14 Or. 236 | Or. | 1886
This action was brought by the plaintiff, as administratrix of the estate of John Rutherford, deceased, to recover damages for the conversion of personal property belonging to the estate. The complaint, in substance, alleges that the defendant took possession of a stock of unfinished buggies and materials, the property of John Rutherford, after his death, and disposed of a part of them. The defendant Thompson, after denying the conversion, alleges in effect that after the death of Rutherford, the plaintiff, who is the widow of the decedent, delivered the property to one J. W. Swartz, as her agent, to manufacture into buggies and to sell the same for her; and that said Swartz delivered a part of said property to the defendant to be sold, and that he did sell the same and applied the money to the payment of the debts of the deceased ; setting forth the amounts, and names of the parties to whom paid, &c. Issue being joined as to this, a trial was had, which resulted in a verdict for the plaintiff.
The error alleged, as disclosed by the bill of exceptions, is the refusal of the court to allow the defendant to show what he did with the money received by him as proceeds of the sale of the property of Rutherford, deceased, and in the giving this instruction : “ It makes no difference what the agreement was between defendants, or any of them, and Mrs. Rutherford, widow of John Rutherford, deceased, about the property in question. Defendant R. H. Thompson is liable for the value of the property which you believe from the evidence he took possession of and sold, if any; and your verdict must be for the value of the property so converted, if any has been converted by him.” And in the refusal to give certain instructions asked, which it is not necessary to consider, unless the exceptions noted are error. It is thus seen by the pleadings and the error assigned, that the defendant Thompson sought to justify his intermeddling with the property, on the ground that what he did was done by the direction of the widow, or the plaintiff, and was, in fact, her act; and that he had a right to discharge himself by proving debts paid to the amount of the goods or property received, which had belonged to the deceased. The
It was formerly considered that if an individual interfered with the property of deceased, he thereby made himself an executor in his own wrong, or, as it is generally termed, an executor de son tort. (2 Blk. Com. 507 ; Bacon’s Abridg., Tit. Executors, &c., B. 3; Schouler on Executors, Sec. 184.) But this rule has been much modified, if not abolished, by the statute. It is now enacted that {£ no person is liable as an executor of his own wrong, for having taken, received, or interfered with the property of the deceased; but is responsible to the executors or administrators of such deceased person for the value of such property, so taken" and received, and for all injury caused by his interference with the estate.” (Code, Sec. 371.) This provision is almost identical with the New York statute on the same subject. The only difference—if, in effect, it may be called a difference—is, that the provision in the New York statute reads : ££ But shall be responsible as a wrong-doer to an action,” &c. As a consequence, it has been held in that state, that the office of executor de son tort has been abolished, and that an action cannot be maintained against any person in the character of an executor de son tort. (Babcock v. Booth, 2 Hill, 185 ; Vermilya v. Beatty, 6 Barb. 431; Metcalf v. Clark, 41 Barb. 49 ; Field v. Gibson, 20 Hun. 276.) Our provision is equally as explicit in the first part of the section, that “ no person shall be liable as an executor of his own wrong,” as the New York provision j and it is not of much consequence, as between such person and the rightful executor or administrator, that he be regarded as an executor de son tort, or as a wrong-doer. It is enough that whoever intermeddles with an estate, without rightful authority so to do, is responsible to account with only the rightful executor or administrator.
But the enactment of this provision produced some more important consequences. It took away the remedy the creditor before had to charge the intermeddler as an executor de son tort.
Between the acts of conversion alleged, which occurred shortly after the death of John Rutherford, and the granting of letters of administration to the plaintiff, some three or four years elapsed. The stock of unfinished buggy material constituted about all the property of the decedent, and the letters were undoubtedly taken out to hold the defendant Thompson responsible for° the value to the extent to which he was concerned. But if it be true, that a part of the property, as manufactured, came into his hands by direction of the plaintiff, to be sold by him, and he did sell the same, and apply the proceeds to the payment of debts of the deceased, it cannot be said that he has converted the property to his own use, but to the use and benefit of the estate of the decedent, or of the plaintiff in the fiduciary character in which she now sues. Upón the hypothesis that what the defendant did in the matter was done at the instigation and by the direction of the widow, as claimed and argued, it is doubtful whether such facts would be sufficient to constitute the defendant an executor de son tort, as understood and applied at common law. To fix that character, the act of intermeddling must be such as manifests a right to control and make disposition of the effects of the deceased. Merely acting as the agent or servant of another, and doing what was done by the procurement and direction of the plaintiff, would not be enough to render a person liable as an executor d,e son tort. The law considers them as her acts, and they as her agent. (Giles v. Churchill, 5 N. H. 341; Magner v. Ryan, 19 Mo. 197; Givens v. Higgins, 4 McCord, 286.) “ In this case,” said Perkins, 3., “ if the defendant had not converted the goods to his own use, but to the use of the plaintiff, she had not been damnified in the amount of the value of such conversion.” (Reagan v. Long, Adm., 21 Ind. 264.) Nor do we think upon this assumption that it would make a person liable. To sustain the action of trover there must be a conversion. But if this be considered doubtful, the acts complained of must be
These principles of the law we believe still to be applicable in determining the liability of the defendant to the plaintiff as administratrix; that in such action it is not material whether the defendant be treated as an executor de son tort or a wrongdoer ; the liability in either case to account to the executor or administrator is the consequence of the same act, and is the same, and must be governed by the same principles of legal justice ; and finally, that the justice of the law remains unaffected, to be applied and administered accordingly as the defendant has injuriously or beneficially acted with reference to the estate.
As to the last objection, the court will reserve its judgment until better advised.
The judgment is reversed, and a new trial ordered.