title is wanting, one who takes upon himself, regarding the goods of a decedent, and without authority from the deceased or the court, to do that which can only be done by an executor or administrator, thereby perpetrates the acts of an executor de son tort.40

§ 1261. Acts of Conservation or Kindness.

It is not every intermeddling with the affairs of a decedent that constitutes one an executor de son tort. The nature of the acts done must be of an illegal character. Acts of kindness or charity may be performed without subjecting the person to liability as an executor of his own wrong." Where the intermeddling or interference is to conserve the goods of the deceased, the one so acting does not make himself liable12 unless the goods should be lost or destroyed through his negligence.43

Willingham v. Rushing, 105 Ga. 72, 31 S. E. 130; Claussen v. Lafrenz, 4 Greene (Iowa) 224; Turner v. Child, 12 N. C. (1 Dev. L.) 25, 133, 331, 17 Am. Dec. 555; In re Berger's Estate, 152 Mo. App. 663, 133 S. W. 96.

40 Johnston v. Duncan, 3 Litt. (Ky.) 163, 14 Am. Dec. 54.

41 Brown v. Sullivan, 22 Ind. 359, 421, 85 Am. Dec. 421; Rohn v. Rohn, 204 Ill. 184, 98 Am. St. Rep. 185, 68 N. E. 369.

"But there are many acts which a stranger may perform without incurring the hazard of such an executorship; such as looking up the goods; directing the funeral in a manner suitable to the estate which is left, and defraying the expenses of such funeral himself

or out of the deceased's effects; making an inventory of his property; advancing money to pay his debts or legacies; feeding his cattle; repairing his houses; providing necessaries for his children; for these are offices of kindness and charity."-Toller on Executors, p. 40.

42 Givens v. Higgins, 4 McCord L. (S. C.) 286, 17 Am. Dec. 742.

A widow by continuing to reside at the family home and by taking care of the estate until an executor has been appointed, does not render herself liable as executrix de son tort.-Ward v. Bevill, 10 Ala. 197, 44 Am. Dec. 478.

43 Hubble v. Fogartie, 3 Rich. L. (S. C.) 413, 45 Am. Dec. 775.

One may arrange for the funeral of a decedent and pay the funeral expenses and even debts and legacies, but if he does so with his own funds he is not an executor of his own wrong." And to defray funeral expenses he may even receive, for such purpose, debts due the estate of the decedent, and such acts do not make him liable as an executor de son tort unless the amount is out of proportion for the purpose required, according to the decedent's estate and position in life, this being a question of fact.45 In addition to making arrangements for the funeral of a decedent, one may also feed his cattle, make an inventory of his effects, pay his debts and legacies with his own money, make necessary repairs to his house, or provide his children with the necessities of life, without making himself chargeable as an executor de son tort.10

§ 1262. Acts of Servants, Agents, and Coadjutors.

47

One who acts merely as an agent, or as coadjutor or supervisor,1o is not chargeable as an executor de son

44 Godolph, pt. 2, ch. 8, §1; Swinb. Wills, pt. 4, § 3; Rohn v. Rohn, 204 Ill. 184, 98 Am. St. Rep. 185, 68 N. E. 369.

45 Camden v. Fletcher, 4 Mees. & Wel. 378, 1 H. & H. 361; Pettengill v. Abbott, 167 Mass. 307, 45 N. E. 748; O'Reilly v. Kelly, 22 R. I. 151, 84 Am. St. Rep. 833, 50 L. R. A. 483, 46 Atl. 681.

46 Bacon's Abr., tit. Exrs. & Admrs., B, 3, 1; Rohn v. Rohn, 204 III. 184, 98 Am. St. Rep. 185, 68 N. E. 369; Brown v. Sullivan, 22 Ind. 359, 85 Am. Dec. 421; Emery v. Berry, 28 N. H. 473, 61 Am. Dec. 622.

Where the husband died abroad and the widow, who had been left with a family to support, used certain of the husband's property for support of the family and the payment of the husband's debts, prior to hearing of his death, she was held not liable to the creditors as administratrix de son tort.-Brown v. Benight, 3 Blackf. (Ind.) 39, 23 Am. Dec. 373.

47 Padget v. Priest, 2 Term R. 97; Magner v. Ryan, 19 Mo. 196; givens v. Higgins, 4 McCord L (S. C.) 286, 17 Am. Dec. 742.

48 Stokes v. Porter, 2 Dyer 166.

tort. One who, as an agent, in good faith sells perishable property of the estate, is not so liable.49 A sale by a factor after the death of the principal, for the purpose of reimbursing himself for advances or expenses incurred, does not necessarily render him liable as an executor of his own wrong.50 Where an agent sold goods of an intestate in his lifetime and collected the purchase money after his death, he was not an executor de son tort, even as to creditors, because his right to collect was colorable, which gives character to the transaction as showing that it was not done as executor or as an officious intermeddler.51

If one acts for another whom he knows has no authority in the matter, he is liable. Thus, if an attorney at law or other person acting as agent of another known to him to be without authority or right, takes possession of the property of a decedent and converts it into money without administration, he is liable to the lawful administrator for the value of the property converted, without reference to whether or not he accounts to the person for whom he acts.52 Some decisions hold that the acts of one may render him liable as executor de son tort although he took possession of property as the innocent agent of another and delivered the property to his principal, the reason being that an executor of his own wrong can relieve himself from liability only by surrendering the property to the lawful executor or administrator.53

49 Perkins v. Ladd, 114 Mass. 420, 19 Am. Rep. 374.

50 Willingham v. Rushing, 105 Ga. 72, 31 S. E. 130.

51 Outlaw v. Farmer, 71 N. C. 31, 34.

52 Stevenson v. Valentine, 27 Neb. 338.

53 Sharland V. Loosemore, 5 Hare 469; Padget v. Priest, 2 Term R. 97; Hill v. Curtis, L. R. 1 Eq. 90; Attorney General v. New

§ 1263. Foreign Executor Taking Possession of Local Assets.

There is authority for holding that if a legally appointed foreign executor takes possession of personal property of the deceased in another state, he is liable as an executor de son tort.54 This doctrine has been criticised and it is said that a foreign executor is not such a stranger to the goods or debts of the decedent whom he represents, left in another state, as to be considered an intermeddler and chargeable as an executor de son tort when he goes into such other state and possesses himself of such property.55

§ 1264. Payment of Debts of Decedent by Executor De Son

Tort.

It may be said generally that an executor de son tort is subject to all the liabilities of a legal executor or administrator, without possessing his privileges.56 But there are certain acts which he may perform which are

York Breweries Co., (1898) 1 Q. B. 205.

Contra: Rohn v. Rohn, 98 Ill. App. 509; Magner v. Ryan, 19 Mo. 196; Givens v. Higgins, 4 McCord L. (S. C.) 286, 17 Am. Dec. 742; Perkins v. Ladd, 114 Mass. 420, 19 Am. Rep. 374.

54 Campbell v. Tousey, 7 Cow. (N. Y.) 64. See, also, Emery v. Berry, 28 N. H. 473, 61 Am. Dec. 622.

If an executor takes possession of personal property of the testator which is situated in a foreign country, and his action is contrary to the laws of such country, he is

liable as an executor de son tort in such foreign jurisdiction.-Attorney General v. New York Breweries Co., (1898) 1 Q. B. 205.

55 Marcy v. Marcy, 32 Conn. 308. See, also Beavan v. Hastings, 2 Kay & J. 724.

A foreign administrator who collects the assets of the intestate where such administration is had, and brings them into another state, does not make him liable in the last named jurisdiction as an executor de son tort.-Caruthers v. Moore, 1 Term Cas. 60.

56 2 Bl. Com. *507; Lord Cottenham, in Carmichael v. Carmichael, 2 Phillim. 101, 103.

valid, for if he pays the just debts of the decedent, such as the lawful representative would be required to pay, he may, in an action brought against him by a creditor, plead plene administravit, a plea that he has fully administered and has no assets of the estate.57 In such an action by a creditor and under such plea, the executor de son tort may show in defense that he has paid out the assets to other creditors in the same or in a superior degree;58 and under such plea the executor de son tort is not charged beyond the assets which came into his hands and were not properly paid out.59 Under such plea it is also proper to show delivery of the assets to the legal executor or administrator prior to the commencement of the action, but not after the action is brought, although at such time no lawful representative of the deceased had been appointed."0

In an action of trover or trespass brought against an executor de son tort by the lawful executor or administrator, the former can not plead that he has paid the debts of the decedent to the value of the assets received by him or that he has applied them to the payment of such debts, for this would take from the lawful representative the right to prefer one creditor to another, but such

57 Dyer 166; Coulter's Case, 5 Coke 30a; Smith v. Chapman, 93 U. S. 41, 23 L. Ed. 796; Tobey v. Miller, 54 Me. 480; Glenn v. Smith, 2 Gill & J. (Md.) 493, 20 Am. Dec. 452.

58 2 Bl. Com. **507, 508; Ayre v. Ayre, 1 Chan. Cas. 33; Whitehall v. Squire, Carth. 104, by Lord Holt; Mountford v. Gibson, 4 East 453, by Blanc, J.

59 Hooper V. Summersett, Wightw. 21; Yardley v. Arnold, Carr. & M. 434, 10 M. & W. 141; Oxenham v. Clapp, 2 Barn. & Ad. 309.

60 Williams Exrs. **219, 220. As to defenses which executor de son tort may interpose, see, post, §§ 1273, 1275.

As to manner of pleading defenses, see, post, § 1274.