if not, to a residuary legatee in the case of a will(s), or to the next of kin of the person entitled to administration in the case of intestacy (t). In a case where a widow administratrix became lunatic, the court declined to revoke the administration, but granted administration to the son of the deceased, the letters granted to the widow being first brought into and impounded in the registry, in order to be re-delivered out in case of her recovery (u). In a case where one of two executors became lunatic, the court granted a fresh probate, (the former probate having been brought in,) with power reserved of making a like grant to the lunatic, when he should become of a sound mind and apply (x). IV. Of an Executor de son Tort. An executor de son tort is a person who, without any authority derived from the deceased or ordinary (Court of Probate), does such acts as belong to the office of an executor or administrator. As to the acts which will render a person liable as executor de son tort, it will be observed: 1st. In the case of intestacy, if a stranger takes the goods of the intestate, and uses or sells them, this will make such stranger an executor de son tort (y); although it be done by the order of the intestate himself(z). But a person who knowingly receives a chattel from an executor de son tort, and deals with it as his own, does not thereby become such executor (a). 2ndly. In the case of a will, and a regular appointment of an executor, who proves the will; if a stranger takes the goods, and, claiming to be executor, pays debts, &c., and intermeddles, as executor, he may, for such express administration as executor, be charged as an executor de son tort, although there is another executor of right (b). But if, after the executor has proved the will, and administered, a stranger takes any of the goods, and, claiming them as his own, uses and disposes of them accordingly, this will not make him in construction of law an executor de son tort; because there is a rightful executor, who may be charged with these goods so taken from his possession, as assets, and to whom the stranger will be answerable in trespass for taking the goods. 3rdly. In the case of a will, if a stranger takes the goods before the rightful executor has proved the will or taken upon him the execution thereof, the stranger may be charged (s) In the goods of Milnes, 3 Add. 55. (t) Exp. Evelyn, 2 M. & K. 3. (u) In the goods of Binckes, 1 Curt. 286; and see 1 Cas. Temp. Lee, 625. (x) In the goods of Marshall, 1 Curt. 297. (y) Read's case, 5 Rep. 33, b. (a) Paull v. Simpson, 9 Q. B. 365. (b) This was denied by Lord Kenyon, in Hall v. Elliott, Peake's N. P. C. 87, and by Sir T. Plumer, in Tomlin v. Beck, T. & R. 438; those judges maintaining that there cannot be a rightful executor and an executor de son tort at the same time. But see Cottle v. Aldrich, post, 776. as an executor de son tort; for the rightful executor shall not be charged with any goods except those which came to his hands after he had taken upon him the charge of the will (c). The slightest acts have been deemed sufficient to constitute an executor de son tort; as where a widow milked her late husband's cows, or took a dog (d). But locking up the goods of the intestate for preservation, making an inventory of his property, feeding his cattle, &c., are not sufficient, for these are offices merely of kindness or charity (e). So living in the house and carrying on the trade of the deceased, a victualler, was held sufficient (f). But where the trade was one depending on personal skill, as that of a hairdresser, and though the shop was kept open, it was shown that the entry to the house lay through it, and no evidence was given of any articles being sold; it was held, that the widow of the hairdresser was not executrix de son tort (g). If a creditor takes an absolute bill of sale of the goods of his debtor, but agrees to leave them in his possession for a limited time, and in the meantime the debtor dies, whereupon the creditor sells the goods, he thereby becomes an executor de son tort (h). Where a party receives a debt due to the estate of a person deceased for the purpose of providing the funeral, he will not thereby become chargeable as executor de son tort, unless he receive a greater sum than is reasonable for that purpose, regard being had to the estate and condition of the deceased, which is a question for the jury (i). But a single act of wrong in taking the goods of the intestate, though it may be sufficient to make the party an executor de son tort, with respect to creditors who may choose to sue him in that character, yet will not give him any right to retain them as against the lawful administrator. In trover for a quantity of iron, it appeared that the goods in question had been originally sold by the defendant to the intestate; that on his death, they not having been paid for, the intestate's widow delivered them back to the defendant in satisfaction of his demand. No other acts were stated to have been done by the widow, to show that she had before taken upon herself to act as executrix. It was held, that the plaintiff, as rightful administrator, was entitled to recover the value of the goods (j). Where, however, the executor de son tort is really acting as executor, and the party with whom he deals has fair reason for supposing that he has authority to act as such (which is a question for the jury), his acts (done in due course of administration (k)) will bind the rightful executor (l). (c) Read's case, 5 Rep. 34, a. (d) Dyer, 166, b., in marg. (e) Wins. on Exors. 230 (5th edit.). (f) Hooper v. Summerset, Wightw. 16. (g) Serle v. Waterworth, 4 M. & W. 9. The jury are to determine whether the acts are sufficiently proved; but the question, whether executor de son tort, or So where a debtor of the deceased handed over money and securities to a feme covert executrix, whose husband subsequently dissented from her acting; it was held, that the debtor was discharged as against the co-executor (m). A. 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 B.'s coffin, on condition of his paying B.'s rent and the funeral expenses; it was 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. (n). A person who possesses himself of the effects of the deceased, under the authority, and as agent for, the rightful executor, cannot be charged as an executor de son tort (o). But as soon as the principal in such a case dies, the agent, if he continues to act, although by the advice of another executor who has not proved, is liable (p). A person who sets up in himself a colourable title to the goods of the deceased, e. g. a lien, though he may not be able to make out his title completely, is not liable as executor de son tort (q). The plaintiff having received a horse belonging to the intestate from the defendant in remuneration of services performed at the request of the defendant about the funeral of the intestate, afterwards administered to the estate, and brought trover against the defendant for the value of the horse, so received by himself before he became administrator. It was held by Dolben and Eyres, Js., that the plaintiff, being a particeps criminis in the very act he complained of, should not be permitted to recover upon it against the person with whom he had colluded. But Holt, C. J., was of a different opinion, conceiving that in this case, if a stranger, or third person, had taken out letters of administration, an action might have been maintained against the defendant by such an administrator for the recovery of the horse; and here the plaintiff was a third person; for being administrator, he sued, and should recover, in the right of the intestate (r). An act done by a person as executor de son tort will not bind him after he becomes rightful administrator (s). An executor de son tort must be declared against as a rightful executor (t). See further on the subject of executor de son tort, post, p. 798," Of the Right of Retainer." (m) Pemberton v. Chapman, 27 L. J., Q. B. 429 (in error), diss. Bramwell, B., and Cockburn, C. J. (n) Samuel v. Morris, 6 C. & P. 620. (q) Flemings v. Jarrat, 1 Esp. 336. (r) Whitehall v. Squire, Carth. 103. (s) Doe v. Glenn, A. & E. 49; Middleton's case, 5 Rep. 28, b. See Lucy v. Walrond, ante, p. 770. (t) Alexander v. Lane, Yelv. 137. V. Of the Disposition of the Estate of the Deceased. The order of payment, which ought to be observed by executors and administrators in the disposition of the estate of the deceased, is as follows:— 1. Funeral charges, and expenses of probate, or taking out letters of administration (u).—An executor who gives no order for the funeral, is liable only to the extent of the expenses suitable to the rank and circumstances of the testator, unless he, as an individual, and not in his character of executor, ratifies the orders given, in which case he is liable for the whole expense. Brice v. Wilson, 8 A. & E. 349, n. Whether the funeral is ordered by the executor or another person, the estate must pay the reasonable expenses, and can in no event be liable beyond them. Green v. Salmon, 8 A. & E. 348. See also Lucy v. Walrond, 3 B. N. C. 841, ante, p. 770. But if there are assets, the allowance shall be according to the estate and degree of the deceased. In Stag v. Punter, 3 Atk. 119, the testator having desired to be buried at a church thirty miles distant, and it not being clear that there would be a deficiency, Lord Hardwicke, Ch., allowed 601. for funeral expenses. So in Offley v. Offley, Prec. Ch. 26, 600l. were allowed, in respect of the testator's quality, and his having been buried in his own country. As against a creditor no funeral expenses are in strictness allowed, except for the coffin, ringing the bell, the parson, clerk, and bearers' fee; but not for the pall or ornaments. Per Holt, C. J., in Shelley's case, Salk. 296. The usual method is to allow 51. Bull. N. P. 143. This sum was allowed by Lord Hardwicke, C. J., in Smith v. Davis, Midd. Sitt. after M. T. 10 Geo. II. MS. As against a creditor, the rule of law is, that no more shall be allowed for funeral expenses than is necessary; and in considering what is necessary, regard must be had to the degree and condition in life of the party; Hancock v. Podmore, 1 B. & Ad. 260, in which case 791. was held to be too large a sum as against a creditor for the funeral expenses of a captain in the army on half-pay. See Edwards v. Edwards, 2 Cr. & M. 612. 2. Debts due to the king, by record or specialty.-Fines and amerciaments, in the king's courts of record, are debts of record. Went Off. Exor. ch. 12. By 33 Hen. VIII. c. 39, s. 50, it is enacted, that all obligations and specialties for any cause concerning the King shall be taken domino regi, and shall be of the same force and effect as a statute staple. By the 55 Geo. III. c. 184, s. 45, the Commissioners of Stamps may give credit for the duties on probate, &c.; and by sect. 48, the duty for which credit is so given shall be a debt to the Crown, and be paid in preference to any other debt whatsoever. (u) 1 Roll. Abr. 926, (S.) pl. 1; Dr. & Stud. Dial. 2, c. 10. 3. Debts due by certain statutes, e. g. to the post-office, not exceeding 5l. (x); from an overseer of the poor; 17 Geo. II. c. 38, s. 3; by which act executors of an overseer are directed to pay, out of his assets, all monies due received by virtue of his office" before any of his other debts are paid and satisfied" (y). A similar provision is contained in 18 & 19 Vict. c. 63, s. 23 (z), respecting executors of persons intrusted with the monies or effects of friendly societies; and by 3 & 4 Will. IV. c. 14, s. 28, respecting executors of officers of savings banks. By 58 Geo. III. c. 73, s. 1, the regimental debts of officers and soldiers dying in actual service are to be paid in preference to any other debts whatsoever. 4. Debts by judgments in the Court of King's Bench, Common Pleas, and Exchequer; by judgments in other courts of record; by decrees in courts of equity (a); according to their respective priorities. By 1 & 2 Vict. c. 110, s. 18,--All decrees and orders of courts of equity, and all rules of courts of common law, and all orders of the Lord Chancellor, or Court of Review in bankruptcy, or of the Lord Chancellor in lunacy, whereby any sum of money or any costs, &c., are payable to any person, have effect as judgments of the superior courts of common law. An order of a court of equity for the payment of money into the Bank, in the name of the Accountant-General, to the credit of a cause, is not an order within this section (b). But a judge's order (under 6 & 7 Vict. c. 73, s. 43), on the taxation of an attorney's bill, ordering judgment to be entered up for the amount found by the master's allocatur, has the same effect as a rule of court under this section (c). At common law, executors and administrators were bound at their peril to take conusance of debts of the testator upon record. Hence, to an action on a judgment recovered against the testator or intestate, executors or administrators could not plead, that they had exhausted the assets in payment of debts of an inferior nature without notice of the judgment (d). To obviate the mischiefs to which personal representatives were liable, from the difficulty of finding such judgments, the 4 & 5 W. & M. c. 20 (made perpetual by 7 & 8 Will. III. c. 36, s. 3), directed, that the proper officers of the Courts of Common Pleas, King's Bench, and Exchequer, should make a doggett of all judgments (sect. 2), and that no judgments not doggetted should have any preference against executors and administrators in the administration of their testator's or intestate's estates (sect. 3). The construction put on this section was, that the judgments not doggetted were thereby placed on a level with simple contract debts. Hickey v. Hayter, 6 T. R. 384. (x) 9 Ann. c. 10, s. 30. (y) See Wms. on Exors. 897 (5th ed.). (2) A re-enactment in substance of 4 & 5 Will. IV. c. 40, s. 12. (a) Searle v. Lane, 2 Vern. 88; Bishop v. Godfrey, Prec. in Chanc. 179 (Finch's (b) Gibbs v. Pike, 8 M. & W. 223. |