the action; that all the charges made by the defendant were reasonable and just; and there seems to be no controversy concerning the fact that defendant Sawyer sold the property and paid the funeral expenses with the proceeds. One purpose of an administrator is to take charge of the property belonging to the estate. He becomes the means by which the property belonging to the estate is applied to the payment of debts, if there are any, and the surplus remaining is distributed among the heirs. The statute in this case seems to contemplate that those of the relatives who are near the deceased

It is claimed by the defendants that the administrator is estopped from prosecuting' in taking upon himself to act in behalf of, the estate were honorable, but it would be productive of infinite confusion in the settlement of the estates of deceased persons if the acts of unauthorized agents were to be recognized as valid; more especially in the courts of common pleas, who have no original jurisdiction in the settlement of estates."

In an action of trover brought by the rightful administrator, an executor de son tort will not be permitted to give in evidence in mitigation of damages payments of debts to the value of goods still in his possession. Nor will he be permitted to retain them in satisfaction of his own debt. Hardy v. Thomas, 23 Miss. 544, 57 Am. Dec. 152. The court said: "It is true it is laid down in some of the elementary writers, that an executor de son tort, in an action of trover brought against him by the rightful administrator, cannot plead payment of debts, etc., to the value, etc., or that he hath given the goods in satisfaction of the debts, etc., yet that he may, upon the general issue pleaded, recover such payments in damages, and if they amount to the full value, he may nonsuit the plaintiff. Bull. N. P. 48. But the rule is also laid down that in trover, by a rightful administrator against an executor de son tort, he could not give in evidence, in mitigation of damages, payment of debts to the value of the goods still in his possession, but only such as were sold. Ibid; Lomax, Exrs. 363, 364. Nor could he retain in satisfaction of his own debt, because he would not be permitted to profit by his own tortious acts. Lomax, Exrs. 365. The proof in this case showed that the defendant was still in possession of the goods, and had not parted with them in payment of debts, and he could not, therefore, prevent a recovery by showing payment of debts to their value, upon the most favorable rule before laid down. But it may well be questioned whether, under our statutes prohibiting administrators to sell without an order of the probate court, and declaring a sale void without such an order, an executor de son tort could give in evidence, in mitigation of damages, the fact

the body and burying it. If the defendant Sawyer carried out the wishes of the relatives who were there, it would appear that that he had sold the goods in payment of debts. At common law, an administrator or executor might sell goods at private sale, and hence it was held, if the rightful administrator brought trover against the executor de son tort, he thereby admitted his possession of the goods to be lawful, and if the executor de son tort showed a sale of the goods in payment of debts, that was a distribution of them in accordance with the law, and negatived a conversion. But it would seem, where a sale even by a rightful administrator of this kind would be void, a sale by an executor de son tort could not be otherwise than illegal and void; and therefore would amount to a conversion. Any other rule than this would enable an executor de son tort to convert the whole estate to the payment of a single creditor, and in case the estate proved insolvent, would enable such creditor to obtain payment of his debt to the exclusion of all other creditors. The impolicy of such a rule is manifest. If a party see fit, without authority of law, to intermeddle with an estate to pay debts, and sell property for that purpose, all he can rightfully ask is the privilege of proving a claim against the estate for the sums so paid, and demanding payment from the administrator ratably with the other creditors."

"Though an executor de son tort pay debts duly, with all the assets that come into his hands, yet the rightful executor shall maintain trespass against him; but he may give such payment in mitigation of damages; yet the right of the action and verdict shall go against him." Anonymous, 12 Mod. 441.

In Reagan v. Long, 21 Ind. 264, an action in the nature of trespass by the administratrix to recover the value of assets of the estate which defendant had converted to his own use, or disposed of, it was held that, conceding defendant to have been executor de son tort, he should have been allowed, in reduction of damages, the amount he proved he had not converted to his own use, but to the use of the plaintiff in her fiduciary character, being that in which she sued.

In such an action, the defendant, under

the other relatives would have no reason to complain. As the administrator represents the creditors and the heirs, and is only a trustee, it would seem that he is estopped from maintaining an action against the defendant Sawyer and his bondsmen for doing that which Sawyer was requested to do, and which he actually did, in taking charge of the body of the deceased and burying it. In Dame, Probate & Administration, § 231, it is said: "All courts generally hold that the personal representatives may pay the same [funeral claims] directly, without their being exhibited." If this be true with respect to personal representatives, it should be true of the coroner, who is requested by the personal representatives to discharge the duties which are a natural burden upon them.

the general denial of the complaint, may give evidence generally tending to disprove plaintiff's right to recover or to damages. Ibid.

An executor de son tort, when sued by the rightful representative, is entitled to be allowed for amounts paid by him to the proper uses of the estate, as the payment of debts, etc. Leach v. Prebster, 35 Ind. 419. And see Dorsett v. Frith, 25 Ga. 537.

But this can only be allowed where there are sufficient assets to pay all the debts of the deceased; for otherwise one creditor would be paid in full, and others nothing. If there be a deficiency of assets, he should be allowed only the proportionate share of the debts which he paid. Leach v. Prebster, supra.

But see De la Guerra v. Packard, 17 Cal. 183, where it is stated that if the estate be insolvent, it is no answer to an action to recover the assets that he has paid debts equal to or exceeding their value. And see also supra, this section, M'Carthy v. Donovan, 13 Ir. C. L. Rep. 195.

Buller, J., said (obiter dictum) in Padget v. Priest, 2 T. R. 100: "The courts have gone thus far, that if an action be brought by a rightful administrator against an executor de son tort, whatever may have been disposed of in the course of administration, as by paying debts, etc., shall be allowed to him in damages." And see Graysbrook v. Fox, 1 Plowd. 275; Mountford v. Gibson, 4 East, 441, 1 Smith, 129; Parker v. Kett, 12 Mod. 466.

In Tobey v. Miller, 54 Me. 480, which was an action of trover by the rightful administrator of an intestate's estate to recover the value of the goods and effects of the estate taken by an executor de son tort, it was held that the defendant could not in that form of action file an account in set-off. But holding that under the statute about to be referred to, the defendant might retain for the necessary funeral expenses paid by him, the court said: "When an executor in his own wrong is sued, it is provided by Rev. Stat. 1857, chap. 64, § 32, that he shall not be allowed to retain any part of the goods or effects, except for such funeral

It is altogether probable that when Sawyer sold the property he thought he was authorized to do so by § 110, chap. 18, art. 1, Comp. Stat. 1909: "When any valuable personal property, money, or papers are found upon or near the body upon which an inquest is held, the coroner shall take charge of the same and deliver the same to those entitled to its care or possession; but if not claimed, or if the same shall be necessary to defray expenses of the burial, the coroner shall, after giving ten days' notice of the time and place of sale, sell such property, and after deducting coroner's fees and funeral expenses, deposit the proceeds thereof, and the money and papers so found, with the county treasurer, taking his receipt therefor, there to remain subject to the order of the legal expenses, debts of the deceased, or other charges actually paid by him as the rightful executor or administrator would have to pay.' That is, he is permitted to retain to the extent indicated. The word 'retain' was used to protect the defendant, whatever may be the form of the action when sounding in damages, by enabling him to retain what, if not paid by him, the administrator or executor would have been compelled to pay. Nor is this provision materially dif ferent in its spirit from the common law. The executor is entitled to deduct reasonable funeral expenses from the assets that come into his hands. Yardley v. Arnold, 2 Dowl. N. S. 311, 10 Mees. & W. 141, Car. & M. 434. Where the rightful executor or administrator sues the executor de son tort, if the action 'be trover for the goods of the deceased, the defendant,' observes Buchanan, Ch. J., in Glenn v. Smith, 2 Gill & J. 493, 20 Am. Dec. 452, 'cannot plead payment of debts to the value, or that he has given the goods in satisfaction of the debts. But, on the general issue pleaded, he may give in evidence such payments, and they will be recouped in damages, if they be such as the plaintiff would have been bound to make, or, in the language of some of the books, made in due course of administration. Whitehall v. Squire, Carth. 104; Bull. N. P. 48: 2 BI. Com. 507; Mountford v. Gibson, and Parker v. Kett, supra. This recoupment is allowed when the debts are just and there is no deficiency of assets."

And Pettengill v. Abbott, 167 Mass. 307, 45 N. E. 748, says that if the widow was an executor in her own wrong, "she might be allowed to retain funeral expenses actually paid by her."

But see Walton v. Hall, 66 Vt. 455, 29 Atl. 803, following Shaw v. Hallihan, 46 Vt. 389, 14 Am. Rep. 628, and refusing an allowance to the estate of a widow for funeral expenses of her husband and cost of gravestone over his grave, incurred by her where she became an executor de son tort by intermeddling with his estate in other respects.

Generally as to liability of decedent's estate for funeral expenses, see notes to

representatives of the deceased, if claimed within five years thereafter, or if not claimed within that time, to vest in the school fund of the county." He was brought face to face with the problem of giving the body of the deceased decent and immediate Christian burial. The sale of the property would furnish the means of paying the very necessary expenses of the funeral. He sold it, got the money, and used it. The dead man seems to have been decently and properly buried according to Christian rites. The defendant is equitably entitled to his pay for it, and it is not quite right that the plaintiff should have judgment against him. We do not intend to hold that the section Fogg v. Holbrook, 33 L.R.A. 660, and Golden Gate Undertaking Co. v. Taylor, 52 L.R.A. (N.S.) 1152.

In Layfield v. Layfield, 7 Sim. 172, 4 L. J. Ch. N. S. 2, where payments were made in the course of the bill for an accounting, by persons without taking administration, to one who, in the course of the cause, became the administrator of the estate, such payments were not allowed.

An executor de son tort, when sued in equity by the rightful representative, can show that there are no debts outstanding against the intestate, and that he has applied the assets for the use and benefit of the distributees, as they must have been applied if he had been the rightful representative. Brown v. Walter, 58 Ala. 310. The court said: "While an executor de son tort cannot, by his wrongful acts, acquire any benefit, he is protected in all acts, not for his own benefit, which the rightful representative may do; and it may be laid down, as a general rule, that all his lawful acts are good, affording him full protection. He could not at common law, as the rightful representative could, retain for his own debt; but this exception rested on the policy of preventing a race between creditors, to obtain possession of the assets, without taking administration. It would have enabled him to derive an advantage from his own wrongful acts. 4 Bacon, Abr. 31-34; 1 Lomax, Exrs. 177-185. There being no debts, no necessity for a rightful administration, except to make distribution, if the executor de son tort has applied the assets to the benefit of the distributees, in equity, he should be protected. The rightful administration is an unnecessary and expensive ceremony, from which no good can result. Vanderveer v. Alston, 16 Ala. 494. If the distributees had, in the present case, as they might have done, sought from the defendants an account of the assets, it will not be doubted the defendants could have retained for the advancements made in their maintenance and education. The appellant, there being no creditors, is in equity but a trustee for the distributees. If he received the assets from the respondents, he would be compelled to hand them over to the distributees, and they would be com

quoted justified the conduct of the coroner. The same is justifiable upon other grounds. We think that if the defendant Sawyer was requested by the nephew, Bert Reed, to take charge of the body and to prepare it for burial, and that he did so because of such request, and that he sold the property for its full and fair value, which is not questioned, and used the money which he received therefor in payment of the necessary funeral expenses, then that he is equitably entitled to pay therefor, and he is further equitably entitled to set off the money so paid out by him against the plaintiff's claim for the value of the property sold. The same is true if the matter was ratified and adjusted pelled to pay them back to the respondents in reimbursement of the advancements. There is no reason for any such process, which could result in benefit to no one, and would result in loss to the respondents."

Even if the executor de son tort is himself a creditor of the decedent, he cannot, when called to account by the rightful representative, apply any part of the assets to the payment of his own debt. Glenn v. Smith, 2 Gill & J. 493, 20 Am. Dec. 452; Baumgartner v. Haas, 68 Md. 32, 11 Atl. 588; Leach v. House, 1 Bail. L. 42; Sharp v. Caldwell, 7 Humph. 415; Partee v. Caughran, 9 Yerg. 460; Hardy v. Thomas, 23 Miss. 544, 57 Am. Dec. 152; Brown v. Walter, 58 Ala. 310; Alexander v. Lane, Yelv. 137; Prince v. Rowson, 1 Mod. 208; Curtis v. Vernon, 3 T. R. 587, 2 H. Bl. 18, 1 Revised Rep. 774; Elworthy v. Sandford, 3 Hurlst & C. 330, 34 L. J. Exch. N. S. 42, 10 L. T. N. S. 654, 12 Week. Rep. 1008.

Though he be a creditor of a superior nature, an executor de son tort cannot retain in satisfaction of his own debt. Curtis v. Vernon, 3 T. R. 587, 2 H. Bl. 18, 1 Revised Rep. 774.

In Leach v. House, 1 Bail. L. 42, the court said: "In Curtis v. Vernon, supra, Lord Kenyon says that though an executor de son tort be a creditor of superior nature, it is clear from all the authorities that he cannot retain for his own debt. And such is conceded to be the rule at law; but it is said that the rule is otherwise in equity, and the jurisdiction of a justice of the peace being equitable, as well as legal, it ought to have been allowed here. No case has been cited in support of this position, nor have I been able to lay my hand on any one in which it has been allowed. In 2 Fonbl. Eq. 240, the general rule is laid down that an executor de son tort cannot retain, and the reasons on which it rests preclude the idea that a different rule prevails in equity. Any intermeddling with the goods of a deceased person without lawful authority is, as before observed, a wrong,-a trespass, for which an action lies at the suit of him who has the legal right of possession; and the right to retain is wholly inconsistent with this remedy. The right to retain would be the leading, if not the only, motive

between the defendant Sawyer and the son of the deceased, Earnest Reed. We do not undertake to say what, if any, steps should have been taken before the county court towards proving these claims, because that question is not before us.

"The true representative is bound by those acts of an executor de son tort which are lawful and such as the true representative would be bound to perform in the due course of administration." 18 Cyc. 1361. Among the authorities cited is Thompson v. Harding, 2 El. & Bl. 630, 22 L. J. Q. B. N. S. 448, 18 Jur. 58, 1 Week. Rep. 468, holding that a proper payment to a creditor of the estate will bind the true representative. In to such intermeddling; and if it were allowed, the administration of the estate of one who died indebted would be according to the laws of force, and not of reason. lt would lead directly and inevitably to a contest between the creditors for the possession of the goods of the deceased, and the rights of all being equal, the strongest would bear off the spoil. The law has prescribed the order in which debts are to be paid and estates administered, and it is but just that he who attempts by force or fraud to divert the assets from their legitimate channel should be compelled to forego the advantages which he has acquired by his own wrong. It is not impossible that, under very peculiar circumstances, a retainer may have been allowed in the courts of equity. Those courts exercise a very latitudinary discretion in cases consisting of circumstances which are not reducible to any rule; but if such cases do exist, they will rather support than impugn the general rule."

Discussing the effect of the Oregon statute amending the common-law rule, and of the right of an executor de son tort to be credited with payments which he may have made that are tantamount to a due administration of a decedent's estate, the court, in Rutherford v. Thompson, 14 Or. 236, 12 Pac. 382, said: "The person who intermeddles with the goods of the deceased is now only responsible to answer in an action to the rightful executor or administrator. And whether we consider the intermeddler as an executor de son tort, or as a wrongdoer, the liability to respond to the rightful executor or administrator is the same, and unaffected, and the law unchanged. The fiction of oflice may be gone, but the unauthorized act of intermeddling remains, to be dealt with judicially, according to the principles of right and justice, as applied by the law in such cases. Now, from the fact that the intermeddler with the goods of a deceased is only liable to respond to the rightful executor or administrator for the value of the goods, etc., it by no means follows, if what he did was of benefit, and not injury, to the estate, as the payment of funeral expenses, or debts of the deceased, or charges such as the right

that case Richard Smith was employed to receive the rents of the deceased in his lifetime, and after his death continued to receive the rents due to the deceased. No other representative of the deceased appearing, Smith paid various debts due from the deceased. Among other things, he paid the defendants, who were bankers of the deceased. A considerable time after payment administration was granted to the plaintiff, who brought the action. The court held, under the facts, "that the rule to enter a verdict for the plaintiff ought to be discharged."

In Outlaw v. Farmer, 71 N. C. 31, John Farmer gave his promise in writing to pay ful representative might have been compelled to pay, he would not be allowed to show the same in mitigation of damages in an action of trover, instituted by such executor or administrator. In thus compelling him to account with only the rightful representative, the statute does not purport or undertake to deprive him of any proper or legitimate defense. The title of executor de son tort may be repudiated, but the justice of the law will remain, to distinguish between acts which are beneficial and those which are injurious to an estate."

This language is quoted with approval in Slate v. Henkle, 45 Or. 430, 78 Pac. 325; and see also to the same effect, Merrill v. Comstock, 154 Wis. 434, 143 N. W. 313.

The acts of the wrongdoer complained of, it seems, must be treated with reference to their beneficial or injurious character. If debts paid by him are debts which the rightful representative would be bound to pay in the due course of administration, they create an equity against the estate; they are not injurious, but must be considered as beneficial, making it competent for the defendant to give such payments in evidence, which operate by way of recoupment. Rutherford v. Thompson, supra.

This right of the wrongdoer or executor de son tort to recoup in damages for disbursements or payments made in the due course of administration when sued in an action for conversion by the legal representative of the decedent affords him an adequate remedy at law, so that he cannot maintain a cross suit in equity to recover the value of his expenditures. Slate v. Henkle, supra.

An executor de son tort, or a wrongdoer, is not entitled on an accounting to an allowance for sums paid to a surety company, and for appraisers' and justices' fees for services that could never have been any benefit to the estate. Ibid.

Neither is he entitled to an allowance for attorneys' fees unless the service rendered was in preserving the estate, resulting in a benefit thereto. Ibid.

And a sum claimed by such executor de son tort, or wrongdoer, stands on the same footing. Ibid.

John Lewis or James Parker, agents, by agreement with the heirs of Anna Herring, deceased, the sum of $125.50. Lewis and Parker were appointed agents by the heirs of Anna Herring. As the agents of such heirs, they had charge of the entire beneficial interest in the estate. In a suit by the duly appointed administrator of the estate against the makers of the promise, it was held: "administration was only the technical form of passing the legal estate from

the intestate to the distributees. Without administration they had the potential dominion over the estate, and could dispose of it by sale, gift, or testament. Therefore a

And on an accounting by such executor, de son tort or wrongdoer, he is not entitled to any sum as administrator's fees, and if the fees have been paid they must be returned, such executor being liable to the de jure executor therefor. Ibid.

"The statute 43 Eliz. chap. 8, enacted that all and 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, or any debt or duty that belonged to the intestate, shall be charged and chargeable as executor of his own wrong; and so far only as all 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 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. 4 Bacon, Abr. Bouvier's Notes, 28." Slate v. Henkle, supra; Winn v. Slaughter, 5 Heisk. 191.

The enactment of this statute probably gave rise to the rule adopted by courts that just debts of a decedent which have been paid by an executor de son tort according to their legal priority may be set off against the amount of damages for which his intermeddling has made him liable. Slate v. Henkle, supra.

In Crispin v. Winkleman, 57 Iowa, 523, 10 N. W. 919, where the action was by the administratrix against one who had intermeddled with decedent's estate, but who is not therein expressly termed an executor de son tort, the court said: "But the defendant paid two bills for medical services rendered the decedent, and these payments were not allowed. The defendant in his argument complains of the action of the court in this respect. In our opinion there are two grounds upon either of which the ruling can be sustained. It was not the defendant's right to use the money of the estate in paying its debts. Portman v. Klemish, 54 Iowa, 198, 6 N. W. 265. It is true that in that case the defendant was not charged with money so used; but the court expressly disapproved the acts of the defendant, and sustained the ruling of the court below, only by reason of the peculiar cir

“Although an executor de son tort cannot by his own wrongful act acquire any benefit, yet he is protected in all acts, not for his cumstances of the case. The decedent's widow had been made sole devisee and appointed executrix. For some reason she failed to qualify. The defendant undertook to assist her in the management and disposition of the estate. The payments were made with that view. The duly appointed administrator received money enough to pay all the proven debts. If a recovery had been allowed from the defendant it would have been solely for the benefit of the devisee, who did not appear to be in a condition to complain. While the result was favorable to the defendant in that case, the general doctrine of the opinion is against the defendant in this. Besides in no case could an intermeddler be allowed to escape liability for using money of the estate in the payment of its debts, without an affirmative showing that the amounts paid were correct. In this case we find no evidence of the value of the services paid for, but merely of the amounts paid." And see Elder v. Littler, 15 Iowa, 65.

In Tuite v. Tuite, 72 N. J. Eq. 740, 66 Atl. 1090, it was held that under the statute of that state (title, "Executors & Administrators," Gen. Stat. vol. 2, p. 1426, § 3), a widow, who, without taking out administration thereon, took possession of the personal property possessed by her deceased husband at the time of his death, was chargeable with the value of all such property, less all payments made which a lawful administrator might have been credited with under the laws of that state. The widow was not proceeded against in this case as an executrix de son tort, and no personal representative of the decedent was a party thereto, and the form of the bill was not such as to raise the proper issues and secure appropriate relief from her as such. But the court was willing to permit the complainants, if they so desired, to move to amend their bill so as to seek an accounting from her for the property of the deceased which came into her hands at his death, making a representative of his estate a party, if they should be so advised. Bill in this case was to decree a trust of certain lands held by defendant for the benefit of the complainants.

Suit by creditor.

While an executor de son tort, when sued