of administration upon her estate. While he had no authority to grant letters of administration unless she died intestate, intestacy, like inhabitancy, was one of the facts which he was to determine. He had general jurisdiction of the subject of administration; and, having determined that she died intestate, he was authorized to grant administration upon her estate. The proceedings in the surrogate's court were properly exemplified and proved.

But the further claim is made that the answer was insufficient to permit the laws of New Jersey to be read in evidence, for the reason that there were not therein alleged. It is there alleged "that Margaret Knittel died an inhabitant of, and domiciled in, and a resident of, Hoboken, Hudson county, N. J.; that thereafter, and on the 19th of October, 1875, letters of administration on the goods, chattels, rights and credits of Margaret Knittel, deceased, were duly issued to one Louis Knittel, the husband of the said Margaret Knittel, by the surrogate of the county of Hudson, state of New Jersey; that said surrogate had jurisdiction, and was duly authorized and empowered, by the laws of the state of New Jersey, to issue said letters as aforesaid." We think these allegations were sufficient to authorize proof of the laws of New Jersey, and of the jurisdiction of the surrogate in issuing letters. If the plaintiff desired more specific allegations, and was fairly entitled to them, he should have moved to make the answer more specific and definite. The answer gave him every information to which he was entitled; and he might, if he could, have shown that the surrogate had no jurisdiction, and that the laws did not authorize him to grant administration of the estate of Mrs. Knittel. So far as the case of Throop v. Hatch, 3 Abb. Pr. 23, may seem to hold the contrary doctrine, it does not receive our approval. We are therefore of opinion that the judgment should be affirmed, with costs. All concur.

What May be Done by the Officer before the Letters Are

Issued?*

HATCH v. PROCTOR ET AL.

102 Mass. 351. 1869.

Contract by an administrator of the estate of Frank J. Hatch to recover of George L. Lawrence for goods belonging to the estate, and sold and delivered. From an order directing a verdict for the defendant, plaintiff excepted.

COLT, J. The case presented in the offer of evidence is this: The plaintiff, acting, with the knowledge of the defendants, as executor in his own wrong of his deceased brother's estate, delivered certain personal property, with a bill of sale and warranty of title, to one Lawrence, in consideration of the verbal promise of the defendants to pay the plaintiff $1700 towards the price thereof. At the time of the sale and delivery, the defendants took a mortgage from Lawrence to secure them the amount to be paid, and no credit appears to have been given to him by the plaintiff. The property passed into the possession of Lawrence, and it does not appear that his title, or the title of the defendants, claiming under the mortgage, has ever been questioned by anybody else, or possession under it disturbed. After this, the plaintiff was regularly appointed administrator of his brother's estate, and notified the defendants that he ratified and confirmed as administrator, all his acts and contracts with them in the sale of said property. And thereupon they told him, by the defendant Proctor, their agent in the premises, that the agreement for the payment of said sum was fair, and the money should be paid; though shortly after, while the property still remained with Lawrence, they notified the plaintiff that they claimed no title to the same under the mortgage, which they thought invalid.

In the opinion of the court, the evidence offered should not have been rejected. The facts, if proved, would entitle the plaintiff to maintain his action.

The defendants do not now insist that the contract cannot be

*See Sec. 1038, Vol. 7, Cyclopedia of Law.

enforced as against the statute of frauds. It was an original promise made by the defendants to pay for property delivered to another. Stone v. Walker, 13 Gray, 613; Swift v. Pierce, 13 Allen, 136.

The personal estate of a deceased intestate, when an administrator is appointed, vests in him by relation from the time of the death. Until then the title may be considered to be in abeyance. Lawrence v. Wright, 23 Pick. 128. He may have an action of trespass or trover for goods of the intestate taken before letters granted. When the wrongdoer has sold the property taken, the administrator may waive the tort and recover in assumpsit for money had and received. And, in a case very like the one at bar, it was held that, where the sale was made avowedly on account of the estate, by one who had been agent of the intestate, the administrator afterwards appointed might recover from the vendee in assumpsit for goods sold and delivered. Foster v. Bates, 12 Mees. & W. 226, 233. It is said that, if an executor de son tort obtains letters of administration pendente lite, it legalizes his previous tortious acts. 1 Williams, Ex'rs (6th Ed.) 598, and cases cited. By the law of this state as laid down by Hoar, J., in Alvord v. Marsh, 12 Allen, 603, the letters of administration, by operation of law, makes valid all acts of the administrator in settlement of the estate from the time of the death. They become by relation lawful acts of administration for which he must account. And this liability to account involves a validity in his acts which is a protection to those who have dealt with him.

The case here presents no question as to the peculiar liability of an executor in his own wrong, to creditors, to the rightful administrator, or to others who have suffered by his unlawful acts. As to the defendants, the sale here was not tortious. It was made legal, and the title of the vendee confirmed, by the retroactive effect of the subsequent letters of administration. Nor is it to be overlooked that the defendants knew, when the property was delivered and the warranty of title given, that the vendor had no legal right to sell. There was no ignorance or mistake on their part, and no fraud or false affirmation of title on the part of the plaintiff. The property still remains undisturbed in the hands of the purchaser. The plaintiff's express

confirmation of the sale was agreed to, and payment of the price promised. These last considerations alone would, under the circumstances, seem to be a sufficient answer to the defence set up. Story, Sales, § 367b, note; Id. § 423.

Exceptions sustained.

ROZELLE v. HARMON.

103 Mo. 339. 1891.

Appeal from circuit court, Holt county; C. A. Anthony, Judge. MACFARLANE, J. This suit was commenced in the circuit court of Holt county. Plaintiff was a creditor of one B. W. Ross, deceased. The suit was for the purpose of recovering the amount of the debt from defendant on the ground that he had wrongfully appropriated and converted the assets belonging to Ross' estate to his own use. Plaintiff recovered judgment in the circuit court, and defendant appealed to the Kansas City court of appeals, where the judgment was reversed. The case was certified to this court by the court of appeals on the ground that the decision rendered therein was in conflict with the decision of this court in the cases of Foster v. Nowlin, 4 Mo. 18, and Magner v. Ryan, 19 Mo. 196. The question presented by the record in this case is sufficiently stated by Judge Philips (29 Mo. App. 578) to be "whether there can be, under the probate system of this state, an executor de son tort, in so far as to authorize a single creditor of the intestate to maintain an action of trover against him, as here sought, and thereby appropriate the whole assets to the payment of plaintiff's debt." The system provided by the laws of our state for the settlement of the estates of deceased persons was evidently intended to be exclusive of all others. The constitution provides for the establishment of a probate court in each county, which shall have jurisdiction in all matters pertaining to probate business. The laws of the state governing the procedure in the management and settlement of estates are ample and sufficient to meet any emergency that may possibly arise during administration. They provide for the appointment of executors and administrators, for the preservation

of the property, and the collection of the debts of the estate. They also provide summary and efficient proceedings for the discovery of assets, and for their recovery from the possession of one who intermeddles with them. Under them any creditor can have an administrator appointed. Each county is provided with a public administrator, already qualified, whose duty requires him summarily to take charge of all estates in which the property is left in a situation exposed to loss or damage; and the court is given power to require him to take charge of any other estates in case of necessity. Ample provision is made for the allowance and classification of debts, converting the assets into money, and paying the debts of all creditors pro rata according to classification. Executors and administrators alone, under these laws, can recover the assets or damages for its conversion. All these provisions of the law are wholly inconsistent with the idea of executors de son tort as at common law. The administration laws of the state do not recognize the right to wrongfully administer, nor the right of one creditor to secure payment of his debt to the exclusion of others. It is insisted by plaintiff that this state has adopted the common law, that under the rules of the common law his action is authorized, and that the rules of the common law on this subject have not been abrogated by the statutes. It is contended that under proper rules of construction a statute in derogation of the common law must be strictly construed, and that none of its rules can be changed, except by express terms of the statute, or by necessary implication therefrom. That rule of construction is not of universal application. It depends much on the character of the law to be affected. In cases of statutes penal in their character, or in derogation of common right, a strict construction is required; but in regard to statutes merely remedial in their character a fair, if not liberal construction should be given. Oster v. Rabeneau, 46 Mo. 595; Putnam v. Ross, Id. 337; Chamberlain v. Transfer Co., 44 N. Y. 305; Buchanan v. Smith, 43 Miss. 90. The statute of this state, adopting the common law, itself limits or modifies the rule of construction insisted upon. Section 3117, St. 1879, provides that the common law, which is not repugnant to or inconsistent with the constitution of this state or the statute laws in force for the time being, shall be the rule of action and decision in this