estate of the father, a division of the land, and allotment of dower, held, that the acts of defendant should be treated as those of a duly appointed administrator from the date of the father's death; and that he holds the land in trust for the widow and heirs.

It is incumbent upon the executor de son tort to show that he has applied the assets which have come into his hands in the same manner in which they would have been lawfully applied by a rightful representative. 18 Cyc. 1363. Among the authorities cited in support of the doctrine stated is that of Gay v. Lemle, 32 Miss. 309, holding that, where it appears that he has paid one parperil, and must show that he has applied them in the same manner in which they could have been lawfully applied by the rightful executor; and if it appear that he has paid one particular debt not entitled to preference, leaving others unpaid, he cannot claim that he has done what the law required to be done with the assets, in a due course of administration, but must be liable as an executor de son tort to the other creditors. Gay v. Lemle, 32 Miss. 309. The court said: "The rule is well settled, that an executor de son tort is not liable beyond the assets which came to his hands, and that he is protected in all acts, not for his own benefit, which a rightful executor may do. 1 Williams, Exrs. 154. And in England he could discharge himself by showing payment of debts of the intestate in the same or of a superior degree, as a rightful executor would have been justified in making such payment. But there is no authority and there can be no reason, for holding that he is justified in applying the assets to the payment of debts which the rightful executor would not have been authorized to pay; and therefore he would not have been justifiable in England in paying the debts of an inferior degree, in preference to those of a superior degree." If an executor de son tort exhausts an insolvent estate in the due and orderly payment of debts entitled to priority and is sued by a creditor for a debt of inferior degree to those paid, he may safely stand upon the plea of plene administravit, because the assets have thus been duly administered. But if he has exhausted the assets in the payment of debts not entitled to priority to the plaintiff's, that plea will not avail him, because he has not administered the estate in due course of law. Bennett v. Ives, 30 Conn. 329. And see, in the same connection, Winn v. Slaughter, 5 Heisk. 191.

But holding that, if the estate with which an executor de son tort has intermeddled be insolvent, it is no defense, when sued by a creditor, that he has paid debts to double the amount of the assets which he received, the court, in Neal v. Baker, 2 N. H. 477, said: "There seems to be no doubt that an executor de son tort may plead plene administravit, and support the

ticular debt not entitled to preference, leaving others unpaid, he cannot claim that he has done what the law required to be done with the assets in due course of administration, but must be liable as executor de son tort to the other creditors. But in that case the doctrine announced emphasizes the contention that the executor de son tort is entitled to fair treatment if he has acted justly. The syllabus in that case reads: "If an executor de son tort, when sued by a creditor, attempt to justify his unlawful intermeddling with the assets of the deceased by showing that he has applied them to the payment of his debts, he must show that he plea by showing in evidence that before the commencement of the suit he had paid over to the rightful executor or administrator all that was in his hands. Padget v. Priest, 2 T. R. 97, 1 Revised Rep. 440. And in England, when the suit is by a creditor against an executor de son tort, it is a good defense that he has paid the amount of assets come to his hands, to creditors of equal or superior degree, himself only excepted. Lovelass, Wills, 51; Coulter's Case, 5 Coke, 30a; Wentworth, Exrs. 180. By our statute of February 3, 1789, § 14 (1) goods, etc., become, in the hands of executors de son tort, assets to the amount of double their value, and we have no doubt that in this state, upon plene administravit pleaded, an executor de son tort might show a recovery against him by a creditor, or by the rightful executor or administrator, to the amount of the assets in his hands, and that this would support his plea. A plea of plene administravit by a rightful executor might, perhaps, be supported by proof that the whole estate had been expended in paying debts due to the state, debts due for the last sickness and funeral charges, and a reasonable allowance by the judge of probate to the widow; these being entitled to priority of payment, by the statute relative to insolvent estates. But we are of opinion that proof that the whole estate had been exhausted in the payment of other debts would not support such a plea. If, after paying the claims entitled to priority of payment, anything remain, it must be shown to have been expended in a distribution among all the creditors, in the insolvent course, in order to support such a plea. And we think that an executor de son tort stands on no better ground in this respect than a rightful executor. When an action is brought against an executor de son tort, it is, in our opinion, no defense, if the estate be insolvent, that he paid, voluntarily, debts to double the amount he has received. Because he has no right to elect whom we will pay. A payment upon a collusive recovery against him would stand upon the same ground. But when there is bona fide a recovery against him to double the amount received, he then pays by order of law and will be discharged. Whether, in case of a solvent estate, payment of just

In Holeton v. Thayer, 89 Ill. App. 184, it was held that, where a person named as exdebts to double the amount received would be a defense to an action brought by a creditor against an executor de son tort need not now be decided. In the present case it is agreed that the estate was insolvent, and we are of opinion that there must be judgment for the plaintiff."

The doctrine of the common law in regard to the liability of an individual who, without being appointed executor or taking letters of administration, intermeddles with the estate of a deceased person, is recognized as applicable and operative in Connecticut, so far as it is not inconsistent with the general principles and policy of the law of that state regarding the settlement of estates. Bacon v. Parker, 12 Conn. 212; Bennett v. Ives, 30 Conn. 329.

An executor de son tort has all of the liabilities but none of the privileges of a rightful executor, and therefore cannot retain his own debt as against the claim of any other creditor, but he may show that he has exhausted the assets by the payment of just debts of the decedent, other than his own. McMeekin v. Hynes, 80 Ky. 343. To the same effect, see Alexander v. Lane, Yelv. 137; Prince v. Rowson, 1 Mod. 208; Curtis v. Vernon, 3 T. R. 587, 2 H. Bl. 18, 1 Revised Rep. 774; Leach House, 1 Bail. L. 42; Glenn v. Smith, 2 Gill & J. 493, 20 Am. Dec. 452; Partee v. Caughran, 9 Yerg. 460; Sharp v. Caldwell, 7 Humph. 415; Turner v. Child, 12 N. C. (1 Dev. L.) 331, 17 Am. Dec. 555.

V.

An executor de son tort cannot retain for his own debt, but, with this exception, he may pay debts, even one to which he is surety, in the same order in which a rightful executor is required to pay them. Kinard v. Young, 2 Rich. Eq. 247.

And in Kinard v. Young, supra, an executor de son tort was entitled to credit for a coffin for his testator, upon the ground that "all the authorities say that payments or expenditures which a rightful executor might lawfully make are good acts of administration in a wrongful executor."

A wrongful and rightful executor differ, it seems, in this respect only, that the first is to take no benefit of his own wrongful act. As regards the creditors there is no difference; both may administer the assets in due course of law. Bennett v. Ives,

In Crispin v. Winkleman, 57 Iowa, 523, 10 N. W. 919, it was held: "One who intermeddles with the estate of a decedent, without having been appointed administrator, has no right to pay claims out of the assets of the estate; and in no case can he escape supra; and see Tweedy v. Bennett, 31 Conn. 276.

An executor de son tort sued at law as such by a creditor of the deceased is not allowed to retain for his own debt, and the rule is the same in equity. And refusing to allow such executor to retain in payment of his own debt does not violate the rule that a court will never enforce a penalty. Baumgartner v. Haas, 68 Md. 32, 11 Atl. 588. The court said: "Now an executor de son tort, sued at law as such by a creditor of the deceased, is not allowed to retain for his own debt. The current of authorities is uniform on this point, and it is enough for us to refer to the case of Glenn v. Smith, 2 Gill & J. 493, 20 Am. Dec. 452, where the law is definitely settled in this state. It is true that that case, as all the others within our notice, were cases at law, and it has been very strenuously argued that a different rule should prevail in equity. It is insisted that, in refusing to allow Gunther to retain any portion of the property in controversy in payment of his own debt, a court of equity would be enforcing a penalty upon him, which a court of equity will never do. The rule of the common law, which refuses to allow executors de son tort to retain for their own debts until the other creditors are paid, is based upon sound public policy. To allow it (2 Bl. Com. 511) would tend to encourage creditors to strive who should first take possession of the goods of the deceased, and would allow a creditor to take advantage of his own wrongful act by paying himself first. Such is unquestionably the rule of the common law from time immemorial. Can a court of equity annul this rule? A quotation from an eminent American writer (Story) will answer this question: 'For example (1 Story, Eq. Jur. § 11), the first proposition, that equity will relieve against a general rule of law, is neither sanctioned by principle nor by authority. For though it may be true that equity has in many cases decided differently from courts of law, yet it will be found that these cases involved circumstances to which a court of law could not advert, but which, in point of substantial justice, were deserving of particular consideration, and which a court of equity, proceeding on principles of substantial jus

liability for so using the money of the estate, without an affirmative showing that the amounts paid were correct."

It follows that the district court erred in excluding evidence tending to show that the money received from the sale of the property was expended in and about the burial of the

The judgment of the District Court of Dakota County is reversed.

Letton and Fawcett, JJ. (concurring in result only):

The

tice, felt itself bound to respect.' This is a bill in equity, and it has been argued that when the decree was passed against Gunther, requiring him to account for this property, and bring it into court for distribution among the creditors of the deceased, that Gunther, being a creditor, should participate in the distribution. If the creditor Haas had brought suit at law and recovered, the defendant could not certainly have retained anything for his own debt. The plaintiff, if his debt amounted to the whole value of the property, would have taken it all. This is unquestionably the rule at law. Should an honest and meritorious creditor of the deceased be placed in a worse position when he seeks the aid of a court of equity? Or should a manifest wrongdoer fare better in equity than at law? We think the answer to these propositions must be in the negative. To allow the defendant to come in and participate in the division of the property recovered from him is practically to allow him to retain a share of it for his own debt, and thus relieve him from the operation of the rule of the common law that forbids such a retainer."

Although, under the Georgia Code, executors de son tort can get no credit for any debt voluntarily paid by them, yet, if, in good faith, they have furnished the widow her year's support, they may set that off. The claim of the widow is not a debt, but a special provision allowed by law, in preference to any liens or debts held by creditors. Barron v. Burney, 38 Ga. 264.

If, previously to an action brought against the defendants, as executors de son tort, by creditors, they had paid the money over to the rightful administrator, that would be a good defense, because then they would have applied the money properly. Padget v. Priest, 2 T. R. 100, 1 Revised Rep. 440; Hill v. Curtis, L. R. 1 Eq. 90, 35 L. J. Ch. N. S. 133, 12 Jur. N. S. 4, 13 L. T. N. S. 584, 14 Week. Rep. 125; Kinard v. Young. supra; Anonymous, 1 Salk. 313. And to this end they may plead plene administravit. Kinard v. Young and Anonymous, supra.

But an executor of his own wrong cannot discharge himself from an action by

We think the principles announced in Phillips v. Phillips, 87 Me. 324, 32 Atl. 963, and Adams v. Butts, 16 Pick. 343, apply, and hence concur in the result.

Sedgwick, J., concurs in the conclusion.

a creditor by delivering over the effects to the rightful executor after the action is brought. Curtis v. Vernon, 3 T. R. 587, 2 H. Bl. 18, 1 Revised Rep. 774; Hill v. Curtis, supra. And see Carmichael v. Carmichael, 10 Jur. 908, 2 Phill. Ch. 101, which seems to hold that the wrongful executor cannot discharge himself by coming to an account with the lawful representative.

The rule in equity, it seems, follows the rule at law; so that if an executor de son tort can prove a settled account with the rightful representative before suit, that is a sufficient answer to a bill in equity against him for an account. Hill v. Curtis, supra.

Suit by distributee, etc.

Since § 2441, Georgia Code, debts voluntarily paid by an executor de son tort cannot be set off by him against an action by a distributee of the estate for his share of the property. Bryant v. Helton, 66 Ga. 477.

But in a suit by such distributee against such an executor de son tort, he can set off the widow's year's support. Ibid.

In Roggenkamp v. Roggenkamp, 15 C. C. A. 600, 32 U. S. App. 453, 68 Fed. 605, which was an action by the heir's guardian to recover certain real estate, the court said: "Under the common law, one who intermeddles with the personal property of a deceased person, and disposes of it, or does any other act of administration of the assets without the authority or direction of the proper court, or of the will of the deceased, thereby constitutes himself an executor de son tort. He cannot by his wrongful act acquire any benefit for himself. The rightful executor or administrator, or any creditor or legatee, may maintain an action against him for the property of the deceased which he has taken, and may compel him to account for its disposition and value; but in all acts that are not for his own benefit, and that a lawful executor might do, he is protected. He cannot be charged beyond the assets which come to his hands, and against these he may set off the just debts which he has paid. 1 Williams Exrs. pp. 296, 305, 308; Bacon v. Parker, 12 Conn.

213; Emery v. Berry, 28 N. H. 473, 61 Am. | Dec. 622; Bellows v. Goodall, 32 N. H. 97; Glenn v. Smith, 2 Gill & J. 493, 20 Am. Dec. 452; Weeks v. Gibbs, 9 Mass. 74; Winn v. Slaughter, 5 Heisk. 191; Tobey v. Miller, 54 Me. 480; Olmsted v. Clark, 30 Conn. 108. It is unnecessary to inquire in this case whether or not an intermeddler with the personal estate of a deceased person becomes an executor de son tort, and liable to account at the suit of a creditor or legatee under the statutes of the state of Nebraska. It is certain that the appellant, by undertaking to administer the estate of his deceased son without the sanction of the probate court, made himself liable to account to the rightful administrator for the value of the personal property he obtained from that estate. Consol. Stat. (Neb.) 1891, § 1244. But it would have been a perfect defense to a suit by the administrator for such an accounting that the appellant had paid all the just debts of the deceased, and that he had exhausted all the assets he had received from the estate in paying these debts. The heir had no right to or equity in the personal property of his father, as against a stranger, superior to those of the lawful administrator. alleged in this suit that the appellant had appropriated the proceeds of the personal property of the estate to the purchase of the land he sought to recover. The appellant denied this, averred that he had used all the property of the deceased and some of his own to pay the just debts of the deceased, and that he paid for this land with his own money. The appellant was entitled to a fair accounting that would determine this issue, and find what balance, if any, of the value of the personal property he received, remained in his hands after he was credited with the payments he made on just debts of the deceased. He was not liable to be charged with the use of any more property of the deceased in the purchase of this land than the amount of such a balance. We have searched the record in this case in vain for the statement of such an account, or of evidence that an accounting upon this basis has been had in the court below, and we are unwilling to affirm the decree without it."

He

In Weaver v. Williams, 75 Miss. 945, 23 So. 649, which was a proceeding for the partition of certain lands belonging to the estate of the decedent, and for the recovery in personam against executors de son tort for moneys and notes alleged to have been taken possession of by such execu tors of the estate, and used for their own benefit, it was said: "The contention that these executors de son tort have paid debts which should have been credited on the personal decree is also untenable, for the obvious reason that the proof utterly fails to show that the debts which they claimed to have paid were valid charges against the estate,-charges such as a rightful executor would have been protected in paying. We have said, in Gay v. Lemle, 32 Miss. 312, 'There is no authority, and

there can be no reason, for holding that he [an executor de son tort] is justified in applying the assets to the payment of debts which the rightful executor would not have been authorized to pay.' The loose, vague, uncertain testimony here on this point is utterly unsatisfactory. The observations of the court in Hardy v. Thomas, 23 Miss. 547, 57 Am. Dec. 152, are to be especially noted, the court declaring: 'If a party see fit, without authority of law, to intermeddle with an estate, to pay debts, and sell property for that purpose, all he can rightfully ask is the privilege of proving a claim against the estate for the sums so paid, and demanding payment from the administrator, ratably with the other creditors.' We do not, of course, mean to be understood as saying that if the claims were legal charges against the estate, and have been paid by the executors de son tort, they could not here diminish the recovery by their amount. We call attention merely to the case in 23 Miss., supra, in view of the dealing with these notes, resting our approval of the chancellor's action in this respect upon the total failure of the testimony to show that any claims alleged to have been paid were such as were legal charges against the estate."

It is the well-settled doctrine that an executor de son tort of a solvent estate may discharge himself, even against the demand of the rightful executor, by proving debts paid to the amount of the goods received which had belonged to deceased. McConnell v. McConnell, 94 Ill. 295.

So, where a widow took a United States government bond of $1,000 belonging to her deceased husband estate, and never accounted for the same, but paid the same on a note of $1,500 against the estate, she was not liable to the heir at law for the amount of the bond. Ibid.

Sharland v. Mildon, 10 Jur. 771, 5 Hare, 469, 15 L. J. Ch. N. S. 434, holds that one acting as the agent of an executor de son tort in collecting the assets, and knowing at the time that his principal is not the legal personal representative, is himself liable as executor de son tort; and that although he may have duly accounted to his principal for the assets which he has received. The bill in this case was against the personal representative and the agent of the executor de son tort by a party claiming under the will of the testator for a general account of his estate.

Suit by executor de son tort against rightful representative.

In Ayre v. Ayre, 1 Ch. Cas. 33, "the plaintiff being the widow of her husband, sued the defendant, who was his executor, to have allowance of satisfaction for several debts of the testator's (which she, having pos sess'd herself of his estate, had paid) the executor having gotten all the estate out of her hands. It was much controverted, whether she should be helped herein? For tho' executor of his own wrong shall be al