if a stranger obtains possession of the goods of a decedent after administration is had, he is a trespasser.21 But if such stranger obtains possession prior to the legal appointment of an executor or administrator, he may be thereafter charged as an executor de son tort because the lawful representative can only be charged to the extent of the assets which come into his hands.22 If, however, the one wrongfully having possession of the goods delivers them to the executor or administrator before action is brought, he is relieved.28 And possession of goods obtained from the decedent in his lifetime for the purpose of defrauding creditors will make the possessor chargeable as executor of his own wrong, even after the appointment of a legal executor, or administrator, and the same rule holds where possession is obtained from the legal executor or administrator after his appointment and in collusion with him.24 §1258. Possession of Goods Under Conveyance to Defraud Creditors. If one in his lifetime by way of a deed of gift or bill of sale transfers to another his personal property in order to defraud his creditors, the one taking possession of such property under such fraudulent conveyance be 21 Tomlin v. Beck, 1 Turn. & R. 438; Read's Case, 5 Coke 33b; Ward v. Bevill, 10 Ala. 197, 44 Am. Dec. 478; Ebbinger v. Wightman, 15 Colo. App. 439, 62 Pac. 963; Bacon v. Parker, 12 Conn. 212. Although there be a legal executor, yet if one by pretending and claiming to be executor, pays or receives debts, or pays legacies, or otherwise intermeddles as an ex ecutor, he is chargeable as an executor de son tort.-Read's Case, 5 Coke 34a. 22 Read's Case, 5 Coke 33b; Stokes v. Porter, Dyer 166b; Ward v. Bevill, 10 Ala. 197, 44 Am. Dec. 478. 23 Anon., Salk. 313, pl. 19. 24 There can be no liability as an executor de son tort where there is a rightful executor, ex comes, after the death of the donor or vendor, chargeable as an executor de son tort.25 The rule does not, of course, apply where there is a valid assignment for a valuable consideration.26 If one under cover of such a fraudulent gift or sale takes possession or assumes control of property in his possession at the time of the death of the alleged donor or vendor, he becomes chargeable as an executor de son tort and answerable to the creditors of the decedent,27 and the fact that the possession is taken by his agent, and not by himself in person, does not alter the rule.28 The reason of the rule is that, generally speaking, the representative of a decedent is bound by his fraud and therefore can not have such a fraudulent transfer set aside;29 but in some jurisdictions the representa See, post, §§ 1258, 1259. 25 Godolph, pt. 2, ch. 8, §1; Hawes v. Leader, Cro. Jac. 271; Edwards v. Harben, 2 Term R. 587; Babcock v. Booth, 2 Hill (N. Y.) 181, 38 Am. Dec. 578; Osborne v. Moss, 7 Johns. (N. Y.) 161, 5 Am. Dec. 252; Norfleet v. Riddick, 14 N. C. (3 Dev. L.) 221, 22 Am. Dec. 717; Bailey v. Miller, 27 N. C. (5 Ired. L.) 444, 44 Am. Dec. 47; Tucker v. Williams, Dudley L. (S. C.) 329, 31 Am. Dec. 561; Densler v. Edwards, 5 Ala. 31. Contra: King v. Lyman, 1 Root (Conn.) 104. A deed of gift of a mare made by the decedent immediately prior to his death, the decedent dying in the donee's house and the property remaining in the donee's pos session, there being creditors of the decedent, was sufficient to constitute the donee an executor de son tort.-Gleaton v. Lewis, 24 Ga. 209. 26 Debesse v. Napier, 1 McCord L. (S. C.) 106, 10 Am. Dec. 658. 27 Hopkins v. Towns, 4 B. Mon. (Ky.) 124, 39 Am. Dec. 497. 28 Hopkins v. Towns, 4 B. Mon. (Ky.) 124, 39 Am. Dec. 497. 29 Freeman v. Pullen, 119 Ala. 235, 24 So. 57; Holliday v. McKinne, 22 Fla. 153; Anderson v. Brown, 72 Ga. 713; Richardson v. Ranson, 99 Ill. App. 258; Van Wickle v. Calvin, 23 La. Ann. 205; Stam v. Smith, 183 Mo. 864, 81 S. W. 1217; Thompson v. Palmer, 2 Rich. Eq. (S. C.) 32; Wilson v. Demander, 71 Tex. 603, 9 S. W. 678; Thomas v. Soper, 5 Munf. (Va.) 28. tive of a decedent is considered also as a representative of the creditors, thus giving him the same right as the creditors to have such a fraudulent transfer vacated, and the right is sometimes given by statute.3 30 The administrator of a fraudulent assignee has been held liable as an executor de son tort to the creditors of the deceased debtor by whom the assignment was made.31 However, in a Georgia case, it was held that if one who is chargeable as executor de son tort die, his administration is chargeable in the same manner and to the same extent as was the intestate, but the administrator does not himself become an executor de son tort by taking into his custody property found in the possession of his intestate, even though the possession of the decedent was as executor de son tort of another deceased person.32 §1259. Goods Received Innocently, or Through Collusion. Although one may have possessed himself of some of the effects of a decedent under such circumstances as make him chargeable as an executor de son tort, yet if another in good faith purchase them from him, the purchaser will not be charged as an executor of his own wrong.33 One who innocently receives goods from an ex 30 Ackerman v. Merle, 137 Cal. 157, 69 Pac. 982; Bassett v. Mckenna, 52 Conn. 437, 439; Jarrell v. Brubaker, 150 Ind. 260, 49 N. E. 1050; Mallow v. Walker, 115 Iowa 238, 91 Am. St. Rep. 158, 88 N. W. 452; Flynn v. Flynn, 183 Mass. 365, 67 N. E. 314; Beith v. Porter, 119 Mich, 365, 75 Am. St. Rep. 402, 78 N. W. 336; Hofman v. Tucker, 58 Neb. 457, 78 N. W. 941; Baker v. Carter, 127 N. C. 92, 37 S. E. 81; III Com. on Wills-8 Marks v. Coats, 37 Ore. 609, 62 31 McMorine v. Storey, 20 N. C. (4 Dev. & B. L.) 329, 34 Am. Dec. 374. 32 Alfriend v. Daniel, 48 Ga. 154. 33 Smith v. Porter, 35 Me. 287; Johnson V. Gaither, Harp. L. (S. C.) 6. "A stranger, therefore, who sees one acting as executor, may fairly ecutor de son tort will not be chargeable as such, although in equity he may be held a trustee as regards the property.34 And it has even been decided that a party who receives goods from an executor de son tort with knowledge of the facts, does not thereby become charged in that capacity;35 however, if there is collusion between the executor de son tort and the one who receives goods from him, the latter will be likewise liable.36 At an early date in England, in order to prevent one having the right of administration of the estate of an intestate from securing the appointment of an administrator who would act in collusion with him to defraud the estate, it was enacted that every one who should receive or have any goods or debts of an intestate or the discharge of any debt or duty belonging to the intestate, except for a valuable consideration amounting to the value of the goods or debt, should be charged as executor of his own wrong.3 37 presume that there is a will in which he is appointed executor. A stranger is not bound to inquire into an executor's title; if there be an appearance of it, it is sufficient." -Johnson v. Gaither, Harp. L. (S. C.) 6. 34 Paull v. Simpson, 9 Q. B. 365, 15 L. J. Q. B. 382; Hill v. Curtis, L. R. 1 Eq. 90; Wiley v. Truett, 12 Ga. 588. 35 Smith v. Porter, 35 Me. 287. Contra: Seally v. Powis, 1 Harr. & Woll. 2. 36 Hill v. Curtis, L. R. 1 Eq. 90; Caruthers V. Moore, 1 Tenn. Cas. 60. 87 The statute of 43 Eliz., ch. 8, recited that "forasmuch as it is often put in use to the defrauding of creditors, that such persons as are to have the administration of the goods of others dying intestate committed unto them, if they require it, will not accept the same, but suffer or procure the administration to be granted to some stranger of mean estate, and not of kin to the intestate, from whom themselves or others by their means do take deeds of gifts and authorities by letter of attorney, whereby they obtain the state of the intestate into their hands, and yet stand not subject to pay any § 1260. Possession in Good Faith Under Color of Title. One who lawfully and in good faith comes into the possession of the goods of a decedent with the consent of the rightful custodian, can not be charged as an executor de son tort.38 One taking and possessing himself of goods in good faith and under color of title, can not be regarded as an executor of his own wrong, even though his claim might not be sustained. But where color of debts owing by the same intestate, and so the creditors for the lack of knowledge of the place of habitation of the administrator, can not arrest him or sue him; and if they fortune to find him out, yet for lack of ability in him to satisfy of his own goods the value of that he hath conveyed away of the intestate's goods, or released of his debts by way of wasting, the creditors can not have or receive their just or due debts," it is enacted "that every person or persons that hereafter shall obtain, receive, and have any goods or debts of any person dying intestate, or a release or other discharge of any debt or duty that belonged to the intestate upon any fraud as is aforesaid, or without such valuable consideration as shall amount to the value of the same goods or debts, or near thereabouts, (except it be in or towards satisfaction of some just and principal debt of the value of the same goods or debts to him owing by the intestate, at the time of his decease,) shall be charged and chargeable as executor of his own wrong; and 39 so far only as such goods and debts coming to his hands, or whereof he is released or discharged by such administrator will satisfy, deducting nevertheless to and for himself allowance of all just, due, and principal debts upon good consideration, without fraud, owing to him by the intestate at the time of his decease, and of all other payments made by him which lawful executors or administrators may or ought to have and pay by the laws and statutes of this realm." See, post, § 1271, as to forms of action against executor de son tort. 38 Boring v. Jobe, (Tenn. Ch.) 53 S. W. 763. While a widow may become an administratrix de son tort by paying her husband's debts, yet she can not be held as such where the proofs show that she claimed the property as her own and not as administratrix, and that the debts were paid out of her own money.Morris v. Lowe, 97 Tenn. 243, 36 S. W. 1098. 39 Densler v. Edwards, 5 Ala. 31; |