Allen v. Hurst

Cobb, J. While the petition is brief and somewhat informal, it was clearly the intention of the pleader to bring a suit under the Civil Code, § 3310, against the defendant as an executor in his own wrong. It is not an effort to recover the property as a year’s support, but a suit by heirs at law to recover, under the terms of the section referred to, double the value of the property converted. The allegations as to year’s support are surplusage, and the peti [765] tion does not contain two counts, but only one seeking a recovery against the defendant as an executor in his own wrong. Heirs at law can not generally sue in their own name to recover their distributive share in personalty, without alleging that there was no administration and no necessity for any. Civil Code, §3353; Blair v. Dickerson, 73 Ga. 146; Morgan v. Woods, 69 Ga. 599 ; Smith v. Turner, 112 Ga. 533 ; Carr v. Berry, 116 Ga. 372. But a suit under the Civil Code, §3310, is a special proceeding, governed only by the provisions of that section. It provides: “ If any person, without authority of law, wrongfully intermeddles with, or converts to his own use, the personalty of a deceased individual, whose estate has no legal representative, he shall be held and deemed an executor in his own wrong, and as such shall be liable to the creditors and heirs or legatees of such estate, for double the value of the property so possessed or converted by him.” Under the terms of this section it is necessary to allege that the estate “ has no legal representative,” and this the petition does. It is not necessary to allege that there are no debts and no necessity for administration. The statute vests the right to sue in the heirs and creditors, in the event that there is no legal representative of the estate. An executor in his own wrong is one who wrongfully intermeddles with the goods of the deceased, or does any other act characteristic of the office. 1 Williams on Exrs. t. p. 298. And generally it is necessary to charge the defendant with such an intermeddling with the goods of the deceased as would indicate that he is endeavoring to perform an act which should be performed only by a legal representative. Willingham v. Rushing, 105 Ga. 79. But our statute in terms provides that if a person “ converts to his own use ” the property, he shall be deemed an executor in his own wrong. The act of conversion is not an act which a legal representative usually per. forms, but one which' under the statute of this State would be as unlawful for him as for any one else. Under the old practice an executor de son tort was charged generally as an executor. And under the practice prevailing in this State before the cede, a judgment against the defendant who had wrongfully intermeddled with the property of an estate generally as executor, without adding the words de son tort, would be valid. Shotwell v. Rowell, 30 Ga. 557. We need not decide whether this would be true since [766] the code. But it is certain that a person who has done any act which would make him an executer de son tort may be sued as such, and judgment be rendered against him in which “ the cabalistic gibberish ” de son tort is used as a term of description. The allegations of the petition bring the defendant within the express terms of the statute, and the demurrer should have been overruled. Judgment reversed. All the Justices concur.