25 Ala. 353 | Ala. | 1854
The plea was ne unques executor ; and evidence was offered that, at the time the defendant below committed the acts for the doing of which he was sought to be charged as executor de son tort, there was a lawful administration. The charge of the court was, in effect, that although there was a lawful administrator, if the defendant, in collusion with him, received and paid out the funds, with intent to defraud the creditors of the estate, he could be charged as executor in his own wrong.
We agree that, where one in his lifetime makes a'fraudulent conveyance of his property, the person to whom the conveyance is made may, after his death, be charged as executor, although there is a lawful representative ; and the reason is, that the latter, being bound by the fraud of his testator or intestate, cannot be charged at all in his representative capacity. — Densler v. Edwards, 5 Ala. 31; Marler v. Marler, 6 Ala. 367. But this doctrine has no application to cases of collusion between the rightful representative and a third person, where there is nothing to prevent the former from being-held liable.
It is urged, however, on the part of the appellee, that the
Judgment reversed, and cause remanded.