Emery v. Berry

Eastman, J. In examining the questions presented by this case, we shall pursue the order taken in the argument, and consider, first, the ruling of the court by which a verdict was taken for the defendant upon the issue to the jury. It may be stated, in general terms, that at common law an executor de son tort is one, who, without any authority from the deceased or the court of probate, does such acts as belong to the office of an executor or administrator; and it is said that all acts of acquisition, transferring or possess — 482 — ing of the estate of the deceased, will make an executor de son tort; because these are the only indicia by which creditors know against whom to bring their actions. 2 Bac. Abr. 387, and authorities there cited. Our statute provides that “ if any person shall unlawfully intermeddle with, embezzle, alienate, waste or destroy any of the personal estate of a deceased person, he shall stand chargeable and be liable to the actions of the creditors and others aggrieved, as executor in his own wrong, to double the value of the estate so intermeddled with, embezzled, alienated, wasted or destroyed.” Rev. Stat. ch. 158, § 15. What precise acts shall be deemed an intermeddling so as to charge a person as executor in his own wrong, has never, so far as we are advised, been directly passed upon by the courts of this State. The question has incidentally arisen in two or three cases, but no definite decision has been made. Pickering & a. v. Coleman, 12 N. H. Rep. 148; Leach v. Pillsbury, 15 N. H. Rep. 137. In the latter of these cases, it was said that “ it seems that the single act of receiving and paying out a sum of money belonging to the estate of an intestate, will make a person an executor de son tort, so far that he may be charged as such.” If a stranger gets possession of the goods of the deceased before probate of the will, he may be charged as executor in his own wrong. Read's Case, 5 Coke 33, b ; Salk. 313, pl. 19; Dyer 166, b; Roll. Abr. 918. And Mr. Justice Buller, in Edwards v. Harben, 2 Term 597, says, “ in short, every intermeddling after the death of the party makes the person so intermeddling an executor de son tort.” And the same learned justice, in Padget v. Priest, 2 Term 97, says, “ it is clear, from all the cases, that the slightest circumstance of intermeddling will make an executor de son tort.” The case of Padget v. Priest, and the authority of Dyer 166, b, are cited and approved by Williams, in his note 2 to Osborne v. Rogers, 1 Saund. 265. — 483 — A careful examination of the authorities will, we think, show that, as between a creditor of the deceased and a person who may intermeddle with his goods, very slight acts indeed will make him liable as executor as de son tort. Acts of necessity or humanity, such as locking up his goods, burying the corpse of the deceased, or feeding his cattle, and similar acts of charity, by which a person does not assume to have any control over the property more than otbr ers, will not constitute a person executor in his own wrong. 2 Bacon’s Abr. 288; 2 Black. Com. 507; Dyer 166. But where one possesses himself of the goods of the deceased, for the purpose of taking care of them, the object of the possession must be made to appear, before he can be discharged from the responsibility arising from his possession. Hubble v. Fogartie, 3 Richardson 413. The best rule that occurs to us, that can be laid down upon the subject is this; that all acts which assume any particular control over the property, without legal right shown, will make a person executor in his own wrong, as against creditors. Any act which evinces a legal control, by possession, direction or otherwise, will, unexplained, make him liable. And this position the authorities seem fully to sustain. 2 Bac. Abr. 387; 5 Coke 33, b ; Edwards v. Harben, 2 Term 597 ; Padget v. Priest, 2 Term 97; Campbell v. Tousey, 7 Cowen 64 ; White v. Mann, 26 Maine Rep. 361; Wilson v. Hudson, 4 Harrington 168; Hubble v. Fogartie, 3 Richardson 413 ; 1 Saund. 265, note. Mountford v. Gibson, 4 East 441, and the other cases cited by the defendant’s counsel, will not, we think, when carefully examined, be found to conflict with these views. The evidence, in this case, was competent to show the defendant executor in his own wrong, and liable under our statute. It tended to show that the defendant had in his posssession $400, money which he had received from the estate of his son, Joseph Berry, who was an alleged debtor of the plaintiff, and who died in California. He received it — 484 — through a draft on Boston, sent by a Mr. Matthews, from San Francisco. The object for which the money was sent is not stated. It was sent to the defendant, subject to no order of the deceased, or of any administrator or executor of his in California. Matthews would appear to have been acting as the friend of the deceased, and, without any administration upon the estate, to have taken upon himself to send the avails of the property of the deceased to his father, in this State. The case finds Berry to be dead. It finds, in effect, that the $400 belongs to his estate, and that the same is money, in the hands of the defendant, in this State. It does not appear that any administrator, executor, creditor or heir in California has any right to the property, or to its control. Nor does it appear that it was sent to this State by authority of any will or the decree of any probate court. Neither is any thing disclosed in the case by which it appears that any one in this State or elsewhere has any right to any legal control over it. It is, then, simply personal property of the deceased, in this State, in the hands of the defendant, subject to the rights or interference of no one, except as the statute shall point out. Being within our jurisdiction, under such circumstances, it may properly be administered upon in this State, for the benefit of the heirs and creditors residing here. There has been no administration upon the estate of the deceased in this State, and the defendant is the only person shown to have intermeddled with the property here. He is the only one who has had it in his possession, and exercised control over it, and we infer from the facts stated, has declined to surrender the property or take out letters of administration upon the estate. If the defendant desires to avoid the penalty prescribed by the statute, it seems that it may be done by his now taking out letters of administration. . Shillebar v. Wyman, 15 Mass. Rep. 322. — 485 — We are the better satisfied with the conclusion to which we have arrived, as to the liability of this defendant, from comparing the section of the statute already cited with the twelfth section of the same chapter. The latter provides that “ no person shall intermeddle with the estate of any person deceased, or act as the executor or administrator thereof, or be considered as having that trust, until he shall have given bond to the judge, with sufficient sureties, in such reasonable sum as he shall approve, upon condition,” &e. While this section provides that no person shall inter-meddle with the estate of any person deceased without giving bond, the fifteenth provides that if any person shall unlawfully intermeddle with the personal estate of any deceased person, he shall stand chargeable as executor in his own wrong. The two sections taken together would seem to show that when the legislature speak of an unlawful intermeddling, they mean all such as takes place without giving bond as administrator or executor. Having arrived at the result to which we have, we might omit giving any opinion upon the competency of the plaintiff’s evidence to sustain the issue to the court. But as the case will probably be tried again, we think it but proper that some intimation should be given as to the other questions presented, as desired by the defendant’s counsel; especially as we are of opinion that a portion of the plaintiff’s evidence is clearly defective. The testimony of Mr. Low to prove the change in the organization of the courts of the State of Maine was inadmissible. The written or statute laws of a foreign government must be verified in the same manner as foreign judgments ; by the exemplification of a copy under the great seal of State, or by a sworn copy. Unwritten laws may be shown by parol evidence. Watson v. Walker, 3 Foster’s Rep. 471; Church v. Hubbart, 2 Cranch, 237; Raynham v. Canton, 3 Pick. 293; Packard v. Hill, 2 Wend. 411; Lincoln v. Battelle, 6 Wend. 475; 1 Greenl. on Ev. § 488. — 486 — How far the several United States shall be governed by these principles, when applied to themselves, is not fully agreed. Upon strict rules of evidence, the laws of one State can be proved in the courts of another only as foreign laws; each State being sovereign and independent in all things not surrendered to the general government by the constitution. The relations of the several States to each other are those of foreign States in close friendship, and they are liable to be treated by each other, except so far as governed by the constitution of the United States, as foreign independencies. 1 Greenl. on Ev. §§ 489, 504; Mills v. Duryea, 7 Cranch 481; Hampton v. McConnell, 3 Wheat. 234. It seems that the rule in New York and Connecticut, and some other States, requires the statutes of sister States to be proved in the same manner as foreign laws. Packard v. Hill, 2 Wend. 411; Brackett v. Norton, 4 Conn. Rep. 517, 521; Hemstead v. Reed, 6 Conn. Rep. 480; State v. Twitty, 2 Hawks (N. C.) Rep. 441; Bailey v. McDonnell, 2 Harrington’s (Del.) Rep. 34 ; Van Buskirk v. Muloch, 3 Harrison’s (N. J.) Rep. 184. But it has been otherwise held in the supreme court of the United States, and in the courts of several of the respective States. With them it has been decided that a printed volume, purporting on the face of it to contain the laws of a sister State, is admissible as prima facie evidence to prove the statute laws of that State. Young v. Bank of Alexandria, 4 Cranch, 384; Thompson v. Musser, 1 Dall. 458; Thomas v. Davis, 7 B. Munroe’s (Ken.) Rep. 227; Raynham v. Canton, 3 Pick. 293; Comparet v. Jernegan, 5 Blackford’s (Ind.) Rep. 375; Biddis v. James, 6 Binney, 321; Kean v. Rice, 12 Serg. & Rawle, 203; Hanrick v. Andrews, 9 Porter’s (Ala.) Rep. 9; Mullen v. Morris, 2 Barr’s (Penn.) Rep. 85; Clark v. Bank of Miss., 5 Eng. (Ark.) Rep. 516; State v. Stade, 1 D. Chipman’s (Vt.) Rep. 303; Taylor v. Bank of — 487 — Alexandria, 5 Leigh’s (Virg.) Rep. 471; Allen v. Watson, 2 Hill’s (S. C.) Rep. 319. But notwithstanding the difference of opinion existing among learned jurists as to the admissibility of a printed volume purporting to contain the statutes of a sister State as prima facie evidence of the written laws of such State, the authorities appear to be uniform that such statutes cannot be proved by parol. Raynham v. Canton, 3 Pick. 393 ; Comperet v. Jernegan, 5 Blackford, 375. And, indeed, most of the authorities before cited are applicable to this position. Of course that part of the testimony of Mr. Low which was introduced to show the change in the organization of the courts could not be admitted; for the change was made by express statute, and formed a part of the written laws of the State. His testimony in this and other respects, so far as it went to show statute provisions, was inadmissible. But we think we ought to hold that a printed volume of the statutes of a sister State, purporting upon its face to have been printed by its authority, and to contain the laws of the State, should be admitted as prima facie evidence to show what those laws are. Such a course seems called for by the great convenience and saving of expense that it will afford to parties, and by that confidential relation which exists between the States. The rule, too, would seem to be almost entirely free from any danger of abuse, and error or imposition could easily be detected. But the exception taken to the amendment of the record of the judgment, cannot prevail; that is, if we assume that the powers and records of the district court were transferred to the supreme judicial court. The amendment was made to correspond with the minutes upon the docket. It was to cure a defect in the record which had been erroneously made by the clerk; and the order for the amendment was that it be made by stating the facts as they appeared upon the docket. The error was merely clerical, and one which the — 488 — court could order corrected without motion or notice to either party. It appears, also, by the testimony of Mr. Low, that the facts fully warranted the amendment. He appeared by the direction and employment of the defendants, and answered to the action as attorney for them. Had there been no appearance, the judgment would not have been good beyond the limits of the State. If a judgment is rendered against a defendant residing out of the State where the suit is pending, it will be inoperative beyond the limits of the State where it is rendered, unless the court obtain jurisdiction of the defendant’s person. But if a defendant voluntarily submits to the jurisdiction of the court by appearing and defending in person, or by attorney, he cannot, in this State, question the validity of the judgment which that court might have rendered against him. Downer v. Shaw, 2 Foster’s Rep. 277, 281. Verdict set aside and new trial granted.