| Miss. | Oct 15, 1856
delivered the opinion of the court.
This was an action brought by the plaintiff against the defendant in error, who was charged as executor de son tort, of Theodore Lemle, deceased, to recover the amount of a promissory note of the intestate due the plaintiff.
The defendant pleaded, 1st, flene administravit: 2nd, ne unques executor; upon which issues were joined.
The verdict and judgment being for the defendant, the case is brought here by the plaintiff.
Upon the first point, it is sufficient to say, that the evidence which consists of the testimony of many witnesses, is conflicting; and if that was the only issue involved in the case, we would not feel justified in disturbing the verdict, because in cases of conflicting testimony, and when the issue depends alone upon such testimony, it is the peculiar province of the,jury to weigh the testimony, and the verdict should seldom be disturbed in such cases.
But when there are several issues in the case, and the verdict is general, we cannot determine upon which of them the verdict is based; and if it might have been upon an issue upon which there was no material conflict of testimony, and it be erroneous with respect to that issue, that will be good ground for setting it aside, especially if there be erroneous instructions in relation to the law involved in that issue.
We will, therefore, proceed to examine the second proposition above stated, assuming that there was evidence, as the record shows there was, from which the jury might have found that the goods and merchandize in question were the property of the intestate.
The court, at the instance of the defendant, instructed the jury as follows:
That under the plea of plene administravit, an executor de son tort may give in evidence payment of the just debts of the deceased to any creditors, in the same or any superior degree.
That if the jury believe from the evidence, that the defendant, although he might previously have taken possession of assets of Theodore Lemle, had, at the time of the service of the writ in this case, paid out and expended all of the same, or their full value, in
It appeared by the evidence, that after the intestate’s death, the defendant had paid a debt of his, amounting to about one hundred and seventy-four dollars, and that the property in his hands, alleged to belong to the intestate, was worth, at least, that sum. The question presented, therefore, is, whether an executor de son tort is justifiable in appropriating the assets to the payment of one debt to the exclusion of other debts of the intestate.
The rule is well settled, that an executor d& son tort is not liable beyond the assets which came to his hands, and that he is protected in all acts, not for his own benefit, which a rightful executor may do. 1 Williams, Ex’ors, 154. And in England he could discharge himself by showing payment of debts of the intestate, in the same or of a superior degree, as a rightful executor would have been justified in making such payment. But there is no authority and there can be no reason, for holding that he is justified in applying the assets to the payment of debts, which the rightful executor would not have been authorized- to pay; and, therefore, he would not have been justifiable in England in paying the debts of an inferior degree, in preference to those of a superior degree.
By our law, if there be not assets sufficient to pay all the debts of the deceased, it is the duty of the executor or administrator to apply them rateably to the payment of all the debts, except such as operate as liens and are entitled to preference; and if he pay one debt, not being a lien, to the exclusion of others, he is guilty of a devastavit. Black v. Barton, 6 S. & M. 239; Randolph v. Singleton, 12 Ib.; Harris v. Fisher, 5 Ib. 74.
An executor de son tort is certainly entitled to no greater indulgence than a rightful, executor, and if the latter would be guilty of a devastavit by an improper application of the assets to the payment of one debt in exclusion of others entitled rateably to their shares of the assets, the same conduct would render one who had no legal right to intermeddle with the estate an executor de son tort, and liable, as such, to other creditors. Otherwise a party who was a mere wrong doer and trespasser upon the estate, would be entitled to greater privileges and protection than a person to
If a party who has taken possession of the assets of an estate, undertakes to justify himself for his unlawful intermeddling, by showing that he has applied them to the payment of the debts of the deceased, he does so at his peril, and must show that he has applied them in the same manner in which they could have been lawfully applied by the rightful executor; and if it appear that he has paid one particular debt not entitled to preference, leaving others unpaid, he cannot claim that he has done what the law required to be done with the assets, in a due course of administration, but must be liable as an executor de son tort to the other creditors.
Under this view of the subject, and with reference to the evidence in the record, the first instruction was too general, and was calculated to mislead the jury; and the second was clearly erroneous.
The judgment is, therefore, reversed, and the cause remanded for a new trial.