Сн 29. See Art. 2, ante. 5 Co. 34, Read's case. Swinb. 448. -2 T. R. 97, 100, Pagget v. Priest, 597. Office of Exr. 171.-2 Bac. 387. Cro. El. 102, 114, 120.Dyer 166, $ 6. A stranger is made executor with £50 legacy; he has not the residuum, but must account for it. Matthews v. Courthope; 3 Salk. 82; 1 Wils. 285; 1 Stra. 568. ART. 6. Actions against an executor of his own wrong. § 1. By our law he is one who alienates or embezzles the goods of the deceased, before he takes administration and renders an inventory. The first part of this provision is correct; the latter uncertain, for by the act he need not render an inventory till three months after he is appointed; yet in that time it is very often necessary to alienate some of the deceased's goods. The old books describe him as a person, who, without any authority from the deceased or the judge, does such acts as belong to the office of an executor or administrator. As if he possess and convert to his own use, the deceased's goods; or out of his assets pays his debts; sues for and recovers debts due to him; or does any act of acquiring, possessing, or transferring the deceased's estate; for by this only, can creditors know against whom to bring their actions; or when he takes and uses them. So by releasing debts due to the deceased, or by paying legacies out of his effects. So by taking a specific leg255-2 T. R. acy without the executor's consent, by delivering too much to 587, 597, Ed- the widow, or by answering to an action against him, except bin.-2 Selw. never executor. So if the wife take too much apparel, she is 689-4 East executor in her own wrong. So one appointed to collect the goods of the deceased, if he sell even perishable goods, by express order of the judge; for he can give no such order. So if one claim to be and act as executor, even where there is a rightful one. So taking the deceased's goods under his bill of sale that is void. So if one die intestate, and A takes his goods and uses or sells them; otherwise, if this be after there is a lawful executor or administrator, for when there is such, the deble . Osbas- ceased's goods are assets in his hands, and A's taking them &c. ton.-1 Esp. is a trespass, and he is to account. But though there be such an executor or administrator, yet if A take the goods, claiming as executor, receive and pay debts, and act as executor, then for such express administration, as executor, he is one of his own wrong. So if there be a rightful executor, and before he proves the will, A takes the goods &c., so receives a debt, this makes him executor of his own wrong. wards v. Har 441. 3 Mass. R 296, Thayer v. Bond, admr. -4 East 441. Toller's Law of Exrs. 364. -Salk. 313. Hob. 49, Ki 290.-2 Dyer 166, Stokes v. Porter 3 D. & E. 587. 5 Co. 31.Imp. 34. 3 T. R. 588. ---2 Bl. Com. § 2. In all these and many other cases, where one is executor of his own wrong, he is liable to be sued in assumpsit and -Dyer 166. other actions, as the executor of the last will and testament of ; and there is no other form. And "he is chargeable with the debts of the deceased, so far as assets come to his hands." And as against creditors, generally, he shall be allowed all payments made to any other creditor, and allowed in mitigation of damages; and generally is liable to the value of the goods he takes; but he cannot retain for his own debt; 507, 508- 48, 91, 143. Toller's Law of Exrs. not even by consent of the legal executor, given after an action is brought by a creditor; but on taking administration he may retain. But this executor of his own wrong may avoid an action by delivering the goods before he is sued, to the legal administrator; but not afterwards. Lord Raym. 661; 1 Mod. 208; 1 Esp. 289; Stra. 1006. CH. 29. Art. 6. 3. Or he may by taking administration himself before he Vaughan v. is sued. But if previously sued, the plt's. writ shall not abate, Brown, 3 T. Andrews' Reports 328; Sid. 76; 12 Mod. 441; he may Bl. 18. retain if he pays a debt. How his taking administration purges all wrongs, Ch. 190, a. 4, s. 31. 471.-4 East 4. If the legal executor bring trespass against a tort exec- 12 Mod. 441, utor, he may give evidence of the payment of just debts in per Holt C. J. mitigation of damages; yet the right of the action and the 441-3 D. & verdict must be against him, and if he pay a just debt with E. 588.the goods of the testator, the rightful executor shall not avoid, Swinb. 337. but have an action against the tort executor, and recover so 1 Mod. 213. much as he has misapplied only. 2 H. Bl. 18. 507.-3 Salk. 161-1 Com. Ex'rs. 39 &c. 5. But he is not such executor or liable to be sued, if he 2 Bl. Com. merely take care of the deceased's funeral; or pays his debts or legacies, if out of his own money; or feeds his cattle, or D.361.—Tolmakes an inventory; or repairs his houses in decay, provides ler's L. of necessaries for his children, and does other acts of mere kindness; nor if he comes into possession of the deceased's property by colour of legal title, though he has no complete title, 1 Esp. R. 335. Priest & Por 86. 6. But the plts. as creditors of W. Shore brought as- 2 T. R. 97, sumpsit against the defts. as his executors. Shore in his life 100, Paggetv. time had goods in his cellar, and asked Porter, one of the ter, exrs.defts., to send a person to take care of them. Porter sent 1 Salk. 313.1 Saund. by Payne, his servant, who sold beer as well after as before Wms. 265.Shore's death by his order. Payne paid into Porter's hands Peake's N. P. the produce of the beer &c. sold after Shore died. Held, Porter is an executor de son tort, but that he would not have been liable, if before he was sued he had paid the money to the lawful administrator of Shore's estate; though his so paying it after sued would have been no excuse. In this case, Porter, without authority, by his servant sold Shore's beer after Bl. 18, Curtis his death, and after his death, his order was void. But an v. Vernon. executor de son tort cannot, after an action is brought against him by a creditor, discharge himself by delivering the effects to the rightful executor; 1 Salk. 318, Churchill v. Hopson. See 3 T. R. 587.-2 H. Coate v. Al § 7. Assumpsit for work and labour done for the testator 4 Maule & and money counts. Pleas, non assumpsit, and ne unques ex- Sel. R. 175, ecutrix, deft. executrix de son tort by intermeddling under drich, exr. power ended. As where C. Aldrich appointed A, B, and C, his executors, and died. A proved the will, reserving a pow CH. 29. er for B and C to come in; A gave a power to C and the deft. (sister to him and the testator) to act for A. She acted in administering the testator's estate till A died; he left her and D and E, his executors, who proved his will. Deft. after A died continued to administer C. Aldrich's estate, consulting and acting under C's advise. She proved under a bankrupt commission a debt due to C. Aldrich's estate, claiming as executrix of A, so under his power as he was dead. Held, she was not executrix de son tort while A lived; but was after his death, as thereby her power terminated, was not executrix of C. Aldrich as executrix of A, as there were surviving executors of C. Aldrich; as if there be two executors and one proves the will and dies, the executorship survives to the other, but if he then renounces, the testator is dead intestate. House & al. And after one has proved it, till his death the other cannot Salk. 311, v. Petre. Kirby 39, Kirby 391, 1 Caines' Ca. man v. Coe & al. renounce. § 8. Administrator liable for interest &c. on an insolvent estate after the average is struck, in his own right; for it is his own fault he suffer it to accrue. § 9. If an administrator refuse to add to the inventory newly discovered estate, the creditor's remedy is on the probate bond, not to sue the administrator, where the estate is regularly proceeded with as insolvent, especially if such creditor has exhibited his claim, and had it allowed by the commissioners, though further estate is discovered and no average struck. § 10. Executor &c. robbed. Held, if an executor or trusin E. 96, Fur tee be robbed of money he received, he shall be allowed it on account, the robbery being proved, though the sum is only proved by his own oath; and if dead, his executor or administrator may avail himself of the circumstance though it want the said oath. If the mortgagee assign the debt &c. no interest or assets pass to his executor or administrator, Crosby v. Brownson. 1 Day's Ca. 425. United States Act, Sept. 24, 1789, sect.31. See Ch. 171, ART. 7. In pending actions, when and how executors and administrators come in. 1. By this act of Congress it is enacted, that " when any suit shall be pending in any court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party who was plt., petitioner, or deft., in case the cause of action doth by law survive, shall have full power to prosecute and defend any such suit or action until final judgment." In the statute law of Massachusetts there is a like clause, from 1784, sect. 10. which this in the United States law was copied. There was a -Prov. Law like clause in Massachusetts Province law, passed A. D. 1727. In this case executors and administrators come in and prosecute and defend actions, commenced by or against the deceased. Mass. Act, 247.-Add. Act. Feb. 26, 1813. A. D. 1818. 2. In practice on these clauses several questions have arisen: 1. When is a suit depending in court? 2. What action survives? 3. Does it extend to administrators de bonis non? CH. 29. Art. 7. 3. As to the first point. In this action of assumpsit the Cir. Court of plt. died before the action was entered, but after the writ was the U. S. at Boston, June sued out. And the court admitted the administrator to come 1795, Gar in and enter the action, and would have notified Gray by scire diché v. Gray facias to come in and answer, but his counsel took notice. And it was held, the action is pending in court from suing out the writ. Did he die before the writ was served? Issuing the writ is the commencement of the action &c. ser Ca. 145, 149, Stone, adm. v. Pickman & 4. In this case in the year 1793, there was a decision, that 3 Johns. if the party died before the entry of the action, and after vice the administrator might come in; and see 3 Cranch 193. The plt. died and his executor came in. He must produce his al-3 Cranch. letters testamentary if called for, but not allowed a continuance. 193, Wilson Upon this question of pedency there have been different exr. decisions in England. v. Codman's of Littleton. -2 Cro. 11. —F. N. B. 140, Notes. 5. In this case the court held, that where a writ issues 5 Co. 48, case out of one court, as Chancery, returnable into another court, 1 Cro. 671. as the Common Pleas, the suit is not pending in the Common Pleas &c. till the writ be returned there. But that where it issues out of, and is returnable into the same court, it is pending before the return or service. And in Croke it is said, a writ is pending as soon as it is sued out. 6. Second question. It may often be doubtful what action survives, not in any case of actio personalis cum moritur persona. This point rests on the common law authorities; and whenever the action dies with the party, as in all cases of tort, the executor or administrator cannot come in. See Actio Personalis &c. Ch. 7. 5 Bac. Abr. 218.-3 Wils. 58.-Far. R. 5. § 7. Third point. It has been uniformly held, that if an Mass. S. J. Court, Essex executor or administrator die pending the suit, the administra- Nov. 1797, tor de bonis non cannot come in; for the statutes do not ex- Swett, adm. tend to this case, and even though he offers to come in. Rem- v. Prince. edy by a new statute, Feb. 1813, and A. D. 1818. 133. 3 Johns. R. 8. The deft. may plead, that prior to suing out the writ, 3 Caines' R. he settled with the plt. the debt. This is good as to time, for 2 Johns. R. this suing out the writ is the commencement of the action, and 342, Bird & the cause of the action must be alleged to have arisen before al . Caritat. this suing out the writ; and if the declaration relate to the 42, Cheetham preceding term, and the cause of action be after, there must . Lewis.be a special memorandum, entitling the declaration at the time it was filed, 14 East 539; 18 Johns. 14. ART. 8. Several other cases decided on American statutes c.1. In this case it was decided, that if an administrator 10 Johns. R. 110. 5 T. R. 6, Pearson v. Heury-Stra. 1144, post. CH. 29. Mass. S. J. Court, Wor- cester 1782, de bonis non of Tulatt v. Com'rs. of Lechmore. And a submit to an award, he does not thereby admit assets. § 2. Change of property. In this case Lechmore, the executor of Tulatt and residuary legatee, gave bond in the probate office to pay debts and legacies, and took into his hands the estate of Tulatt, his testator, and used it as his own. The court decided, that when he had done this he had administered on the estate, and the testator's cattle &c. had become Adininistra the property of Lechmore, and so was changed. This was der an inven- held, in this case in which Divoll had taken administration de bonis non on the estate of Tulatt, and brought this action of whole estate, trover to recover the cattle in question as part of Tulatt's though claimed by a third estate, not administered upon. On the same principle, where person, who the administrator takes to his own account the personal estate may still try in the inventory, and submits to be accountable for the amount of the inventory, he makes this personal estate his own. tor must ren tory of the his right, Kirby 101. 3. An administrator must pay interest on a distributive Court, 1785, share. In 1778, Low, administrator of Symonds' estate, renEssex, Sargent, adm. of dered it insolvent, and the judge of probate made an order of Leveret v. distribution thereon. Low, the administrator, paid some of Low, adm. of the creditors but not all; nor did he offer to pay Mrs. Leveret Symonds. her part in her life time, or to the plt. her administrator after her death, but Low kept the paper money and brought it into court in this action on the clause in the Massachusetts depreciation act respecting trustees. The court decided, first, that Low, as the administrator of Symond's estate, ought to have tendered to each creditor his proportion according to the order of distribution. 1 Esp. 140, 219. Essex 1789, Manning v. Second. That the damages must be ascertained by the value of paper money when the order of distribution was made. Third. That interest should be paid from the time of making the order of distribution, for then a certain sum became due and payable. 4. There never has been a question in this state but that assumpsit lies by and against executors and administrators, and there is here no wager of law. And in declaring against an executor or administrator the plt. need not state assets; and he is never chargeable beyond, unless he pleads an improper plea. § 5. An executor or administrator may be trustee by consent, but see post. In this case, Story owing the plt. a debt, failed, and Mary Wainwright owed Story a debt. She died, having Clark & ux., his trustees. made Elizabeth Wainwright (now Mrs. Clark) her executrix, and left estate sufficient to pay all debts. The plt. sued Story, and he summoned Clark's wife as his trustee on the Massachu |