of course apparent that one who has made himself an executor de son tort may exonerate himself by accounting with and delivering all assets in his hands to the rightful administrator before suit is brought by a creditor." Where one without authority has sold the property of an intestate, he can not set up as a defense, in an action for the recovery thereof, the fact that the sale was void and vested no title in the purchaser.10 Claims paid out by an executor de son tort can not be availed of as against the claims of the estate where there is no evidence to show that they were legal demands against the estate.11 Where payment of charges is made without probate, he must make an affirmative showing that the demands were correct and legal.1a § 1274. Manner of Pleading Defenses: Judgment and Execution. The extent of the liability of an executor de son tort can be tested only by a plea of plene administravit, or 9 Israel v. King, 69 N. C. 373. 10 Upchurch v. Norsworthy, 15 Ala. 705. 11 Weaver v. Williams, 75 Miss. 945, 23 So. 649. "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."Gay v. Lemle, 32 Miss. 309, 312. One sued as executor de son tort may prove that a certain fund re maining in his hands after a sale of property conveyed to him by his alleged testator was to indemnify him for liabilities and that payment was ordered by the testator in his lifetime to other persons than the plaintiff, and to that end may introduce in evidence a deed of trust between the testator and the other persons.-O'Reilly v. Hendricks, 2 Smed. & M. (10 Miss.) 388. 12 Holeton v. Thayer, 89 Ill. App. 184; Crispin v. Winkleman, 57 Iowa 523, 10 N. W. 919. 1 plene administravit prætor, i. e., he has fully administered and has no assets, or he has no assets excepting those which he specifies or enumerates in his reply. Under either of the above pleas an executor de son tort is liable only to the extent of the assets which have come into his hands.13 In a suit against him by a creditor he may show that he has applied the assets to the payment of just claims of creditors, other than himself, of equal or superior degree to that of the creditor who brings the action, thereby exhausting the assets wholly or in part, as the case may be. If the debts are properly paid, his liability is limited to the assets, if any, remaining in his hands.14 He may also show that prior to the commencement of the action he delivered the property to the lawful executor or administrator;15 but it is no defense to make such a delivery after suit has been instituted, even though no lawful representative had been appointed at the time of the commencement of the action.16 Where the plea of the executor de son tort is non-assumpsit, or ne unques executor, the latter plea being that he never was executor, and the issue is found against him, the plaintiff is entitled to judgment for his debt and costs, and the same can be recovered out of the assets 13 Godolph, pt. 2, ch. 8, § 2; Cook v. Sanders, 15 Rich. L. (S. C.) 63, 94 Am. Dec. 139; Hubbell v. Fogartie, 1 Hill (S. C.) 167, 26 Am. Dec. 163. 14 Bacon's Abr., tit. Exrs. & Admrs., B, 3, 2; Ayre v. Ayre, 1 Chan. Cas. 33; Mountford v. Gibson, 4 East 453, by Blanc, J.; Glenn v. Smith, 2 Gill & J. (Md.) 493, 20 Am. Dec. 452; Mitchel v. Lunt, 4 Mass. 654; Nass v. Vanswearingen, 7 Serg. & R. (Pa.) 192, 196. 15 Anon., 1 Salk. 313; Padget v. Priest, 2 Term R. 97. 16 Curtis v. Vernon, 3 Term R. 587; s. c., 2 H. Bl. 18. of the decedent in the defendant's hands, and if insufficient then out of the defendant's own goods.1 An executor de son tort may plead both ne unques executor and plene administravit, and if the first plea be not sustained he may, if the evidence is sufficient, successfully sustain the latter.18 On a judgment against an executor de son tort, no levy can be made on the lands of the decedent.19 Such an executor is vested with no character of office by which he can obtain a license to sell lands of the decedent for the payment of debts, and such lands can not in contemplation of law be any part of the estate in his hands. It would be extremely mischievous to allow such a judgment to be satisfied against the lands of the decedent since no action for waste for not collecting the personal estate and paying the debts of the decedent will lie against an executor de son tort in favor of a devisee or heir,20 § 1275. Statutes Abolishing Office Do Not Deprive Defendant of Former Defenses. In those jurisdictions where the office of executor de son tort has been abolished by statute and an action can 17 Robbin's Case, Noy 69; Bull v. Wheeler, Cro. Jac. 648; Campbell V. Tousey, 7 Cowen (N. Y.) 64; Hubbell v. Fogartie, 1 Hill (S. C.) 167, 26 Am. Dec. 163; Hubble v. Fogartie, 3 Rich. L. (S. C.) 413, 45 Am. Dec. 775. A judgment against an executor de son tort must be special and not general.-Parker v. Thompson, 30 N. J. L. 311. Such judgment is exclusively for the benefit of the creditor or legatee who brings the action.-Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197; Hutchinson v. Fulghum, 4 Heisk, (51 Tenn.) 550. 18 Williams Exrs. (3d Am. ed.) *219. 19 Nass v. Vanswearingen, 10 Serg, and R. (Pa.) 144; Warren v. Raymond, 17 S. C. 163, 192. 20 Mitchel v. Lunt, 4 Mass. 654, 657. not be maintained against him as executor, he is subject to suit as a wrong doer by the rightful executor or administrator; yet at the same time he may show in mitigation of damages that what he did was for the benefit and not the injury to the estate. In compelling him to account with the rightful representative only, the statute does not purport to undertake to deprive him of any proper or legitimate defense.21 In an action against him by the legal representative of the decedent it is not material whether the defendant be treated as an executor de son tort or a wrong doer, the liability, in either case, to account to the lawful executor or administrator is the consequence of the same act, and is the same, and must be governed by the same principles of legal justice.22 21 Rutherford v. Thompson, 14 Ore. 236, 12 Pac. 382. As to defenses, see §§ 1264, 1273, 1274. 22 Rutherford v. Thompson, 14 Ore. 236, 12 Pac. 382. See 1264, n. 4. CHAPTER XLVIIL SPECIAL OR LIMITED ADMINISTRATION. § 1276. Special or limited administration. § 1277. Who are entitled to special or limited letters of admin istration. § 1278. Statutory provisions regarding special administration. §1279. Administrator durante minore ætate. § 1280. The same subject: Powers and duties. § 1281. Administration durante absentia: English rule. § 1282. The same subject: American rule. § 1283. Administration pendente lite. § 1284. Reason for appointment of administrator pendente lite, and termination of authority. § 1285. Powers and duties of administrator pendente lite. § 1286. Administrator ad litem. § 1287. Statutes providing for settlement of estates without intervention of probate court. 81276. Special or Limited Administration. The affairs of the estate of a decedent should be administered by the executor named in the testator's will or by an administrator, as the case may be, regularly and permanently appointed and qualified for such purpose. As has been shown before, the law requires that the will of a testate decedent shall be offered for probate within a specified time after the testator's death.1 The law naturally favors a permanent administration to one which is merely special or temporary. However, circumstances frequently require the appointment of administrator for some limited time and purpose pending delay in the qualification of some one to the permanent office. Such spe 1 See §§ 1189, 1196. |