Ward v. Bevill

COLLIER, C. J. It is laid down in general terms, that taking the goods of an intestate, or any intermeddling therewith by a stranger, will, as it respects creditors make him an executor de so n tort. [Densler, Ex’r, &c. v. Edwards, 5 Ala. Rep, 31; 1 Lomax on Ex. 76 ; 3 Litt. Rep. 163; 5 J. J. Marsh. Rep. 170; 12 Conn. Rep. 313; 4 Mass. Rep. 654;] Every act of intermeddling will not however charge a man as an executor in his own wrong; if the interference is conservative merely, no such consequence will result from it. [1 Wins, on Ex. 139-40 ; 1 Lomax on Ex. 77; 4 McC. Rep. 286.] So if a person set up a colorable title in himself to the goods of the deceased, though he may not be able to make it out completely, he will not be deemed an executor de son tort; one who acquires possession under a fair claim of right does not become chargeable as such. [1 Lomax Ex. 77; 1 Esp. Ca. 335.] It has been held that an executor de son tort may purge his wrong and legalize his tortious acts by taking out letters of administration. [15 Mass. Rep. 322; 8 Johns. Rep. 126.] Although administering by the wrong doer, will thus affect his intermediate acts, and justify a retainer, yet it will not defeat a suit previously commenced. [8 Johns. Ib.; 1 Root’s Rep. 183.] Where administration has been committed to a third person, the executor de son tort must have delivered over the goods to the rightful administrator, before action commenced in order to be discharged from liability. [15 Mass. Rep. 325.] Regularly it is said, there cannot be an executor de son [201] tort when there is a rightful executor or administrator; for if a stranger gets possession of the goods of the deceased after probate or administration granted, he is a trespasser to such executor or administrator, and may be sued as such. But if he take possession previous to that time, he may be charged as executor de son tort, because the lawful representative can only be charged to the extent of the assets that came to his hands. So if a stranger takes the goods oí the deceas» ed, and claim to be executor, pays or receives debts, or pays legacies, or otherwise intermeddle as an executor, he becomes an executor de son tort; and this although there be a rightful executor who had administered. And an executor in his his own wrong is liable to be sued as executor, not only by a creditor or legatee of the deceased, but also by the rightful executor or administrator; and it has been held he may be sued jointly with the lawful executor, or they may be sued severally. [1 Lomax on Ex. 78, and citations there made.] Further: It has been adjudged that the question whether executor de son tortr or not, is a conclusion of law, and not to be left to the jury. Whether the party did certain acts is indeed a question for the jury; but when the facts are established, the court must deduce the legal result. [2 T. Rep. 99.] This notice of adjudications touching the questions arising in the case at bar, are quite sufficient to show that the circuit court erred in its ruling upon the law. It was certainly allowable for Mrs. Watkins to continue her residence at the place where she lived previous to her husband’s death, and to have taken care of the estate, until the appointment of a personal representative; and when administration was duly committed to herself and another, the law would refer the possession to the legal title, and consequently regard it as if in herself and co-administrator. Her possession then up to the time that she was dismissed from the administration, might be accounted for without treating her as a wrong doer. But her subsequent possession cannot be legalized upon any other hypothesis than the assertion of a claim of right, upon the ground that Jenny was her separate property, under the gift from her father, or in virtue of the distribution of his es [202] tate. So far as we can determine from the facts recited in the bill of exceptions, we incline to think her title cannot be rested upon either basis; but in determining her liability as an executor de son tort, it is not indispensible to the success of the defence, that her right to the slave should be defensible. It is enough as we have seen, that the possession should have been taken or retained under color of title, and in good faith, under an opinion honestly entertained that it was paramount to the title of the lawful administrator of the deceased. The bonafides of the possession of the defendants was a question of fact properly referrable to the jury. ■ This question however, the court assumed to decide in instructing the jury that the facts proved did not render the defendants liable as executors de son tort; or, if the court did not determine this fact, the cause was improperly referred to the jury, and in such a manner as to prejudice the plaintiff. Skinner v. Frierson & Crow, 8 Ala. Rep. 915, is altogether unlike the present case. It was there decided that when an administrator, resigns pending a suit against him, the plaintiff is not compelled to make the succeeding administrator a party in his stead, though he has the privilege to do so ; but may proceed with the suit in order to charge the resigning administrator and his sureties; unless the resigning administrator also shows a due administration, or a transfer of all the assets to the succeeding administrator. It is not pretended that the female defendant and her co-administrator resigned their trust; the proof is, that they were discharged from the administration, and the letters previously granted to them were revoked. Besides, this action was not commenced until after they had ceased to be administrators, and the defendants, if such be their character, became executors de son tort. The consequence is, that the judgment of the circuit court is reversed, and the cause remanded.