The Orphans Legacy, Part 2 · Chapter 8
CHAP. VIII. Of an Executor in his own wrong.
1. Who is an Executor in his own wrong; and what Acts make him ſuch.
2. How far an Executor in his own wrong is chargeable; and how impleadable.
3. What Acts ſhall not make a man Executor in his own wrong.
4. A caution to avoid wrongful Executorſhip, as alſo for Creditors in their Suj…s againſt wrongful Executors.
5. Law-Caſes to this Subject Relating.
1. AN Executor in his own wrong, is he that takes upon him What an Executor in his own wrong is; ſee Terms of Law, Kelway 59. 93. Dyer 105, 157, 255. Coke 5. 32. Brook. tit. Exec. 162.the Office of an Executor by intruſion, not being ſo Conſtituted by the deceaſed, nor for want of ſuch Conſtitution Subſtituted by the Court to Adminiſter. Yet this extends not to Overſeers, who ſeeking only to preſerve and keep in ſafety the deceaſed's Goods from damage, without any diſpending or diſpoſing the ſame, are excuſed from being Executors in their own wrong: a8, & 9 Eliz. Dyer. 255, 256.But if one who neither is Executor nor Adminiſtrator ſhall uſe the deceaſed's Goods, or poſſeſs himſelf thereof, this is a ſufficient Adminiſtration to charge him as Executor in his own wrong, whereby the deceaſed's Creditors may recover their Debt againſt him, if there be no other Executor or Adminiſtrator lawfully Conſtituted, who hath Proved the Will or Adminiſtred. bCoke, lib. 5. Relat. fo. 33.Yea, though there be a lawful Executor, yet if any other take theſe Goods, claiming them as Executor, does pay or receive Debts, or pay Legacies, and intermeddle as an Executor; In this Caſe, becauſe of ſuch expreſs claiming to be Executor, he may be charged as Executor in his own wrong, although there be another Executor of right. cl. in cauſ. ff. de Minor.Alſo, he that takes the deceaſed's Goods to ſatisfie his own Debts or Legacy, ſhall be charged as Executor in his own wrong. dCoke ubi ſupra. fol. 30. in Coults Caſe.Alſo, if one do either pay Debts of the Teſtators, or receive Debts, or make Acquittances for them, or demand the Teſtators Debts as Executor, or give away Goods which were the Teſtators, or deliver money of the Teſtators for Fees about Proving the Will; or being Sued as Executor do take it upon him, and plead in Bar as an Executor; all theſe are an Adminiſtration and will make him Executor in his own wrong, although there be an Executor or Adminiſtrator of right: eOffic. Exec. c. 14.But if he payes Fees or Debts only with his own monies, then it is otherwiſe. Likewiſe, if he that is named Executor in the Will, take Goods of the Teſtators and convert them to his own uſe; yea, if he do but take them into his hands without converting them; yea, if the Wife named Executrix or not named, take more Apparel of her own than is neceſſary, this is an Adminiſtration: but if by the aſſent or delivery of the Executor, it is not. fIbid. c. 3. & Dyer. 105. & 166. & 33 H. 6. 31.And if he that from the Judge hath Letters ad Colligendum, do ſell or diſpoſe of any Goods, though otherwiſe ſubject to periſhing, it makes him an Executor in his own wrong; yea, though by the ſaid Letters ad Colligendum warranted ſo to do, for the Judge himſelf may not ſo do. gIbid. cap. 14.So that if the Ordinary without formal Letters of Adminiſtration Granted, do give one Licence and Authority to ſell the Goods of the Inteſtate quae peritura eſſent, and he doth it accordingly, he which doth ſo Adminiſter, ſhall be as an Executor of his own wrong. h9 Eliz. 256. Dye….Alſo if another man doth take the deceaſed's Goods and ſell or give them to me, this ſhall charge him as Executor of his own wrong, but not me. Alſo, if a man make a Deed of Gift of all his Goods and Chattels to another and dieth Inteſtate, and this Deed be but fraudulent, and in truſt, and the Donee after the death of the Donor doth diſpoſe of theſe Goods and Chattels; in this Caſe, and by theſe means he ſhall be Executor in his own wrong: iSheph. Epit. verb. Teſtam. ubi citat Goldsb. 116. pl. 12. Brownl. 1. part. 384, 385.But if the Deed of Gift be bona fide in ſatisfaction of a juſt Debt, and the Goods be no more than the Debt, it may be otherwiſe: But if the Goods be much more than the Debt, there it ſeems he ſhall be charged ſo for the Overplus, and that whether he have them in poſſeſſion or not. kAnd ſo was the Opinion of Juſtice Jones at Gloſter Aſſize, 9 Char.So that it is evident that a man may make himſelf Executor in his own wrong, either by Proving the Will with the deceaſed's money, or by converting his Goods to his own uſe, or by delivering his Money or Goods to his Creditors in ſatisfaction of their Debts, or by receiving Debts due to the deceaſed, or by releaſing them, or by delivering any Legacies in kind given by the deceaſed, or by taking a mans own Legacy before the Executor hath accepted of the Executorſhip, or aſſented to the delivery thereof, or by ſuing as Executor for any debt due to the deceaſed, or by anſwering as Executor to any Plea commenced againſt him as ſuch, or by ſelling any part of the deceaſed's Goods as his Executor, or by diſcharging the Mortgages of the deceaſed with his money; by theſe and many other wayes a man may become Executor in his own wrong.
2. The Executor in his own wrong thereby renders himſelf not only obnoxious to the Action of the Right Executor, but alſo to the Suits of the Teſtators Creditors, yet but only ſo far as the Goods which he ſo wrongfully Adminiſtred do amount unto. lCop. lib. Inſt. … 5.And this uſurping Executor, or Executor in his own wrong, is not in Suit to be diſtinguiſhed from the Lawful Executor by Name or Title, but to be Sued generally by the Name or Title of the Executor of the Laſt Will and Teſtament of the Defunct; which if he deny, he muſt plead that he neither is Executor nor Adminiſtred as Executor; yet where there is a Lawful Executor and another doth Adminiſter in his own wrong, it is at the Election of the Creditors either to Sue them joyntly together, or one or both of them ſeverally and by himſelf. But Note, that there cannot be an Adminiſtrator by wrong, or in his own wrong, for the Law knows no ſuch Appellation. Alſo, if the next of Kin to the deceaſed procure ſome Inſolvant perſon or ſtranger not only to take out the Letters of Adminiſtration, but alſo to make himſelf a Deed of Gift of all the Goods for an invaluable conſideration, he may be thus charged for the Overplus of the worth of the Goods more than he gave, if not for the whole. And if a Debt or procure ſuch an Adminiſtration to be taken out, and then get a Releaſe of his Debt from ſuch Adminiſtrator, this may make him chargeable as Executor in his own wrong for ſo much as his Debt doth amount unto. mStat. 43 Eliz. cap. 8. & Plich. 7, Jac. C. B. per Chief Juſtice.So that all wrongful Executors of what kind ſoever, do, for ſo much as they have diſpoſed, and no more, make themſelves chargeable to any Creditor or Legatee of the deceaſed as far forth as any Lawful Executor is chargeable. nDyer 255, 166. Coke 5. 34. 9. 39. & 5. 33. & Plowd. 148. 145. & 33 H. 6. 31. 8. Dyer 210. & Plowd. 184.And if Adminiſtration be granted to any one after he hath intermedled wrongfully with the deceaſed's Goods, this will not purge his wrong done before; and therefore in this Caſe a Creditor may charge him as Executor in his own wrong, or as a Lawful Adminiſtrator at his Election.oCoke 5. 33. Kelw. 59. Paſch. 39 Eliz. & Brownl. 1. part. 103. & 2. part▪ 184, 185.
3. When the Will is Proved, or Adminiſtration granted, and others then intermeddle with the Goods, this ſhall not make thoſe others Executors in their own wrong by conſtruction of Law, becauſe there is then another Executor of right againſt whom the Creditors may bring their Action; pL. in Cauſ. ff. de Minor.and ſuch wrongful intermedlers with the Goods when there is another Executor of right, are liable to be Sued by him as Treſpaſſers. Alſo, if a man perform only acts of Charity or of Humanity, as feeding the Teſtators Cattle, qFitzh. tit. Execut. nu. 45.or preſerve them by taking them into his cuſtody, or diſpoſe of them only about the Funerals, rBrook tit. Admin. nu. 6. 28.or make an Inventory thereof, sMantic. de Conject. ult. vol. lib. 12. tit. 9. n. 159.or deliver the Widow only her convenient Apparel, or as a meer Treſpaſſer entereth to his Goods whether quick or dead, converting the ſame to his own not to the Teſtators uſe, he doth not hereby become Executor in his own wrong when there is an Executor or Adminiſtrator of right. tBroo. tit. Execut. nu. 16. & tit. Admin. n. 42.But if one deliver to the Widow more of her Apparel than is convenient to her degree, or if ſhe take, or another deliver to her more than ſuch, he or ſhe thereby becomes Executor in their own wrong. u11 H. 6. 28. & 33 H. 6. 31. & … 1 Eliz. Dyer 166.But if a man lodge in my houſe and die there, leaving Goods therein behind him, I may keep them until I can be lawfully diſcharged of them, without making my ſelf chargeable as Executor in my own wrong. wTrin. 17 Jac. per Chief Juſt.Or if I take the deceaſed's Goods by a miſtake, ſuppoſing them to be my own, or under colour of a Title, this will not make me Executor in my own wrong: Or if one do but take a Horſe of the deceaſed's and tie him in his own Stable, this makes him not Executor in his own wrong: Or if I do only lay up the Goods of the deceaſed to preſerve them in ſafety for him that ſhall have right to them. This will make me no more chargeable than if I took an Inventory of all the deceaſed's Goods. xCoke 5. 34. & Kelw. 63.Nor is an Executor in his own wrong chargeable as ſuch where an Executor of right, or Adminiſtrator hath fully Adminiſtred the deceaſed's Goods. yCrooks Rep. in Caſ. Whitmere verſ. Porter. Mich. 3 Char.Nor ſhall any light acts or intermedlings make one an Executor in his own wrong where there is a rightful Executor, and a Will by him Proved, or Adminiſtration committed, or where there is another of right to be ſued; for whoſo wrongfully takes the deceaſed's Goods from the rightful Executor or Adminiſtrator, makes himſelf not an Executor but a Treſpaſſer to them; though it would have made him an Executor in his own wrong, had there not been an Executor by right, zCoke, lib. 5. 33, & 34.who (notwithſtanding the other) ſtands charged with, and is liable for the debts of the Teſtator.
4. Whoſoever feareth to be adjudged Executor in his own wrong, his ſafeſt courſe is not to meddle at all, but utterly to abſtain from all manner of uſe of the deceaſed's Goods; and eſpecially let him take heed that he do not ſell any of the deceaſed's Goods, nor receive any of his debts, nor kill any of his Cattle. aBrook. tit. Adminiſt. nu. 26.And if one after wrongful Adminiſtration of ſome of the deceaſed's Goods take Adminiſtration, and after ſuch Adminiſtration taken be ſued by a Creditor for a Debt as Adminiſtrator, and after ſuch wrongful Adminiſtration there remain not Goods ſufficient to pay that debt, the Creditor can recover no more than remained after ſuch rightful Adminiſtration taken, becauſe he ſued him as Adminiſtrator; therefore he ſhould in ſuch caſe have ſued him as Executor, becauſe he was Executor in his own wrong before he took Letters of Adminiſtration; and ſo then the Goods which were Adminiſtred before the taking ſuch Letters of Adminiſtration muſt thereby be included to be liable for the debt due to the Creditor, otherwiſe not. b21 II. 6. 8.Therefore Creditors muſt look before they ſue, for elſe they know not whether he ſo intermedling be Executor or Adminiſtrator, nor conſequently how to found their Action aright, and ſafely for good ſucceſs; ſince a ſute againſt an Executor as Adminiſtrator, or againſt an Adminiſtrator as Executor will prove frivolous; one Errour in a Foundation may be the Foundation of many in the Superſtructure.
5. A. brought debt upon an Obligation of forty pound againſt L. as Executor of P. The Defendant pleaded, That P. in his life time was indebted to him in forty pound, and that there came to Mich. 6 Jac. B. R. Alexander & Lanes Caſe, with Weaſt and Lanes Caſe. Yelv. Rep.his the Defendants hands Goods to the value but of ten pound, which he retained towards ſatisfaction of his own debt, and averr'd, that no other goods beyond that value of ten pound came to his hands to be Adminiſtred, &c. The Plaintiff replyed, and ſhewed, That the Defendant is Executor in his own wrong to P. and that he hath much other goods belonging to P. to be Adminiſtred at S. in the County of N. & conclude, & hoc paratus eſt verificare, &c. The Defendant rejoyn'd and demanded Judgement, whether the Plaintiff ſhall be admitted to Plead, That the Defendant is Executor in his own wrong, inaſmuch as himſelf hath by his Declaration affirmed him to be Executor Teſtamenti; upon which the Plaintiff demurr'd in Law: To which point in Law the whole Court would hear the Plaintiff, for he could well Reply, That the Defendant (notwithſtanding the Declaration) is Executor in his own wrong, for there is no other Form de Court, Ireland. 5. Rep. fol. 30.as was adjudged in Coulters Caſe: But per tot. curiam the whole Plea is diſcontinued; for the Defendant having Pleaded, that as to the goods to the value of ten pound, he had retained them for debt to himſelf, and that he had no more goods to be Adminiſtred, it was an Offer of a good iſſue; and then when the Plaintiff replyed, that he had other goods, &c. & conclude, & hoc paratus eſt verificare, it is not good, for he ought to have ſaid, & hoc petit quod inquiratur per patriam, for that there was any ſurpluſage of goods when denyed by the Defendant, and urged by the Plaintiff, he ought to have come to an iſſue, but could not by reaſon of the ill concluſion. And in the ſame Term between Weaſt Plaintiff and Lane the ſame Defendant; where Weaſt demanded four pound debt againſt Lane as Executor, ut ſupra, and all the reſt of the Plea was ut ſupra, Judgement was given for the Plaintiff, becauſe the Defendant had confeſs'd goods to the value of ten pound in his hands, which is more than the debt in demand; and therefore it being in the judgement of the Law, That an Executor in his own wrong cannot retain to pay himſelf, Judgement ſhall be given only upon the Defendants own confeſſion; and ſo it was: Quod nota. Yelv. a Counſel pro Quaerent.
Debt againſt the Defendant as Executor of J. S. he pleads that he had taken Letters of Adminiſtration, Judgement of the Writ, &c. The Plaintiff replyed, that the Defendant Adminiſtred de ſon tort, and after took Letters of Adminiſtration, Judgement, &c. Trin. 28 Eliz: B. R. Stubs verſ. Rightwiſe. Cro. Rep. par. 3.And upon this it was demurr'd, Godfrey for the Defendant argued, That now the name of Executor is lawfully changed before the Action brought, and therefore is to be ſued by his new name as Adminiſtrator; 9 Ed. 4. 33. 21 H. 6. 5. 18 H. 6. 29. 13 H. 4. Executors 118. Coke contra; for when by his tortious Adminiſtration he hath given advantage to be ſued as Executor, he cannot by his own act purge this tort, and cauſe the Plaintiff to ſue him by another name, but the Plaintiff hath election to ſue him one way or other, for he ſhall take no advantage by his own Tort; as if one in Execution eſcapes, and is taken away by the Gaoler, he ſhall not have an Audita Quaerela; and it will be a miſchief if the Plaintiff ſhall be compelled to ſue him as Adminiſtrator, for it may be that whilſt he Adminiſtred of his own wrong he waſted the goods; and if he be only ſued as Adminiſtrator, he ſhall only be charged of the goods which came to his hands ſince Adminiſtration; 12 R. 2. Adminiſtrators 21. And it was afterwards adjudged, that the Writ was good, and that the Defendant reſpondra ouſter. Nota, if Judgement be given againſt an Executor upon Demurrer, and Execution be awarded, the Sheriff cannot return, nulla habet bona Teſtatoris, but is to return a Devaſtavit, as if it had been found againſt the Executor by Verdict, for per Curiam he hath charged himſelf by his own Plea.
Debt per &c. vers &c. as Executor, he pleaded Nunques Executor &c. and on ſpecial verdict found, that Adminiſtration of the Anonymus. Hill. 38 Eliz. C. B. Cro. Rep. par. 3.goods of the Teſtator was committed to the Wife of the Defendant, who is dead, and that he kept bonam partem bonorum in his hands, and ſold them. Williams moved, this Verdict was void for the uncertainty, for bonam partem is altogether uncertain; but it was held to be well enough, for if he detain any part, it makes him Executor de ſon tort, and wherefore it was adjudged for the Plaintiff.
Debt againſt R. as Executor of T. the Defendant pleads that T. Paſch. 39 Eliz. C. B. Bradbury verſ. Reynell. Cro. Rep. par. 3. Pl. 27.died Inteſtate, and that certain of his goods came to the Defendants hands, and afterwards Adminiſtration was committed to J. S. to whom he had delivered the ſaid goods. Et per Curiam, it is not any Plea, for if Adminiſtration had been committed to himſelf, it would not have purged the firſt tort: So here, although Adminiſtration is committed to a ſtranger, in regard that he hath once made himſelf chargeable to the Plaintiffs Action as being Executor de ſon tort &c. he ſhall never after diſcharge himſelf by matter ex poſt facto. Wherefore &c. Adjournatur. & vid. 21 H. 6. 8. 9 Ed. 4. 47. 2 R. 3. 20.
The Executor of A. brought Action of Debt againſt B. as Executor of D. upon a Bond, the Defendant pleaded, that D. died Inteſtate, Trin. 12 Jac. C. B. Keble & Osbaſten's Caſe. Hob. …9.and that before the Writ brought, Adminiſtration of his goods was committed to N. who Adminiſtred and yet doth; the Plaintiff replyed, That D. died Inteſtate, and before the Adminiſtration granted divers goods of his came to the Defendants hands, which the Defendant as Executor of the ſaid D. Adminiſtred, ſeu aliter ad ſuum proprium uſum diſpoſuit: whereupon Iſſue being joyned, it was found for the Plaintiff; for ſince there was an Executor before the Adminiſtration afterwards granted, the Plaintiff had cauſe of Action veſted in him, which ſhall not be taken away by ſuch Adminiſtration afterwards granted, though it be before the Action brought; and ſo much the rather, becauſe the goods taken by wrong before the Adminiſtration, ſhall not be Aſſets in the hands of the Adminiſtrator, till they be recovered, or damages for them.
A Woman Executrix taketh a Husband; afterwards they are Divorced upon a Pre-contract; the Wife Appeals to the Delegates; and pendant the Appeal the Husband Adminiſtreth the goods, and then dieth. It was a Queſtion, whether the Husband ſhould be ſaid to be an Executor in his own wrong? vid. 2 Jac. Co. 5. par. 2 Mar. Dyer, 105, 106.Reads Caſe 33. That when a man dieth Inteſtate, and a ſtranger taketh his goods, and uſeth them, or ſells them, he is an Executor Dyer ibid. & Co. 5. par. 33. vid. Porter's Caſe. 1 Eliz. Dy. 166. acc.of his own wrong; for they to whom the deceaſed was Indebted have not any other againſt whom they can bring their Actions for recovery of their Debts: And ſo note, that the very ſeiſure of goods will make one an Adminiſtrator of his own wrong.
Debt againſt G. as Executor to H. the Defendant pleads, that H. the Teſtator was bound in a Stat. of One Hundred Pound, and beſides that he had not Aſſets; and hereupon they were at Iſſue, Paſch. 40 Eliz. B. R. Ireland verſ. Coulter. Cro. Rep. par. 3. vid. Rep. at large.and a ſpecial Verdict found, That the Defendant was Executor de ſon tort demeſne, and that the Teſtator was indebted unto him, and that he retain'd divers goods to ſatisfie that debt due unto himſelf, and over and above then to ſatisfie the Recognizance he had not in his hands, &c. & ſi, &c. It was argued by Tanfield and Goldſmith for the Plaintiff, and by Coke for the Defendant. The ſole point was, whether an Executor de ſon tort may retain goods to ſatisfie himſelf? And Coke moved that he well might; and the Plaintiff by this Action againſt him hath allowed him to be rightful Executor; wherefore the finding that he was Executor per tort is not material; and he being allowed to be Executor, may do all things as an Executor, viz. pay Debts, or any other Lawful Acts; and as he may do it to a ſtranger, ſo he may pay himſelf. Gawdy and Fenner were of his Opinion. For as he ſhall be charged by reaſon of his poſſeſſion: Like reaſon it is, he ſhould be allowed all Lawful Acts; and this is here a Lawful Act: as where &c. Popham and Clinch è contra: For an Executor de ſon tort ſhall never have any benefit by his Malefeſance; and &c. A Precedent was cited, Paſch. 32. Eliz. in C. B. That an Executor de ſon tort might not retain to ſatisfie himſelf; wherefore &c. Afterwards upon another day it was moved again, and the Court ſaid, They were reſolved, That an Executor de ſon tort de meſme cannot retain goods to ſatisfie himſelf his own debt. And Popham ſaid, That divers of the Juſtices in Serjeants Inn (to whom he had propounded the Caſe) were of that Opinion, and that they were reſolved to enter Judgement for the Plaintiff: But it was then ſurmiſed to the Court, that the Defendant was dead, and thereupon a ſtay of Judgement was prayed; but the Court would not ſtay it upon ſuch ſurmiſe: but upon the Plaintiffs prayer Judgement was entered, 5. Co. 20.
Ejectione firmae, for Whites Cloſes, upon Not Guilty it appear'd upon the Evidence, That a Leaſe for years was granted to one Okeham, who died Inteſtate, and Anne his Wife aſſigned it per paroll Paſch. 25 Eliz. B. R. inter Kenri…k & Burgeſs. Moo. Rep. n. 273.to one Burgeſs, and after ſhe got Letters of Adminiſtration, and made an Aſſignment thereof to one Kenrick. And the Court directed the Jury for Kenrick the laſt Vendee; yet they agreed, That if one Enter as Executor of his own wrong, and ſell Goods, and after obtain Letters of Adminiſtration, the Sale is good; but in this Caſe there is a Term in Reverſion, whereof no Entry can be made, nor can any man therein be Executor of his own wrong; and therefore the firſt Sale to Burgeſs, before Adminiſtration, is utterly void.
At the Kings Bench in Debt, all the Juſtices of England being Hill. 40 Eliz. B. R. Colter verſ. Ireland. Moo. Rep. nu. 696.Aſſembled at Serjeants Inn, it was Adjudged, That an Executor of his own wrong cannot pay himſelf either Debt or Legacy.
Debt againſt one as Executor; the Defendant pleaded, that the Paſc. 34 Eliz. C. B. Bradbury & Reynells Caſe. Cro. 3. Part. 565. Hughe's Abridg. Vol. 3. tit. Execut.deceaſed died Inteſtate, and that certain of his Goods came to the Defendants hands, and that Adminiſtration was committed to J. S. to whom he delivered the Goods. It was adjudged no Plea, in regard he had once made himſelf chargeable to the Plaintiffs Action as Executor of his own wrong, he ſhall never diſcharge himſelf by matter ex poſt facto.
Note, in an Action of Debt brought againſt A. as Executor in his own wrong, he pleaded ne un que Executor, and it was found againſt him, and Execution was awarded againſt him for the whole Vid. Noy. 69. Hughe's Abridg. ibid. tit. Execut.debt, viz. Sixty pound for his falſe Plea, although in truth he had not intermedled, but with one Bedſtead of ſmall value; and ſo it was ſaid it was adjudged, 40 Eliz. in C. B. in Kitchin and Dixons Caſe.