58 Ala. 310 | Ala. | 1877
The theory of the original bill is, that the respondents haYing, without authority of law, without a grant of administration from the proper tribunal, intermed-dled with, and conYerted the assets of' the intestate, are liable to account therefor to him, as the rightful representative. There is no aspect of the case, in which Mrs. Walter could be charged as an executor de son tort. The only intermed-dling with the assets in which she participated, before or after her marriage, was with the cattle, the household and kitchen furniture, and the gardening or farming implements. These were exempt from administration, and she was entitled to their possession, as against a rightful representative, or all who could not show a title paramount to that of the intestate. — B. 0. §§ 2061-63. The infant children, on separating from the family, were entitled to a division, and an equal share with her, of so much of such property as remained in specie. This is a right to be asserted by them, and not by the personal representative of the intestate. In reference to this property, she could not be guilty of a wrongful intermeddling, or conversion, which would render her an executor de son tort. To constitute such an executor, there must be an usurpation of the authority of the rightful representative.
The case, then, resolves itself into the single inquiry, admitting as it must be admitted, that Walter, by collecting and using the money of the intestate, which was on deposit, became liable as an executor de son tort, can he, when sued by the rightful representative, show there are no debts outstanding against the intestate, and that he has applied the assets for the use and benefit of the distributees, as they must have been applied if he had been the rightful representative. While an executor de son tort cannot, by his wrongful acts, acquire any benefit, he is protected in all acts, not for his own benefit, which the rightful representative may do; and it may be laid down, as a general rule, that all his lawful acts are good, affording him full protection. He could not at common law, as the rightful representative could, retain for his own debt; but this exception rested on the policy of preventing a race between creditors, to obtain possession of the assets, without taking administration. It would have enabled him to derive an advantage from his own wrongful acts. 4 Bac. Ob. 31-34; 1 Lomax Ex’rs, 177-185. There being no debts, no necessity for a rightful administration, except to make distribution, if the executor de son tort has applied the
The decree of the chancellor is affirmed.