5 Ala. 31 | Ala. | 1843
1. The first question which presents itself is, was the testimony of plaintiff’s witness, Hansel], properly admitted 1 The admissibility of his evidence depends primarily upon the fact, whether he had such all interest in the event of this cause as rendered him an incompetent witness. It may be regarded as a settled rule, that competency is always presumed until the contrary is shown. [Hall v. Gittings, 2 Har. & Johns. R. 112; Stoddard v. Manning, 2 Har. & G. Rep. 147; Callis v. Tolson’s ex’rs, 6 G. & Johns. Rep. 80; Saxton v. Boyce, 1 Bail. Rep. 66; Smith v. White, 5 Dana’s Rep. 382; Howell v. Delancy, 4 Cow. Rep. 427.] And the burthen of establishing that a witness is incompetent, lies on the party who makes the objection. [Marsden v. Stansfield, 7 B. & C. Rep. 815; Watts v. Garett, 3 G. & Johns. Rep. 355.] The evidence, of Hansell’s interest, in the event of the suit, is not his own admission, made under oath, but the testimony of a third person, who declares that the
2. It is not pretended, that the defendant was the rightful executor of the deceased debtor of the plaintiff’s, but it is contended that he so interfered with the personal property of the deceased, as to make himself liable as an executor de non tort. It is laid down generally, that the taking of goods of an intestate, or any intermeddling therewith by a stranger, will, as respects creditors, make him executor de son tort, and chargeable at least so far as assets have come to Ms hands. It is not however, every act of intermeddling, which will charge a man as an executor in his own wrong; if the interference is merely conservative, no such consequence will result from it. [1 Wms. on Exs. 139, 140; 1 Lomax on Exr. & Admr. 77.] So it is said, if a person sets up in himself a colorable title to the goods of the deceased, as where he claims a lion upon them, though he may not be able to make out Ms title completely, he will not be deemed an executor de son tort, [l Lomax on Exr. & Admr 77:] and in Ferrings v. Jarratt, [1 Esp. Ca. 335,] the Court say that one who takes possession under a fair claim of right does not acquire that character.
The first charge prayed by the defendant, supposes that a
3. It has been repeatedly holden, that where one is in possession of goods after donor or grantor’s death, under a fraudulent deed of gift, or other conveyance made to him, he is chargeable in respect to such goods as an executor de son tort. -Thus, where the inestatc had confessed a fraudulent judgment to defeat Iris creditors, and his goods were bought by the judgment creditor under a sale on the execution, it was considered as clear, that a creditor might maintain an action against such fraudulent vendee as an executor in Iris own wrong; although the administrator could not impeach the judgment: [Osborne v. Moss, 7 Johns. Reps. 161; Rattoon, et al. v. Overacker, 8 ib. 97,] see also Dorsey v. Smithson, 6 H. & Johns. Rep. 61; Edwards v. Harbin, 2 T. Rep. 587.] So also where the deceased in his life time, in fraud of his creditors, had made a donation of his effects to his children, it was held that a creditor who had recovered a judgment against his administrator, might file his bill in chancery against the donees and against the administrator de bonis non of the deceased, the administrator being dead. For in the case of fraudulent conveyances, the donee in possession, is an executor de son tort, although there be a rightful executor or administrator. The reason of which is, that the donee cannot be made r’esponsi-ble for the property, to the rightful representative, the gift being valid as against the parties, and as'against persons not creditors. If the donee were not liable as an executor in his own wrong, the property could not be subjected to the payment of the intestate’s debts; for the gift, though fraudulent, could not be set aside by the donor or his representative; [1 Lomax Exr. & Admr. 79, and cases cited in note; Chamberlayne v. Temple, 3 Rand. Rep.
4. It may perhaps be regarded as settled, that letters testamentary, or of administration, have no efficacy extra territorium: and that consequently an executor or administrator in virtue of a foreign probate or administration, has no capacity in other countries to sue or be sued; [Lomax’ Ex. & Admr. 119-241; Story’s Conf. of L. 421, and cases cited in Note.] But the liability of an executor de son tori, to bo sued in whatever country he may found, without reference to the jurisdiction in which the intermedling with the goods of the deceased first took place, is a very different question. Mr. Justice Story says, if an executor or administrator go into a foreign country, and without there administering, collect effects and debts of his testator or intestate, found or due there, it would seem upon general principles he would be liable as an executor do son tort. [Story’s Conf. of L. 424.] If he would be thus chargeable, though he had administered abroad, he could not occupy a more favorable position if it were shown that he had not been authorised by a foreign tribunal to take possession of the estate of the deceased. In Campbell v. Tonsey, [7 Cow, Rep. 64,] the Supreme Court of New York, went so far as to hold, that although an executor or administrator appointed in a neighboring State cannot be sued as such in New York, yet if ho collect the effects of his testator and bring them there,
This view of the case is decisive of the questions raised upon, the record, and our conclusion is, the judgment must be affirmed.