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sect or denomination of religion, or in aid schools of Caddo parish with reading from of any priest, preacher, minister or teacher the Bible” is the equivalent of a command thereof, as such, and no preference shall ever to them to do so. To request that the daily be given to, or any discrimination made session should be opened with Bible reading against, any church, sect or creed of religion, and the offering of the Lord's Prayer is to or any form of religious faith or worship,” say that the exercises for the day shall beetc.
gin with such reading and prayer. And the Therefore, while we are grateful to God request of the employer that the employees for religious freedom, with other blessings, should do so as a part of the regular exerwe may not interfere with any citizen's cises in the schools is an order to that natural right to also worship that same God effect. according to the dictates of his own con- The "lessons and truths” contained in science. The Jew will be permitted without the Holy Bible to be taught through readinterference to worship God according to his ing by the teachers from the Bible to the conscience, and so will all others. children of the school, for the purpose of
Does the resolution under consideration teaching morality, are read and taught as interfere with the natural rights of these teachings from the inspired Word of God plaintiff's to worship God, or to have their Himself. To read the Bible for the purpose children worship God, according to the dic-stated requires that it be read reverently tates of their consciences, or does it give a and worshipfully. As God is the author of preference to Christians, and discriminate the Book, He is 'necessarily worshipped in against Jews!
the reading of it. And the reading of it While the resolution simply requests forms part of all religious services in the principals and teachers of the public schools Christian and Jewish churches, which use of Caddo parish to open the daily sessions the Word. It is as much a part of the with reading from the Bible, without note religious worship of the churches of the or comment, the preamble to the resolution land as is the offering of prayer to God. shows that this reading is for the purpose The general policy of the government alof teaching children “at the most impres- ways is to avoid with care any compulsion sionable age" "lessons and truths contained which infringes on the religious scruples of within the Holy Bible” as being "of para any, however little reason may seem to mount value in creating and maintaining a others to underlie them. Cooley, Const. better moral atmosphere” in the community Lim. p. 585. The reading of the New Testaat large, and also in the individual life. ment as the Word of God infringes on the
The "lessons and truths” may be taught religious scruple of the Jews. The disfrom the New Testament, as well as the Old crimination against them, and the inequal. Testament. The Christian parents might ity of rights and privileges, are manifest not be heard to object to "the lessons and by such requirement. truths contained within the Holy Bible” be. The subjection by school authorities of ing taught to their children for the purpose Jewish children to Christian worship is forof inculcating morals, because they profess bidden by the Constitution, which guaranto believe in the inspiration of the whole tees to every person the natural right to Word. Put with the Jew it is different. He worship God according to the dictates of denies that the New Testament is the word his conscience. “Before the Constitution of God, and he denies our Savior. He does Jews and Gentiles are equal; by the law not deny most of the moral teachings of they must be treated alike; and the ordiJesus Christ, but he denies His divinity and
which gives to one sect a His resurrection.
privilege which it denies to another, vioAnd, as he is guaranteed “the natural lates both the Constitution and the law, and right to worship God, according to the dic- is therefore null and void.” Shreveport v. tates of his conscience,” und as the resolu- Levy, 26 La. Ann. 671, 21 Am. Rep. 553. tion in question permits "lessons and It is a fact that the reading of the Bible truths” to be read or taught from the New is religious instruction, and that when the Testament, particularly concerning the Son New Testament is read it is Christian inof God and His resurrection from the dead, struction. The character of the Book is that etc., it gives a preference to the children of it is a pious one, and it is essentially relithe Christian parents, and discriminates gious. It is not adapted for use as a textagainst the children of the Jews. The reso. book for the teaching alone of reading, hislution is therefore violative of the Consti- tory, or of literature, without regard to its tution.
religious character. Such use would be inThe request made by the board of school consistent with the true character and the directors of Caddo parish that the principals reverence in which the Scriptures are held, and teachers in its employ and under its , and should be held. control "open daily sessions of the public To permit the teacher to select the part
of the Bible to be read without test whereby of Caddo and the parish superintendent to determine the selection is to allow any from enforcing or carrying into effect the part, or all parts, to be selected. One of resolution of said board requesting the printhe most important forms of instruction is cipals and teachers to open the morning sesthat of reading; and it is impossible to read sions of the public schools of Caddo parish from the New Testament without giving in- by reading from the Bible, without note or structions in Christianity. It (the New comment, and the offering of the Lord's Testament) is the foundation and text-book Prayer. In all other respects the petition of Christianity, based on the teachings con- of plaintiffs is denied; defendants to pay tained therein that Christ is divine. And costs in all courts. the lessons therefrom give a preference to Christians, and at the same time make a Land, J., recused on account of relationdiscrimination against the Jews. “The ship to one of the parties. more enlightened opinion of the present day denies the duty [to teach religion in the Provosty, J., concurs in the opinion, public schools], and affirms that any step in adding, however, that according to his unthat direction is in greater or less degree derstanding the objection of the Catholic a species of persecution of those whose Church to the popular reading of the Bible views are not favored, and therefore incom- relates only to the Old Testament, owing to petent, in any country whose political in- certain passages therein, the reading stitutions are based upon the principles of whereof might do more harm than good to equality before the law. Religious instruc- the uninstructed. tion is, therefore,
referred exclusively to the voluntary action of the people.” Petition for rehearing denied April 12, Cooley, Taxn. 197.
1915. The answer made by defendants that “in all of said schools the said teachers might with due propriety have excused from attendance on such exercises the children of
NEBRASKA SUPREME COURT. said plaintiffs and others of similar belief, if so requested by the students or their par
H. J. LENDERINK, Admr., etc., of Robert
Reed, Deceased, ents or guardians," is an admission of discrimination against the children of those
B. F. SAWYER et al., Appts. citizens whose consciences would not permit them to worship God as taught in the par
(92 Neb. 587, 138 N. W. 744.) ticular portion of the Scriptures selected and read by the teacher of the class in Coroner sale of decedent's property which the children of said citizens happened liability. to be.
1. Where the defendant, who was the Under such circumstances, the children
coroner of Dakota county, and his surety, would be excused from the opening exer
the defendant company, were sued by the cises of the school because of their religious Reed, deceased, who sought to recover from
administrator of the estate of one Robert beliefs. And excusing such children on re
them the value of certain personal property ligious grounds, although the number ex
which had belonged to said Reed at the time cused might be very small, would be a dis- of his death, and which had been sold by tinct preference in favor of the religious the defendant coroner immediately after the beliefs of the majority, and would work a death of the deceased, and to enable him to discrimination against those who were ex- pay the necessary expenses of the funeral, cused. The exclusion of a pupil under such and he had sold the property for its full circumstances puts him in a class by him- and fair value, and had used the proceeds self; it subjects him to a religious stigma; nephew of the deceased and his son, held:
for that purpose, and at the request of the and all because of his religious belief. (1) That the defendants were entitled to Equality in public education would be destroyed by such act, under a Constitution Note. - Allowance to executor de son which seeks to establish equality and free
tort of disbursements or payments. dom in religious matters. The Constitution
In general. forbids that this shall be done. It is therefore ordered, adjudged, and de
“An executor de son tort is a person who, creed that the judgment of the District without authority, intermeddles with the esCourt be annulled, avoided, and reversed.
tate of a decedent, and does such acts as It is further ordered, adjudged, and de properly belong to the office of an executor
or administrator, and thereby becomes a creed that there be judgment in favor of sort of quasi executor, although only for plaintiffs and against defendants, enjoining the purpose of being sued or made liable for the board of school directors of the parish' the assets with which he has intermeddled.
set off the money paid out for the necessary, course of administration. As the adminisexpenses of the funeral against the plain-trator of the estate of the deceased would tiff's claim. (2) That the district court be bound to pay the funeral expenses, if having the parties before it, and having they were not already paid, he cannot comjurisdiction of the subject matter and the plain because the coroner paid them. parties, should adjudicate and determine the whole matter, instead of rendering judg
(November 27, 1912.) ment against the defendants and then sending the coroner to the county court to file claims against the estate, thereby unneces- of the District Court for Dakota County sarily increasing the expenses of the liti- in plaintiff's favor in an action brought to gation.
recover the value of personal property of deExecutor de son tort personal lia- ! ceased sold by defendant Sawyer for the pay. bility.
ment of funeral expenses. Reversed. 2. Under the facts shown, the defendant
The facts are stated in the opinion.
Mr. Paul Pizey, for appellants: acts of an executor de son tort which are
The demand on Sawyer should have been lawful and such as the true representative for the property, not for an accounting, and would be bound to perform in the due upon a refusal of the demand, the action The designation is inapt in that it applies, urally, it seems, that, upon reason and the term 'executor' to intestate as well as principle, while an executor de son tort testate estates, and also in that it gives to should receive no benefit from his wrongful a person who has merely incurred a certain interference with the estate, as, for inlinbility by reason of his intermeddling an stance, by being allowed to retain for a official title corresponding with that of a debt owing to him by the deceased, he should duly appointed representative, and in many nevertheless, as general rule, be entitled to states the so-called office of executor de son protection in those disbursements and paytort has been abolished by statute, while ments made by him which a rightful reprein others it is considered inconsistent with sentative in the due course of administrathe prevalent system of administration." tion would have been bound to make. For 18 Cyc. 1354.
while in a few cases, at least, where the The question under investigation in this common law is still in force, the wrongful note, as the title indicates, is whether or executor, by interfering and making such not, and in what circumstances, an executor disbursements or payments, may deprive de son tort is entitled to an allowance or the rightful representative of his right to credit for disbursements or payments made retain for his own debt (a right which has by him in respect to the estate with which been greatly modified in this country by he has intermeddled. In the main the note, statute), his interference in such a manner while including a few cases decided under as a usual thing constitutes no detriment modern statutes abrogating or modifying either to the estate itself, or to the rights the common-law office of executor de son of parties interested therein.
It seems, tort, is not concerned with the rights of therefore, that the principle enunciated is intermeddlers under such statutes to credits, sufficient to discourage indiscriminate interalthough it is believed, from the few ex- ference with decedent estates, and at the emplary cases here included, that, in the same time accord justice where justice is absence of anything to the contrary, the due; and such, apparently, is the view taken rules of the common law would apply. And by the great majority of courts. cases like Spruance v. Darlington, 7 Del. And since ordinarily, in the due course Ch. 111, 30 Atl. 663, as to the right of an of administration, where the estate is inexecutor under a revoked will to credits in solvent, the rightful representative would an action by the executor or administrator be bound to pay only that proportion of the under the revoking will, and like Ellis v. debts which the law allows, an executor de Ellis  1 Ch. 613, 74 L. J. Ch. N. S. son tort, it would seem, should receive 296, 53 Week. Rep. 617, 92 L. T. N. S. 727, credit only for that proportion of the debts as to an administrator appointed by sup- which the rightful representative would be pressing a will appointing an executor, are bound to make. See Leach v. Prebster, 35 not regarded as within the scope of this Ind. 419; but see also, in the same connecarticle.
tion, De la Guerra v. Packard, 17 Cal. 183, As the very name itself indicates, an and M'Carthy v. Donovan, 13 Ir. C. L. Rep. executor de son tort is a wrongdoer, an in- 195. truder, and intermeddler; but frequently In accord with the principle that an exhis acts are prompted by good motives, and ecutor de son tort shall receive no benefit often result in no detriment either to the from his wrongful interference, and to disestate or to the rights of creditors thereof courage a race between creditors to get posor other interested parties. This being the session of decedent estates, the rule is well situation, it is interesting to know what established that such an executor is not course the law, in the light of its policy of entitled to retain in satisfaction of his own discouraging wrongdoing and fostering fair debt. Alexander v. Lane, Yelv. 137; Prince play, pursues in regard to such executor. v. Rowson, 1 Mod. 208; Curtis v. Vernon,
It suggests itself at once and quite nat-13 T. R. 587, 2 H. Bl. 18, 1 Revised Rep
should have been brought for the value of, the defendants, for conversion, for the reathe property, not the amount received by son that defendant Sawyer could at most be Sawyer.
regarded merely as an executor de son tort, Kendall v. Duluth, 64 Minn. 295, 66 N. W. and as such would be permitted an offset to 1150; Daggett v. Gray, 110 Cal. 163, 42 Pac. the extent of his reasonable charges, against 568; Moynahan 1. Prentiss, 10 Colo. App. any claim of the estate against him. 295, 51 Pac. 94; Saratoga Gas & Electric 18 Cyc. 1363; Crispin v. Winkleman, 57 Light Co. v. Hazard, 55 Hun, 251, 7 N. Y. Iowa, 523, 10 N. W. 919. Supp. 814.
Mr. J. J. McCarthy, for appellee: If there is any liability it would be per- The action is one that the plaintiff could sonal with Sawyer, and this suit is only not have brought in his individual capacity, upon the bond.
and it makes a difference whether he is deOttenstein v. Alpaugh, 9 Neb. 237, 2 N. W. scribed “administrator" or "as adminis219; Dewey v. Kavanaugh, 45 Neb. 233, 63 trator of the estate of Robert Reed, deN. W. 396; State v. Moore, 56 Neb. 82, 76 ceased." V. W. 474; State v. Porter, 69 Neb, 203, 95 18 Cyc. 978; Williams v. Eikenbary, 36 N. W, 769.
Neb. 478, 54 N. W. 852. There can be no liability on the part of The statute under hich this action was 774; Oxenham v. Clapp, 2 Barn. & Ad. 309, course of administration. Whitehall 9 L. J. K. B. 229; Coulter's Case, 5 Coke, Squire, Carth. 104; M'Carthy v. Donovan, 30a ; Ayre v. Ayre, 1 Ch. Cas. 33; Feather- 13 Ir. C. L. Rep. 195; Carpenter v. Going, stone v. West, Ir. Rep. 6 Eq. 86; De la 20 Ala. 587; Glenn v. Smith, 2 Gill & j. Guerra v. Packard, supra; Leach v. House, 493, 20 Am. Dec. 452; Weeks v. Gibbs, 9 1 Bail. L. 42; Cook v. Sanders, 15 Rich. Mass. 74; Hardy v. Thomas, 23 Miss. 544, L. 63, 94 Am. Dec. 139; McMeekin v. Hynes, 57 An. Dec. 152; Rutherford v. Thompson, 80 Ky. 343; Partee v. Caughran, 9 Yerg. | 14 Or. 236, 12 Pac. 382; Saam v. Saam, 4 460; Sharp v. Caldwell, 7 Humph. 415; Watts, 432; Cooper v. Eyrich, 41 W. N. C. Winn v. Slaughter, 5 Heisk. 191; Glenn v. 370; Gilfillen's Appeal, 170 Pa. 185, 50 Smith, 2 Gill & J. 493, 20 Am. Dec. 452; | Am. St. Rep. 760, 32 Atl. 585 (dicta) ; Baumgartner v. Haas, 68 Md. 32, 11 Atl. Roumfort v. McAlarney, 82 Pa. 193 (dicta). 588: Seal v. Baker, 2 N. H. 477; Turner And see infra, Roggenkamp v. Roggenkamp, v. Child, 12 N. C. (1 Dev. L.) 331, 17 Am. / 15 C. C. A. 600, 32 U. S. App. 453, 68 Fed. Dec. 555; Hill v. Henderson, 13 Smedes & 605; and McConnell v. McConnell, 94 111. M. 688.
295. An executor of his own wrong cannot In Glenn v. Smith, 2 Gill. & J. 493, 20 retain any part of the deceased's goods to Am. Dec. 452, the court, after stating that satisfy his own debt, for, as the court in if sued by a creditor an executor de son tort Coulter's Case, 5 Coke, 30a, points out: may plead plene administravit, said: "From thence would ensue great incon- “There is, however, a difference between a venience and confusion, for every creditor suit by a creditor against an executor de son (and chiefly when the goods of the deceased tort and one by a rightful executor or adminare not sufficient to satisfy all the credi- istrator. If the action by the latter be trovtors) would contend to make himself ex- er for the goods of the deceased, the defendecutor of his own wrong, to the intent to ant cannot plead payment of debts to the satisfy himself by retainer, by which others value, or that he has given the goods in satwould be barred. And it is not reasonable isfaction of the debts. But on the general that one should take advantage of his own issue pleaded, he may give in evidence such wrong; and if the law should give him such payments, and they will be recouped in dampower, the law would be the cause and occa- ages, if they be such as the plaintiff would sion of wrong, and of the wrongful taking have been bound to make, or, in the lanof the goods of the deceased. And the law guage of some of the books, made in the of God saith, non facias malum ut inde fiat due course of administration. bonum, & melius est omnia mala pati, quam In Whitehall v. Squire, Carth. 104, it malo consentire."
was said that the wrongful executor could
not plead payment of debts to the value, Suit by rightful representative.
or that he had given the goods in satisfac
tion of the debts, because no man ought At common law, where the rightful execu- to obtrude himself on the office of the other. tor or administrator sues the executor de Quoting from Williams on Executors, 5th son tort, if the action be trover for the ed. p. 236, Monahan, Ch. J., in M'Carthy goods of the deceased, the defendant cannot v. Donovan, 13 Ir. C. L. Rep. 195, says: plead payment of debts to the value, or that “With respect to the liability of an executor he has given the goods in satisfaction of de son tort, at the suit of the lawful reprethe debts; but, on the general issues plead-sentative of the deceased, there are several ed, he may give in evidence such payments, authorities to show that if the rightful and they will be recouped in damages if executor or administrator bring an action they be such as the plaintiff would have of trover or trespass, the executor de son been bound to make: or, in the language tort may give in evidence, under the general of some of the books, made in the due issue and in mitigation of damages, pay. brought embraces such property as was sold | Reed, deceased. It appears that one Robert by Sawyer, and the defendant bonding com- Reed died intestate at his home in Dakota pany must be held liable.
county while living alone; that when his Harris v. Allen, 15 Fed. 106; McDade v. body was found the defendant Sawyer, at People, 29 Mich. 50, 1 Ann. Crim. Rep. 81; the request of the nephew of the deceased, People v. Treadway, 17 Mich. 480; Brandt, took charge of the body and gave it a ChrisSuretyship & Guaranty, 2d ed. § 530; Dewey tian burial; that he took possession of cerv. Kavanaugh, 45 Neb. 233, 63 N. W. 396 ; tain personal property of the deceased, sold Huffman v. Kopplekom, 8 Neb. 344, 1 N. W. it for its full value, and applied the pro243.
ceeds to the payment of the expenses neces
sarily incurred for the burial casket, the lot Hamer, J., delivered the opinion of the in the cemetery, etc. The plaintiff, as adcourt:
ministrator, brought this action to recover This is an appeal from the judgment of the value of the personal property so sold. the district court of Dakota county against On the trial the defendant offered to prove the coroner of that county and the surety on as a matter of set-off that the expenses inhis official bond. The suit was brought by curred by him were proper and necessary, the administrator of the estate of Robert' and were just and reasonable in amount; ments made by him in the rightful course In trover and trespass by the rightful of administration, upon the ground that administrator against an executor de son the payments, which are thus, as it is tort, the latter cannot plead by way of termed, recouped in damages,' were such equitable defense plene administravit beas the lawful executor or administrator fore the grant of administration to the would have been bound to make, and there former. Elworthy v. Sanford, 3 Hurlst. & fore it cannot be considered as any detri. C. 330. Against this plea counsel, in supment to him that they were made by an ex- port of his demurrer thereto, said: “The ecutor de son tort."
defendant might give in evidence, in miti. But in the same case the court said that gation of damages, payments made by him if the sums due to creditors should be in the rightful course of administration, belarger in amount than the assets, an execu- cause the plaintiff, as executor, would have tor de son tort, it seems, would not get been bound to make such payments, and credit for the sums he had disbursed; be therefore it can be no detriment to him that cause in the event of the question of prior- they were made by an executor de son tort; ity being raised, the rightful executor might, but an executor de son tort cannot plead, by such wrongful interference, be debarred in bar to an action by the rightful execufrom making a selection in his payments. tor, payment of debts to the value of the Ibid. But see infra this section, Leach y. assets, or of the goods sought to be recovPrebster and De la Guerra v. Packard. ered in trespass or trover. 1 Williams, Exrs.
In Saam v. Saam, 4 Watts, 432, the court 5th ed. pp. 236, 237. As an equitable desaid: “It is said there is no defense by an fense the plea is bad for not stating that administrator de son tort to the action of a the assets were sufficient to satisfy all the rightful representative; that is, he cannot debts of the deceased. An executor de son plead payment of debts to the value; yet tort cannot plead in mitigation of damages it seems to be agreed that he may plead payments made in the due
of the general issue, and give such payments administration, unless the assets were sufin evidence in mitigation of damages; and ficient to satisfy all the debts, for otherthat if they amount to the value, the plain-wise the rightful executor would be precludtiff shall be nonsuited. The present is an ed not only from giving preference to one action of trover against the representatives creditor over otbers of equal degree, but alof an executor de son tort, and the defense so of satisfying his own debt in priority to attempted would doubtless be competent, all others of equal degree. 1 Williams, Exrs. if it were supported by competent proof.” | 5th ed. p. 238." And Bramwell, B., said: The defendant in this case offered to prove “The ninth plea is clearly bad. The dethat he had paid debts to an amount equal fendant, who had wrongfully taken posto the value of goods, but the proof, as above session of the assets of the deceased, says intimated, was incompetent.
that he has exhausted them in the payment And in Meigan v. M'Donough, 10 Watts, of debts; but for anything that appears 287, it was stated that an executor de son he may have paid his own debt while the tort is liable to the rightful representative rightful executor was also a creditor of the for all beyond rightful payments by retainer deceased.” or disbursement.
In Howell v. Smith, 2 M'Cord, L. 516, And see Collier v. Jones, 86 Ind. 342, to it was held in an action by the administrathe effect that in a suit by the administrat- tor for money had and received that disor of decedent's estate against an executor bursements made by the wrongful executor de son tort of the same estate, a plea of in payment of debts of the deceased would payment of "all debts and liabilities on ac- not be allowed in discount. What the nacount of the matters and things set forth ture of these were does not appear, but the in the complaint in this suit” is an improp- court said: “It is due to the defendant to
state my full persuasion that his motives