78 P. 325 | Or. | 1904
delivered the opinion.
1. It is contended by defendant’s counsel that Slate had an adequate remedy in the law action to recoup all expenses that he had legitimately incurred in relation to the decedent’s estate by alleging such facts in an answer to the complaint therein, and hence an error was committed in overruling the demurrer to the cross-bill and in rendering the decree herein. Any person who, without authority, intermeddled with the estate of a decedent, by doing such acts as properly belonged to the office of an executor or administrator, was originally denominated an
2. The rule is universal that such an executor is subject to all the liabilities of an ordinary executor without being entitled to any of his privileges: 11 Am. & Eng. Enc. Law (2 ed.), 1351; 1 Woerner, Administration (2 ed.), § 193; 1 Williams, Executors, *216. The statute 43 Eliz. c. 8, so
3. This being so, it remains to be seen whether or not he had a plain, adequate, and complete remedy at law for the recovery of the sums so paid and for the services performed, for, unless such redress existed, he is not precluded from resorting to a suit in equity for the settlement of his reasonable demands: B. & C. Comp. § 390. Mr. Woerner, in his valuable work on the American Law of Administration (2 ed. § 195), in speaking of the right of an executor de son tort to recoup in an action instituted against him by the administrator to recover compensation for the injury sustained by reason of his intermeddling with the goods of a deceased person, says : “ He may prove, however, under the general issue, in mitigation of damages, payments made by him in the rightful course of administration, because it is no detriment to the administrator de jure that such payments were made by the executor de son tort.” Williams, in his work on Executors (American Notes by Randolph & Talcott, vol. 1, p. 316),
Mr. Chief Justice Lord, in Rutherford v. Thompson, 14 Or. 236 (12 Pac. 382), in discussing the effect of our statute amending the common-law rule, and of the right of an executor de son tort to be credited with payments which he may have made that are tantamount to a due administration of a decedent’s estate, says : “The person who intermeddles with the goods of the deceased is now only responsible to answer in an action to the rightful executor or administrator. And whether we consider the inter-meddler as an executor de son tort or as a wrongdoer, the liability to respond to the rightful executor or administrator is the same, and unaffected, and the law unchanged. The fiction of office may be gone, but the unauthorized act of intermeddling remains, to be dealt with judicially, according to the principles of right and justice, as applied by the law in such cases. Now, from the fact that the intermeddler with the goods of a deceased is only liable to respond to the rightful executor or administrator for the value of the goods, etc., it by no means follows, if what he did was of benefit, and not injury, to the estate — as the payment of funeral expenses, or debts of the deceased, or
4. There are some items, however, in his claim, as disclosed by the cross-bill, that could never have been of any advantage thereto. Thus the sum paid to the surety company for responsibility assumed on Slate’s undertaking, and also the appraisers’ and justice’s fees. The sum paid on account of attorney’s fees was no advantage, unless the service rendered was in preserving the property of the estate; certainly not in the ordinary settlement thereof, or in defending in the former suit. The sum of $100 claimed by Slate should not be allowed, unless his service, like that of his attorneys; was performed in pre-' serving or caring for the property, resulting in a benefit thereto.
5. He is not entitled to any sum whatever as administrator’s fees, and if the county court appointing him had allowed and he had secured the sum prescribed by law as compensation in such cases, as he was only a de. facto representative of the decedent’s estate the de jure administrator could have recovered such fees from him, for the rule is almost universal that an officer de facto is liable to
The conclusion reached is not in contravention of the opinion announced in Oh Chow v. Brockway, 21 Or. 440 (28 Pac. 384). In that case, the plaintiff’s intestate having died in Douglas County under such circumstances as to induce the belief that a crime had been committed, the coroner thereof held an inquest upon the body, which he caused to be buried, having found thereon a certificate of deposit and some money, which he took possession of, and delivered to the county treasurer, who placed it to the credit of the county. The county court of Multnomah County appointed the plaintiff administrator of the decedent’s estate, and thereafter the defendant, having been appointed administrator thereof by the county court of Douglas County, received from the county treasurer the money and certificate so found. The defendant having secured the money evidenced by the certificate of deposit, the administrator first appointed commenced an action against him to recover the sums in his possession, which it was alleged he had converted to his own use, the complaint'stating that the deceased at the time of his death was an inhabitant of Multnomah County. The answer denied the material allegations of the complaint, and for a further defense stated the facts hereinbefore detailed, and averred that the intestate died an inhabitant of Douglas County, and the coroner, in causing his body to be interred, incurred an expense of $50.75, which sum was audited and paid by the county, on behalf of which defendant secured the money and the certificate of deposit, and that $55 of the sum so received had been used by him for the benefit of such estate. A reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a judgment of nonsuit, and the plaintiff appealed. In reversing the judgment, Mr.
The decree will therefore be reversed, the demurrer sustained, and the cross-bill dismissed. Reversed.