12 Conn. 212 | Conn. | 1837
The 15th section of our statute for the settlement of estates, testate, intestate, and insolvent,” provides, “ That if any person shall sell or embezzle any of the goods or chattels of any person deceased, before he or they shall have taken out administration and exhibited a true inventory of all the known estate, he or they shall stand chargeable and be liable to the actions of the creditors, and other persons aggrieved, as being executors in their own wrong.” Stat. 203. tit. 32. ‘
There are many acts of a stranger, which will constitute him an executor de son tort ; such as taking possession of the assets and converting them to his own use, paying debts or legacies, commencing actions, releasing debts, &c.; and indeed, any acts done, which belong to the office of an executor, and furnish evidence to creditors of his being such. Toller, 37. 9 Petersd. Abr. 455. 1 Sw. Dig.l451. And yet there are other acts equivocal in their character, and such as are ordinarily performedi by an executor, which, when explained, as they may always be, will appear to be mere acts of kindness and charity, and such as will not subject a stranger to the actions of creditors ; such as locking up and preserving the goods, ordering the funeral obsequies, making a schedule of assets, feeding the cattle, repairing the houses, &c. All these, and perhaps many other acts, may be necessary for the comfort of the family and the preservation of the estate, before a will can be found and proved, and before administration can, with propriety, be commenced. 2 Bla. Com. 507. 11 Vin. Abr. 207. Harrison v. Rowley, 4 Ves.jr. 216. 3 Bac. Abr. 22. Toller, 37. 9 Petersd. Abr. 455. 1 Sw. Dig. 452.
It was insisted, with much earnestness, at the bar, that whatever may be the principles of the common law, or whatever may be true under our own law, in the case of solvent estates ; yet if an estate be insolvent, there can be no such character as an executor de son tort consistently with the principle of average payment, adopted and regulated by our laws. This idea has been derived, we suppose, from a remark of the late Chief Justice Reeve, in the case of Sackett v. Mead, 1 Conn. Rep. 13. 25.; which is, that “ no such character as executor de son tort can possibly exist in our law, where the estate is insolvent.”
It is generally true, at common law, that there can be no executor in his own wrong, where there is either a rightful executor or administrator ; and it can not readily be seen, how any necessity in this state can exist, in such case, for treating any person as such ; because all the assets can be rendered available for the payment of debts, by a resort to the executor or administrator; both of whom, by our law, are made liable
We can have no doubt, therefore, but the defendant might have been, upon proper and sufficient evidence, made liable as an executor in his own wrong. And whether such evidence existed and was adduced on the trial, it was the province of the jury to determine. The jury, by their verdict, decided, that the evidence was insufficient for this purpose ; and now a motion for a new trial is made, because this verdict, as the plaintiff claims, was against the evidence in the cause.
The power of granting new trials for verdicts against evidence, has been frequently exercised in this state, since the case of Bartholomew v. Clark, 1 Conn. Rep. 472. In that case, this power, it is believed, was first recognized here; and the principles by which it should be exercised, were then established. “It should be exercised only in clear cases, which will rarely occur.” The same principle is in effect repeated, in Palmer v. Hyde, 4 Conn. Rep. 426., and Talcott v. Wilcox & al. 9 Conn. Rep. 134.; in the former of which it is said, that “ A verdict must be manifestly and palpably against the weight of evidence, to authorize the granting of a new trial on that ground.”
The case on the part of the plaintiff was attempted to be proved, by only one witness ; and this witness spoke only of facts derived from the confessions of the defendant: a source of proof not the most satisfactory.
That the defendant had in his possession a small amount of goods belonging to the deceased, was admitted; and the material question before the jury was, what was the character of his possession 1 Did he so deal with them, as within the
Upon the w hole; although we might, and probably should, on the trial of this action, with this evidence before us, have differed in opinion with the jury; yet we cannot say, that the case was so clear of all doubt, and the verdict so manifestly and palpably against the weight of evidence, as to call for so strong an exercise of judicial prerogative, or discretion, as the plaintiff claims at our hands. For the jury may have found very plausible reasons, from the evidence detailed upon this motion, for believing that the defendant’s controul over these goods was induced by motives of charity alone, rather than by any intention to embezzle them, or otherwise improperly to withdraw them from the creditors of the deceased. We cannot, therefore, advise a new trial in this case.
New trial not to be granted.