EXECUTOR DE SON TORT. One. who attempts to act as executor without law, ful. authority.
2. If a stranger takes upon him to act as executor without any just authority (as, by intermeddling with the goods of the deceased, and many other transactions), he is called in law an executor of his own wrong, de son tort. 2 Blackstone, Comm. 507 ; 4 M'Cord, So. C. 286 ; 12 Conn. 213 ; 8 Miss. 437 ; 14 Eng. L. & Eq. 510 ; 3 Litt. Ky. 163. If a man kill the cattle of the testator, or take his goods to satisfy a debt, or collect money due him, or pay out such money, or carry on his business, or take possession of his house, etc., he becomes an executor de son tort.
3. But a stranger may perform many acts in relation to a testator's estate without be coming liable as executor de son tort. Such are locking up his goods for pi eseivatim, burying the deceased in a manner suitable to his fortune, paying for the funeral ex penses and those of the last sickness, making an inventory of his property to prevent loss or fraud solely, feeding his cattle, milking his cows, repairing his house, etc. Such acts are held to be offices of kindness and charity. 19 Mo. 196 ; 28 N. H. 473. Nor does paying the debts of the deceased with one's own money make one an executor de son tort. 8 Rich. So. C. 29. As to what acts will ren der a person so liable, see Godolphin, Orpb. Leg. 91 ; 1 Dane, Abr. 561 ; Buller, Nisi P.48; Comyns, Dig. Administration (C 3); 8 Johns. N. Y. 426 ; 15' Serg. & R. Penn. 39 ; 26 Me. 361 ; 6 Blackf. Ind. 367.
4. An executor de son tort is liable only for such assets as come into his hands, and is not liable for not reducing assets to posses sion. 2 Rich. Eq. So. C. 247. And it has been held that he is only liable to the right ful administrator. 3 Barb. Ch. N. Y. 477. But see 9 Leigh, Va. 79 ; 2 M'Cord, So. C. 423, which imply that he is also liable to the heir at law. He cannot be sued except for
fraud, and he must be sued as executor. 1 Brayt. Vt. 116 ; 11 Ired. No. C. 215 ; 3 Penn. St. 129 ; 5 J. J. Marsh. Ky. 170. But in general he is liable to all the trouble of an executorship, with none of its profits. And the law on this head seems to have been borrowed from the civil-law doctrine of pro hceredi gestio. See Heineccius, Antiq. Syn tagma, lib. 2, tit. 17, 16, p. 468.
5. An executor de son tort is an executor only for the purpose of being sued, and not for the purpose of suing. 11 Ired. No. C. 215. He is sued as if rightful executor. But if he defends as such he becomes thereby also an executor de son tort. Lawes, Plead. 190, note • 4 B. Monr. Ky. 136 ; 1 M'Cord, Ch. So. C. 318 ; 21 Miss. 688 ; 2 Harr. & J. Md. 435. When an executor de son tort takes out letters of administration, his acts are legal ized, and are to be viewed in the same light as if he had been rightful administrator when the goods came into his hands. 19 Mo. 196 ; 15 Mass. 325 ; 4 Harr. Del. 108 ; 8 Johns. N. Y. 126. But see, contra, 2 N. H. 475. A volun tary sale by an executor de son tort confers only the same title on the purchaser that he himself bad. 6 Exch. 164 ; 20 Eng. L. & Eq. 145 ; 15 Jur. 63 ; 20 Ala. N. s. 587.
6. It is held that in regard to land no man can be an executor de son tort. 1 Root, Conn. 183 ; 7 Serg. & R. Penn. 192 ; 10 id. 144. In Arkansas it is said that there is no such thing as a technical executor de son tort. 17 Ark. 122, 129. Other recent cases on this subject are, 35 Me. 287 ; 15 N. H. 137 17 Mo. 91 ; 23 Miss. 544 ; 13 Ga. 478 ; 23 Ala. N. s. 548 ; 25 id. 353 ; Bush. No. C. 399; 12 La. Ann. 245, 344.