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§1490. The Same Subject: Recovery and Release of Claim. An action to recover damages for a tort is not local, but transitory, and as a general rule it can be maintained wherever the wrongdoer can be found. Statutes which give the heir or personal representative of a decedent the right of action for damages for injuries resulting in his death, in effect remove the common law obstacle to the recovery for an admitted tort.32 It would therefore seem reasonable to hold that an action for such tort could be maintained in any state where the common law obstacle had been removed, or at least where the statute of the state in which the cause of action arose is not in substance inconsistent with the statutes or public policy of the state in which the right of action is sought to be enforced.82

Rep. 987, 22 L. R. A. (N. S.) 1094, 64 S. E. 920.

32 Stewart v. Baltimore & Ohio R. Co., 168 U. S. 445, 448, 42 L. Ed. 537, 18 Sup. Ct. 105.

See Cincinnati etc. R. Co. v. McCullom, 183 Ind. 556, Ann. Cas. 1917E, 1165, 109 N. E. 206, wherein it is said that the statute creates a new right of action where the right does not rest upon the basis of an injury to the estate of the decedent, but the foundation of which is the loss sustained by certain persons designated by the statute to receive the benefits of a recovery, the amount recovered to be distributed in the proportions fixed by the statute and not to be applicable to the payment of the general debts of the estate; but that a statute which permits

the personal representative to sue, not for the exclusive benefit of those who suffer loss by reason of the death of the decedent, but to prosecute a cause of action which existed in the decedent prior to his death, and which provides that the recovery, if any, shall inure to the benefit of the estate, does not create a new cause of action.

33 Stewart v. Baltimore & Ohio R. Co., 168 U. S. 445, 448, 42 L. Ed. 537, 18 Sup. Ct. 105.

The rule is practically uniform in the states of the Union that suits will be entertained on rights of action for wrongful injuries causing death occurring in foreign states unless the statutes of the foreign states are penal in their nature, or contain provisions in conflict with the public policy of

Where the statute provides that "when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for the injury for the same act or omission," if the injured party in his lifetime makes any settlement or recovery for the loss occasioned to him and makes a release of his claim, no right of action survives in the personal representative.84 Where a person liable for the wrongful death of another compromises the claim for wrongful death and obtains a release from the decedent's sole heir and distributee, such release is not only available as a defense in an action thereafter brought by the administrator to recover damages for the death by wrongful act, but is also available in a court of equity as a basis to enjoin the suit at law.85

Where the amount of any recovery vests in the estate, a release by only one party interested in the estate can not be pleaded as a defense even to a definite or distinct portion of the claim upon which the action is based, for the reason that there are no means of ascertaining the amount by which the total damages should be diminished by reason of such facts. The amount recovered, being

the state in which they are sought to be enforced. In some of the states the foreign administrator is permitted to sue, but generally an administrator is appointed in the state of the forum, as has always been the practice in Tennessee.Sharp v. Cincinnati etc. R. Co., 133 Fenn. 1, 179 S. W. 375.

34 Berner v. Whittelsey Mercan

tile Co., 93 Kan. 769, Ann. Cas. 1916D, 350, 145 Pac. 567.

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See, also, Melitch Rys. etc. Co., 121 Md. 457, L. R. A. 1915E, 1163, 88 Atl. 229; Mooney v. Chicago, 239 Ill. 414, 88 N. E. 194; Legg v. Britton, 64 Vt. 652, 658, 24 Atl. 1016.

35 Kennedy v. Davis, 171 Ala. 609, Ann. Cas. 1913B, 225, 55 So. 104.

subject to the payment of the costs and expenses of administration as well as the debts of the estate, the interest of a distributee therein can not be ascertained in advance of final settlement, and the value or amount of the damages released or the proportion that the same would bear to the total amount of damages recoverable can not be ascertained in advance.36

§1491. As to Property Which Is Not an Asset of the Estate.

It is said that if the personal representative collects rents from the real property of the estate, he is estopped to deny that they were received by him as assets of the estate.37 On the other hand where the personal representative sold land of the estate at private sale and not at public sale as directed in the order of sale, it is held the money paid by the purchaser to the representative can not be received by him in his official capacity and be considered an asset of the estate since the sale is void on the face of the record; nor has the representative the power to enforce the payment of the purchase price.88 But an administrator who inventories property as belonging to the estate, who petitions the court and secures an order for the sale of such property, alleging it belongs to the estate and is necessary to be sold, and who represents to the purchaser that he will receive title to the property as described in the inventory, is estopped from thereafter claiming that the property belongs to himself individually.39

36 Cincinnati etc. R. Co. v. McCullom, 183 Ind. 556, Ann. Cas. 1917E, 1165, 109 N. E. 206.

37 Kothman v. Markson, 34 Kan. 542, 9 Pac. 218.

38 Schlicker v. Hemenway, 110

Cal. 579, 581, 52 Am. St. Rep. 116, 42 Pac. 1063.

39 Carruthers v. Whitney, 56 Wash. 327, 134 Am. St. Rep. 1114, 105 Pac. 831.

§ 1492. Liability Where Personal Representative Receives Property Not an Asset of the Estate.

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The general rule is that if an executor or administrator receives property to which he is not entitled in his official capacity and which is not an asset of the estate, the sureties on his bond are not liable in respect to it.40 If the personal representative receives property which is no part of the assets of the estate, even though in his report he charges himself with such property, this does not create a liability against him or the sureties on his bond."1 Where an executor or administrator has possession of property belonging to another, the owner of such property is not required to present a claim as if he were a creditor of the estate. A claim of specific property is not a debt and the claimant is not a creditor within the meaning of the probate law.42

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The non-liability of the personal representative or his sureties regarding property in the hands of the personal representative which does not belong to the estate has reference to the rights of those who are creditors or entitled to a distributive share. If the personal representative secures possession of property belonging to a

40 Jackson v. Wilson, 117 Ala. 432, 23 So. 521; Nickals v. Stanley, 146 Cal. 724, 81 Pac. 117; People v. Petrie, 94 Ill. App. 652; s. c., 191 Ill. 497, 85 Am. St. Rep. 268, 61 N. E. 499; Campbell v. Sacray, 19 Ky. Law Rep. 1912, 44 S. W. 980; Salter v. Sutherland, 123 Mich. 225, 50 L. R. A. 140, 81 N. W. 1070; Smith v. Combs, 49 N. J. Eq. 420, 24 Atl. 9; Moses v. Murgatroyd, 1 Johns. Ch. (N. Y.) 119, 7 Am. Dec. 478.

See § 1359.

41 Connecticut Trust etc. Co. v. Security Co., 67 Conn. 438, 35 Atl. 342; People v. Petrie, 191 Ill. 497, 85 Am. St. Rep. 268, 61 N. E. 499; Probate Court v. Williams, 30 R. I. 144, 19 Ann. Cas. 554, 73 Atl. 382. 42 Gunter v. Janes, 9 Cal. 643; Gillett v. Hickling, 16 Ill. App. 392; Probate Court v. Williams, 30 R. I. 144, 19 Ann. Cas, 554, 73 Atl. 382.

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third person, all authorities agree that the owner may sue such representative personally for the recovery of the property or its conversion, if wrongful. He is not relieved from liability even though he may have acted under an order of court, since the probate court can not arbitrarily by an order deprive an owner of his property. Some authorities, however, go further and hold that if an executor or administrator in his apparent official capacity receives property which he is not entitled to receive in such capacity, and actually applies such property to the use and for the benefit of the estate, he becomes liable therefor in his representative capacity.45 §1493. Torts Committed by Personal Representative Render Him Liable Individually.

The personal representative is individually liable for any tort committed by himself. An executor or administrator upon his appointment has certain legal duties imposed upon him regarding the estate which he is to administer. If real property of the estate is lawfully in his possession, it is his duty to keep it in safe condition so as to protect travelers along the street or inmates

43 Ashby v. Ashby, 7 Barn. & Cr. 444; Daily's Admr. v. Daily, 66 Ala. 266; Cronan v. Cotting, 99 Mass. 334; Sibbit v. Lloyd, 11 N. J. Law 163; Johnston v. McCain, 188 Pa. St. 513, 41 Atl. 592.

44 Crescent City Ice Co. v. Stafford, 3 Woods (U. S.) 94, Fed. Cas. No. 3387.

Contra: Call v. Houdlette, 70 Me. 308, 312, where he was held to be liable only in his representative capacity.

45 Schlicker v. Hemenway, 110 Cal. 579, 52 Am. St. Rep. 116, 42 Pac. 1063; Simpson v. Snyder, 54 Iowa 557, 6 N. W. 730; Call v. Houdlette, 70 Me. 308; Carideo v. Austin, 88 App. Div. (N. Y.) 35, 84 N. Y. Supp. 777; Wall v. Kellogg's Exrs., 16 N. Y. 385; Gaffney's Estate, 146 Pa. St. 49, 23 Atl. 163; Schmitt v. Jacques, 26 Tex. Civ. App. 125, 62 S. W. 956.

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