EXECUTOR DE SON TORT. One who attempts to act as executor without lawful authority.
A person who, without any authority,' in termeddles with the estate of a decedent and does such acts as properly belong to the office of executor or administrator, thereby becoming a sort of quasi executor, though only for the purpose of beings• sued or made liable for the assets with which he tas -inter meddled. Grace v. Seibert, 235 Ill. 190, 85 N. E. 308, 22 L. R. A. (N. S.) 301; and such executor, having assumed a representative character, cannot deny it, and therefore suf fers all the liabilities of an executor with out acquiring the rights or privileges of such office ; id.
If a stranger takes upon him to act as ex ecutor without any just authority (as, by intermeddling with the goods of the de ceased, and many other transactions), he is called in law an executor of his own wrong, de son tort; 2 Bla. Com. 507; Bacon v. Par ker, 12 Conn. 213; Wilbourn v. Wilbourn, 48 Miss. 38; 14 E. L. & Eq. 510; Johnston v. Duncan, 3 Litt. (Ky.) 163, 14 Am. Dec. 54; White v. Cooper, 3 Pa. 130; Brown v. Wal ter, 58 Ala. ko ; Barron v. Burney, 38 Ga. 264. 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. Where a person with whom a will had been left filed It, but took out no letters with the will annexed, or any other legal au thority to administer on the estate, he be came an executor de son tort; Morrow v. Cloud, 77 Ga. 114.
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 preservation, burying the deceased in a manner suitable to his fortune, paying for the funeral expenses 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 houses, etc. Such acts are held to be offices of kindness and chari ty ; Magner v. Ryan, 19 Mo. 196; Emery v. Berry, 28 N. H. 473, 61 Am. Dec. 622. Nor does paying the debts of the deceased with one's own money make one an son tort; Carter v. Robbins, 8 Rich. (S. C.) 29; Bogue v. Watrous, 59 Conn. 247, 22 Atl. 31. Nor does one become executor de son tort by obtaining payment of a debt from an executor de son tort; 65 L. T. N. S. 709. The fact that a widow has taken possession of community property is not sufficient to au thorize suit against her on a note of her deceased husband; Vela v. Guerra, 75 Tex. 595, 12 S. W. 1127. As to what acts will ren der a person so liable, see Godolphin, Orph. Leg. 91; 1 Wms. Exec. 299; 1 Dane, Abr. 561; Bull. N. P. 48 ; Com. Dig. Administra tion (C 3); Rattoon v. Overacker, 8 Johns. (N. Y.) 126 ; In re Huff's Estate, 15 S. & R. (Pa.) 39; White v. Mann, 26 Me. 361; Chandler v. Davidson, 6 Blackf. (Ind.) 367.
An executor dc son tort is liable only for such assets as come into his hands, and is not liable for not reducing assets to posses sion ; Kinard's Adm'r v. Young, 2 Rich. Eq. (S. C.) 247; Roumfort 82 Pa. 193. And it has been held that he Is only liable to the rightful administrator ; Muir v. Trustees of Orphan House, 3 Barb. Ch. (N. Y.) 477 ; Brown v. Walter, 58 Ala. 310. But see Hansford v. Elliott 9 Leigh (Va.) 79; Swift v. Martin, 19 Mo. App. 488; 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; Buck minster v. Ingham, Brayt. (Vt.) 116; Fran cis v. Welch, 33 N. C. 215 ; Nass v. Van swearingen, 10 S. & R. (Pa.) 144; Brown's Ex'rs v. Durbih's Adm'r, 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 hcerede gestio. See Heinec cius, Antiq. Syntagma, lib. 2, tit. 17, § 16, p. 468.
An executor de son tort is an executor only for the purpose of being sued, and not for the purpose of suing; Francis v. Welch, 33 N. C. 215. He is sued as if rightful execu tor. But if he defends as such he becomes thereby also an executor de son tort; Lawes, Pl. 190, note ; Davis v. Connelly's Ex'rs, 4 B. Monr. (Ky.) 136; Gregory's Ex'rs v. Forrester, 1 McCord, Ch. (S. C.) 318 ; Hill v. Henderson, 13 Smedes & M. (Miss.) 688; Norfolk's Ex'r v. Gantt, 2 H. & J. (Md.) 435. When an executor de son tort takes out let ters of administration, his acts are legalized, and are to be viewed in the same light as if he had been rightful administrator when the goods came into his hands ; Magner v. Ryan, 19 Mo. 196; Shillaber v. Wyman, 15 Mass. 325; Rattoon v. Overacker, 8 Johns. (N. Y.) 126. But see, contra, Clements v. Swain, 2 N. H. 475. A voluntary sale by an execu tor de son tort confers only the same title on the purchaser that he himself had ; 6 Exch. 164 ; 20 1l L. & Eq. 145 ; Carpenter v. Going, 20 Ala. 587 ; Meigan v. McDonough, 10 Watts (Pa.) 287.
It is held that in regard to land no man can be an executor de son tort; Green v. Dewit, 1 Root (Conn.) 183; Nass v. Van swearingen, 7 S. & R. (Pa.) 192; id., 10 S. & R. (Pa..) 144. In Arkansas it is said that there is no such thing as a technical executor de son tort; Barasien v. Odum, 17 Ark. 122 ; Rust v. Witherington, id. 129; and so in Missouri; Retielle v. Harmon, 103 Mo. 339, 15 S. W. 432, 12 L. R. A. 187. See, on this subject, Smith v. Porter, 35 Me. 287; Leach v. Pillsbury, 15 N. H. 137 ; Grave's Adm'r v. Poage, 17 Mo. 91; Hardy v. Thomas, 23 Miss. 544, 57 Am. Dec. 152 ; Josey v. Rogers, 13 Ga. 478; Woolfork's rAdnfr v. Sullivan, 23 Ala. 548, 58 Am. Dec. 305 ; Simonton v. Mc Lane's Adm'r, 25 Ala. 353; Morrison v. Smith, 44 N. C. 399 ; Walworth v. Ballard, 12 La. Ann. 245 ; Lee v. Wright, 1 Rawle (Pa.) 149; Schoul. Ex'rs & Adm'rs § i84.