IV. Of an Executor de son Tort (15). 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 (16). 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 them, this will make such stranger an executor de son tort. 2dly. In the case of a will, and a regular appointment of an executor, who proves the will; if a stranger takes the Y Read's case, 5 Rep. 33. b. a 5 Rep. 34. a. now to be controverted. How they came first to be allowed may be a question; yet this is certain, that nothing can be affirmed of those administrations in respect of convenience or inconvenience, which may not as justly be attributed to an administration pendente lite. This administration gives no sort of property, but is only a kind of trust, and the adininistrator himself accountable to the executor, in case the will be proved, or to the absolute administrator, if it should be rejected." Per Raymond, C. J. Page and Probyn, Js.; Lee, J. was of the same opinion for allowing the administration; but the ground of his opinion seemed to be this, that it did not appear to the court that there was any will, and therefore he thought the case was stronger in this than in either of the other limited administrations; because in them a will plainly appears, but the execution thereof is suspended through the disability of the executor. In this, perhaps, there may not be any will, and then what injury can be done to the supposed executor? The case of Frederick v. Hook, Carth. 153. having been cited, in which a distinction is taken between administrations pendente lite concerning a will, and administrations pendente lite concerning the right of administration, and the latter only are said to be good, but the former void; the court observed, that there was not any judgment in Frederick v. Hook, the parties having compromised the dispute. Wollaston v. Walker, MSS. (15) Upon this subject, see Toller's Law of Executors, B. 1. ch. 2. s. 2. (16) "The bare possession of goods shall not make a man executor of his own wrong, unless he undertakes to do some acts which an executor only can lawfully do as to release the debts of the testator, &c." Per Vaughan, J. C. B. in Garter v. Dee, Trin. 1681. Freem, 13. 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 debtor', 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 (17); as where a widow milked her late husband's cows, she was adjudged to be an executrix de son tort. But a single act of wrong in taking the goods of the intestate, though it may be sufficient to make the party an executor de son tort, with respect to creditors who may chuse to sue him in that character, yet will not give him any right to retain them as against the lawful adminis trator. 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 b Edwards v. Harben, 2 T. R. 587. c Dyer, 166. b. in marg. d Mountford v. Gibson, 4 East, 441. (17) 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. T. R. 99. been done by the widow, to shew that she had before taken upon herself to act as executrix. It was holden, that the plaintiff, as rightful administrator, was entitled to recover the value of the goods. A person who possesses himself of the effects of the deceased, 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 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: e Hall v. Elliot, Peake's N. P. C. 86. VOL. II. f Whitehall v. Squire, Carth. 103, Salk. 1. Funeral charges (18), expenses of probate, or taking out letters of administration". 2. Debts due to the king (19), by record (20), or specialty (21). 3. Forfeiture for not burying in woollen; debts due to the post-office, not exceeding 5/.*; debts due from an overseer of the poor, by virtue of his office'. 4. Debts by mortgage"; by judgments in the Court of King's Bench, Common Pleas, and Exchequer, doggeted (22) according to the directions of stat. 4 & 5 W. & M. c. 30; by judgment in other courts of record; by decrees in courts of equity"; (23) according to their respective priorities. 5. Recognisances at common law; statutes merchant and staple; and recognisances in the nature of statutes staple, pursuant to stat. 23 H. 8. c. 6. (24). 6. Arrears of rent due at the death of the testator or intestate, either on a parol lease (25) or lease by deed (26); debts by specialty, as bonds (27); damages upon covenants broken (28), &c. 7. Debts by simple contract, as bills of exchange (29), promissory notes, &c. 8. Legacies, &c. h1 Roll. Ab. 926. (S) pl. 1. Dr. & Stud. Dial. 2. c. 10. i Stat. 30 Car. 2. c. 3. s. 4. k Stat. 9 Ann, c. 10. s. 30. 1 Stat. 7 G. 2. c. 39. s. 3. m Symmes v. Symonds, 1 Bro. P. C. 66. n Searle v. Lane, 2 Vern. 88. 0 4 Rep. 59 b. 60 a. 1 Rol. Abr. 925. 5 Rep. 28 b. (18) In strictness no funeral expenses are allowed against a creditor except for the coffin, ringing the bell, parson, clerk, and bearers' fee; but not for the pall or ornaments. Per Holt, C. J. in Shelley's case, Salk. 296. The usual method is to allow 51. Bull. N. P. 143. This sum was allowed by Lord Hardwicke, C. J. in Smith v. Davis, Middlesex Sittings after M. T. 10 G. 2. MSS. 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 30 miles distant, and it not being clear that there would be a deficiency, Lord Hardwicke, C. allowed 601. for funeral expenses. So in Offley v. Offley, Prec. Ch. 26. 600l. were allowed in respect of the testator's quality, and his having been buried in his own country. (19) See the notes from (19) to (29) in the following pages. (19) The king, by his prerogative, shall be preferred by execu tors in satisfaction of his debt before any other, 2 Inst. 32, (20) Fines and amerciaments, in the king's courts of record, are debts of record. Went. Off. Exec. ch. 12. (21) 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." (22) At common law, executors and administrators were bound at their peril to take conusance of debts of the testator upon re cord*. Hence to an action on a judgment recovered against testator or intestate, executors or administrators could not plead, that they had exhausted the assets in payment of debts of an inferior nature without notice of the judgment. To obviate the mischiefs to which personal representatives were liable, from the difficulty of finding such judgments, the stat, 4 & 5 W. & M. c. 20. s. 2. directs," that the proper officers of the courts of common pleas, king's bench, and exchequer, shall make a dogget of all judgments entered in the respective courts." The mode in which the dogget is to be made, is detailed in the second section; and by s. 3. "judgments not doggeted as the second section directs, shall not have any preference against executors and administrators in the administration of their testator's or intestate's estates," The construction which has been put on this section is, that judgments not doggeted are thereby placed on a level with simple contract debts. Hickey v. Hayter, 6 T. R. 384. Hence, to an action on a simple contract debt of testator or intestate, the personal representative cannot plead an outstanding judgment recovered against testator or intestate, in C. B., B. R., or Exchequer, if it has not been doggeted as the statute directs. Steele v. Rorke, 1 Bos, & Pul. 307. If a judgment be satisfied, or only kept on foot to injure other creditors, or if there be any defeasance of the judgment yet in force, then the judgment will not avail to keep off other creditors from their debts. Went, Off. Exor. c. 12. Between one judgment and another, precedency or priority of time is not material, but he who first sueth the executor must be preferred, and before execution sued, it is at the election of the executor to pay whom he will first. Went. Off, Exor. c. 12. (23) It is now become the established doctrine, that a decree of the Court of Chancery is equal to a judgment in a court of law†; and where an executrix of A,, who was greatly indebted to divers persons, in debts of different natures, being sued in chancery by some of them, appeared and answered immediately, admitting their demands, (some of the plaintiffs being her own daughters,) and other of the creditors sued the executrix at law, where the decree not being pleadable, they obtained judgments; yet the decree of the Court of Chancery, being for a just debt, and having a real priority in point of time, (not by fiction and relation to the first day † 3 P. Wms. 401. n. (P.) * Littleton v. Hibbins, Cro, Eliz. 793. |