tort in construction of law, because he is liable to be sued as a trespasser by the rightful executor a. But if a stranger takes the goods, and claiming to be executor, pays the debts, or intermeddles as executor, he may be charged as executor of his own wrong, even though there was an executor regularly appointed b. Acts of kindness or charity do not make a person executor in his own wrong, as directing the funeral of the deceased, feeding his cattle, repairing his houses, or finding necessaries for his children c. A person who takes possession of the effects of the deceased under the authority of the rightful executor, cannot be charged as executor de son tort a. But if he continues to exercise any authority upon the goods after the death of such executor, he is chargeable as executor de son tort, though he act under the advice of another executor, who has not proved or administered e. A person who is permitted by an executor to possess himselt of part of the assets of a testator, who after the executor's death, and when there is no legal personal representative either of the testator or executor, retains the assets and acts in execution of the trusts of the will, is not an executor de son tort to the original testator f. Where A. had pledged goods to B. for a debt; B. died, and the parish officers took the goods and gave them to J., the carpenter who made the coffin of B., on condition of his paying B.'s rent and the funeral expenses; held, that by taking these goods, the parish officers became executors de son tort; and that, if they sold the goods to J., they would be liable to A. in trover, because such a sale was so inconsistent with the bailment as to revest the right of possession in A. But if the parish officers merely relinquished their possession, and let J. take possession, this would not make the parish officers liable Liability of an executor de son tort. in trover, as, in this case, a mere seizure of the goods by a stranger, who afterwards relinquished them, would not be a conversion a. What acts make a person liable as an executor de son tort, is a matter of law for the court to decide; but it is for the jury to say whether the acts be sufficiently proved . If a person sets up in himself a colourable title to the goods of the deceased, it is sufficient to exempt him from being charged as executor de son tort, although he be not able to establish a complete legal title ". An executor de son tort renders himself liable, not only to an action by the rightful executor or administrator, but also to be sued as executor by a creditor or legatee of the deceased d. If, in an action by a creditor, he pleads ne unques executor, and it be found against him, the judgment will be de bonis testatoris et si non, de bonis propriise. But if he pleads properly, he is not liable beyond the extent of the goods which he has wrongfully administered. Under a plea of plene administravit, he shall not be charged beyond the assets which came into his hands; and in support of this plea, he may give in evidence the payments by himself of the just debts of the deceased; or that he has delivered the assets to the rightful executor or administrator before action brought h; but such delivery after action brought would not be sufficient. An executor de son tort cannot, as against a creditor of the deceased, retain for his own debts, even though of a higher degree, and though the rightful executor or administrator has assented to such retainer k. But even after action brought by a simple contract creditor, he may pay a specialty debt, and plead it in bar of the action a. If an executor de son tort be sued by a rightful representative, in an action ex delicto, he may, under the general issue, give in evidence, in mitigation of damages, payments made by him in the rightful course of administration; but he cannot plead such payments in bar of the action; and though the payments proved to have been made by him, amount to the full value sought to be recovered, still the plaintiff will be entitled to nominal damages. But such payments will not be allowed in damages if there be a failure of assets, as the lawful executor would, by these means, be deprived of his right of preferring one creditor to another of equal rank, or of giving himself the same preference. And where an executor proved a will, and the probate was revoked in consequence of another executor having proved a subsequent will, and the first executor, with a knowledge of these facts, sold goods of the testator's; it was held, in an action of trover by the rightful executor, that the defendant was not entitled to shew, in mitigation of damages, that he had administered assets to the amount d. A creditor taking goods in payment from an executor de son tort, cannot protect himself against the rightful executor, although, if the payment be just, he shall be recouped in damages e. An executor de son tort has a sufficient title to maintain an action against a mere wrong-doer for the seizure of a chattelf. If he hands over goods, on which the deceased had a lien, it is not a conversion o. Oxenham v. Clapp, 3 B. & Ad. 309. But if he afterwards, or even pendente lite, obtains administration, he may retain; for it legalizes those acts which were tortious at the time. 1 Saund. 265. Yet it has been held, that a rightful administrator is not bound by an agreement made by him while he was executor de son tort. Doe v. Glenn, 1 Ad. & Ell. 49. 3 Nev. & M. 837. Bac. Ab. Exec. (B. 3.) 2. 2 Bl. Com. 508. Greysbrook v. Fox, An executor de son tort is uniformly declared against, as if he were lawful executor, though the party died intestate; and he may be joined in the same action with the lawful executor, though not with the lawful administratora. And if the husband of an executrix, after her death, detain part of the goods. of a testator, he may he sued as executor de son tort. SECTION III. Of the party entitled to ADMINISTRATORS. By the 31 Ed. III. s. 1. c. 11, the ordinary shall depute the next and most lawful friends of the dead person intestate to administer. administer his goods; and the 21 Hen. VIII. c. 5. s. 3. provides, that in case any person die intestate, or that the executors named in any testament, refuse to prove it, the ordinary shall grant administration " to the widow of the deceased, or to the next of kin, or to both, as by the discretion of the same ordinary shall be thought good." The same section further provides, "that where divers persons, equal in degree of kindred to the deceased, claim administration, the ordinary shall be at liberty to accept any one of them." The husband has a right, exclusively of all others, to be the administrator of his wife, even though the marriage be voidable, unless sentence of nullity be declared before her death; but he is not entitled to administration if the marriage be void, ab initio, as if the wife be of unsound mind e. And in case the husband dies without taking out administration to his wife, the court will grant administration to the next of kin of the wife, and not to the representatives of the husband. But such administrator shall be considered in equity as trustee for the representatives of the husband A widow has not a right to be appointed administratrix to her husband, the ordinary has his election to grant it to her or to the next of kin, or he may grant it to them both jointly "; or he may grant it to her as to part, and to the next of kin as to part. If a wife be divorced à mensa et thoro, she forfeits her right to the administration ©. If a bastard, who is nullius filius and has no kindred, dies intestate, and without wife or child, the crown is entitled to administration, subject to the debts of the intestate d. But the practice in such cases is, to transfer the claim of the crown by letters patent; and the ordinary grants administration to the appointee. If the ordinary refuses to grant administration in case of intestacy, pursuant to the directions of the statutes, the court of King's bench, will compel him by mandamus. But where the ordinary has an election, the court will not compel him to grant administration to any particular party, so as to deprive him of the election, but they will oblige him to grant it to some party 8. If none of the next of kin will take out administration, a creditor may by custom do it h SECTION IV. ADMINISTRATION CUM TESTAMENTO ANNEXO. to whom tration If the deceased makes a will and appoints no executor, or if When and through any cause an executor fails to act, as if he does not adminisprove the will, or if after having proved it he dies intestate, without having administered the goods of the testator, the ordinary must grant an administration with the will annexed i. In such cases as are not within the statutes, which are almost cum testa mento an nexo will |