| Me. | Jul 1, 1865
This is an action of trover. The plaintiff sues as the rightful administrator on the estate of Catherine B. Miller. The defendant interfered with the estate of the plaintiff’s intestate, and is liable as executor de son tort. He could not in this form of action file an account in set-off.
When an executor in his own wrong is sued, it is provided by R. S., 1857, c. 64, § 32, that " he shall not be allowed to retain any part of the goods or effects, except for such funeral expenses, debts of the deceased or other charges actually paid by him, as the rightful executor or administrator would have to pay.” That is, he is permitted to retain to the extent indicated. The word retain was used to protect the defendant, whatever may be the form of the action when
Nor is this provision materially different in its spirit from the common law. The executor is entitled to deduct reasonable funeral expenses from the assets that come into his hands. Yardly v. Arnold, 41 E. C. L., 239. Where the rightful executor or administrator sues the executor de son tort, if the action " be trover for the goods of the deceased, the defendant,” observes Buchanan, C. J., in Glenn v. Smith, 2 Gill. & Johns., 493, "cannot plead payment of debts to the value, or that he has given the goods in satisfaction of the debts. But, on the general issue pleaded, he may give in evidence such payments, and they will be recouped in damages, if they be such as the plaintiff would have been bound to make, or, in the language of some of the books, made in due course of administration. Carth., 104; Bull., N. P., 48; 2 Black. Com., 507; Mountford v. Gibson, 4 East, 441; Parker v. Kelt, 12 Mod., 471.” This recoupment is allowed when the debts are just and there is no deficiency of assets.
The plaintiff, as administrator, after first making provision for the expenses of administration, if there be a sufficiency of assets, is bound to pay the expenses of the last sickness of his intestate and the necessary funeral charges. These amount, in all, to one hundred and two dollars and twenty-five cents. If the plaintiff will remit this amount, with interest from the death of his intestate, the verdict is to stand for the remainder, otherwise the exceptions must be sustained.