35 Ind. 415 | Ind. | 1871
Upon the trial of this cause, which was brought by the appellant against the appellee, by the court, without the intervention of a jury, there was a finding for the defendant, motion for a new trial made and overruled, and judgment for the defendant.
The only error properly assigned is the refusal of the
The complaint was in two paragraphs, by the plaintiff as executor of the will of Frederick Prebster, deceased, against the defendant as executor de son tort. In the first paragraph it is charged that the defendant unlawfully intermeddled with, and appropriated to his own use, a certain black horse, part of the personal estate of said deceased; and in the second paragraph he is charged with wrongfully and unlawfully intermeddling with, and appropriating to his own use, twenty hogs, also part of the said estate.
The answer was a general denial.
The evidence is set out in a bill of exceptions. In our judgment, it makes out a case against the defendant. The will gives the estate to the widow, “ for her own use and benefit or maintenance during her natural life,” and at her death all of said property “ not used for her maintenance ” is given to another person.
The evidence shows that the defendant, with the assent of the widow, soon after the death of the deceased, sold the horse mentioned in the first paragraph, and four of the hogs mentioned in the second paragraph. A part of the proceeds was paid out on debts of the deceased, part for supplies for the widow, and the residue put out at interest for her use.
The inventory and appraisement, which are in evidence, show that the widow selected and took seven hundred and eighty-three dollars and thirty-five cents of personal property, besides some money which was left in her hands by the deceased, which she did not report to the executor or to the appraisers, amounting, as she says, to two or three hundred dollars. The widow had no right to sell the horse or the hogs, nor could the defendant derive any legal authority from her to do so. The fact that he made the sale under her direction and accounted to her for the proceeds, or applied them as she directed, is no justification.
Regarding Mrs. Prebster as a legatee under the will, she
This property or the proceeds thereof, for aught that appears in the evidence, may have been necessary to pay the' debts of the estate. All of the personal property, except: what the law gave the widow, then five hundred dollars, was. applicable, in the first place, to pay the debts, &c., of the deceased, and if not needed for that purpose, then it might go. to the legatee. In 2 G. & H. 488, sec. 15, it is provided as. follows: that “every person who shall unlawfully intermeddle: with any of the property of a decedent, shall be chargeable' as an executor of his own wrong, and shall be liable to an: action in the court of common pleas, or any other court of.' competent jurisdiction, by any creditor or other person interested in the estate of the decedent, to the extent of the; damages occasioned thereby, and shall account for the full: value of such property, with ten per centum thereon, and! may be examined under oath touching such intermeddling, and testimony thus elicited shall not be thereafter used against him in any prosecution; and such person may also be attached and imprisoned in the discretion of the court, untili its orders in the.premises are complied with; and no debt’: due such executor from the decedent, shall be deducted from: the value of any such property.”
The degree or extent of the intermeddling is not very material. A veiy slight circumstance of intermeddling with the-goods of the deceased will make a pérson executor desoír tort. It has been the1 policy of the law to discourage and1, prevent all improper interference with the property of the' deceased. After the death of a person, there is unavoidably some lapse of time before a regular executor or administrator can be appointed and clothed with power to act, and it is • during this time that acts of unwarrantable intermeddling; generally take place. If the rule protecting estates from; such acts were not enforced with reasonable strictness, great.
In Chandler v. Davidson, 6 Blackf. 367, it was held that the circumstance alone that the widow remained in possession of part of the personal property after the death of her husband, did not make her liable as executor de so?i tort; and see, also, Brown v. Benight, 3 Blackf. 39. In Brown's Adm’r v. Sullivan, 22 Ind. 359, it was decided by this court that when one took possession of the property of the deceased, at the request of the widow of the deceased, merely for the purpose of taking care of it, and took proper care of it, doing it no injury, until letters of administration were taken out on the estate, and then delivered up the same to the administrator, he did not thereby render himself liable as an executor de son tort.
The fact that the defendant acted as the agent or servant of the widow, does not protect him from liability. It seems settled that in such case both may be liable. 1 Williams Ex’rs, 226 and 227, and note (1).
It seems that the executor, as well as a creditor, may sue an executor de son tort. 1 Williams Ex’rs., 232 and 242. And so we construe the statute above quoted.
It may be proper to say that an executor de son tort is en-' titled to be allowed for amounts paid by him to the proper
But this can only be allowed where there are sufficient assets to pay all the debts of the deceased; for otherwise one creditor would be paid in full, and others nothing. If there be a deficiency of assets, he should be allowed only the proportionate share of the debts which he has paid.
In some of the states, it seems that a creditor cannot sue an executor de son tort, but the right of action is exclusively in the executor or administrator, and the amount recovered is distributed as other assets. Willard Ex’rs, 140. Under our statute the rule is different.
The judgment is reversed, with costs to the appellant.
Petition for rehearing overruled.