Wiley v. Truett

By the Court. Warner, J. delivering the opinion. The defendant received the money by the consent of such of the heirs as were present, to keep for the benefit of all the heirs, some of whom were absent — amongst whom was the plaintiff. [1.] Some short time after receiving the money, the defendant paid it over to some of the heirs,who were present when he received it; but it does not appear that he paid it over by the consent of all the heirs, one of whom was the plaintiff, who was absent. Did the payment of the money over, under the circumstances, to some of the heirs, by the defendant, when he had received it under the agreement to retain it for the benefit of all, constitute him an executor de son tort? We think that it did, according to the law. If one man takes the goods of the deceased, and sells, or gives them to me, this shall charge him as executor of his own wrong, but not me. 1 Williams’ Ex’rs, .140. So, if a man has some color to intermeddle with the goods of an [590] inte,state, but exceeds his authority, that makes him executor de son tort. 1 Comyn’s Big. top page, 501, title Administrator, letter a i. [2.] Here the defendant had some color of right to take the money, by the consent of the heirs who were present, for the purpose of holding it for the benefit of all: but when he paid it over to some of the heirs, without the consent of those who were absent, he did that which he was not authorized to do, by the terms of the agreement under which he took it. [3.] It appears that Cyrus Harrington, one of the heirs, (they all being of age) acted in behalf of the others to collect the assets of the deceased, and pay the same over to them. On the 27th June, 1848, it appears that the plaintiff with the other heirs, executed a receipt to Cyrus Harrington, as actor for them, by which each one acknowledged to have received from him the sum of seven hundred and thirteen dollars, and ninety-one cents, in full and complete satisfaction of alj his right, title, or interest in, and upon the estate, real and personal, of Catherine Harrington, deceased. Although it does not distinctly appear on the face of the record, that the defendant paid over-the two hundred and eighty-seven dollars to Cyrus Harrington, the actor for the heirs; yet, we think that the inference is pretty strong, that he did so. The Court charged the Jury, “that even if the defendant, under the proof as to his intermeddling, was chargeable as executor de soil tort, the receipt was prima facie evidence that the plaintiff had received his part of the money now sued for: and before he could be entitled to recover in this suit, it was incumbent on him to show that the two hundred and eighty-* seven dollars was not included in the amount divided, and receipted for, as shown by the receipt, and not incumbent on the defendant to show' that it was so included.” Upon the state of facts presented by the record, we think this charge of the Court was right. The receipt given to the actor, hs he is described therein, by the plaintiff, is “in full and complete satisfaction of all his right, title or interest, in and upon the estate, real and personal, of Catherine Harrington, deceased.” He is now seeking to recover from the defendant a portion of that estate in the [591] face of his written acknowledgment, that he had received it all from the hands of Cyrus Harrington, the actor for'the heirs of that estate. If he has received it all, as the receipt shows he has, the two hundred and eighty-seven dollars, being a part of that estate, is included therein, at least, prima fade,, as the Court ruled; but if by mistake, or otherwise, the two hundred and eighty-seven dollars was not included in the amount divided and receipted for, it was clearly incumbent on the plaintiff to have shown it, by competent evidence, at the trial. Let the judgment of the Court below; be affirmed.