executor de son tort; and that alwe are unwilling to affirm the decree with though he may have duly accounted to his out it.”

principal for the assets which he has reIn Weaver v. Williams, 75 Miss. 945, 23ceived. The bill in this case was ‘against So. 649, which was a proceeding for the the personal representative and the agent partition of certain lands belonging to of the executor de son tort by a party claimthe estate of the decedent, and for the re- | ing under the will of the testator for a gencovery in personam against executors de eral account of his estate. son tort for moneys and notes alleged to have been taken possession of by such execu- Suit by executor de son tort against righttors of the estate, and used for their own

ful representative. benefit, it was said: “The contention that these executors de tort have paid In Ayre v. Ayre, 1 Ch. Cas. 33, “the plaindebts which should have been credited on tiff being the widow of her husband, sued the personal decree is also untenable, for the defendant, who was his executor, to have the obvious reason that the proof utterly allowance of satisfaction for several debts fails to show that the debts which they of the testator's (which she, having pos. claimed to have paid were valid charges sess'd herself of his estate, had paid) the against the estate, -charges such as a right- executor having gotten all the estate out ful executor would have been protected in of her hands. It was much controverted, paying. We have said, in Gay v. Lemle, / whether she should be helped herein? For 32 Miss. 312, "There is no authority, and tho' executor of his own wrong shall be al

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