8 Johns. 126 | N.Y. Sup. Ct. | 1811
The plea is good, and the replication ill, because the taking out letters of administration legalized those acts which were tortious at the time. In Vaughan v. Browne, (Str. 1106. and 328.) the court of K. B. laid down this doctrine, that though a person who is sued, as executor de son tort, shall not defeat the suit, by taking out letters of administration pending the suit, because the suit was well commenced; yet that such an administration will legitimate all intermediate acts ab initio, and justify a retainer. This case is very fully reported in And. 328.; and Lord Kenyon, in Curtis v. Vernon, (3 Term Rep. 587.) cites this decision as good law. It must, therefore, be considered as overruling the more ancient decisions, which declared, that though an executor de son tort did afterwards take out letters of administration, yet it was still in the election of the creditor to charge him as executor or administrator. The case in Strange and Andrews cannot be reconciled,upon principle,with the former doctrine; and as that case was three times argued, and very solemnly decided, upon demurrer, it ought to prevail. It is the more reasonable rule; for, as the court observed, “ It would be very hard to lay it down, that if a man who sues for administration is opposed, and the cause runs out into any length, that the acting pendentelite should be construed such a wrongful executorship, as can never be purged so as to give him the benefit of retaining.” And if the letters of administration will purge the tort, so as to justify a retainer, there is ns reason why it should not cure the act altogether, by a re
