De La Guerra v. Packard

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

There is nothing in this case, so far as it is governed by the rules of the common law, to distinguish it from the ordinary case of an executor de son tort. Such an executor is regarded by the common law as an intermeddler and a wrong-doer. He has no rights, and payments made by him over and above the value of the assets which come into his hands are entirely voluntary. He cannot by such payments place himself in the position of a creditor of the estate. We are not called upon to determine how far the common law rules upon this subject have been changed by the provisions of our statute. There is no doubt that at common law the acts of an executor de son tort are for some purposes regarded as valid, but it is a familiar principle that no benefit can be derived from such acts by the executor himself. “ The law,” says the Supreme Court of North Carolina, “ holds such an executor to many liabilities, but gives him no action.” (Francis v. Welch, 11 Ired. 215.) He cannot retain for a debt of his own, and if the estate be insolvent, it is no answer to an action to recover the assets that he has paid debts equal to or exceeding their value. In Ayre v. Ayre (cases in Chan. 33) it was said that such an executor should be allowed all payments not made to himself, but this language must be understood as referring to the facts of that case. The suit was brought by a widow to recover the amount of certain debts due from the estate of her husband. She had possessed herself of the estate and paid these debts, but the estate had been taken out of her hands, and no allowance had been made for such payments. It is evident that nothing more was intended than to lay down a rule as applicable to these facts; and the case is far from maintaining the proposition that an executor de son tort may charge the estate beyond the assets in his possession. A similar question was presented in Hardy v. Thomas (23 Miss. 544). In that case the executor de son tort had paid several debts, but had not parted with the assets. The suit was by the rightful executor for their recovery, and the Court held that under a statute of that State the executor de son tort could make no valid disposition of them, and that the [193]plaintiff was therefore entitled to recover. Upon the subject of the right of the defendant to a claim upon the estate for the amount of these debts, the Court declared the law to be that he was entitled to satisfaction ratably with other creditors. But the case shows that the reference upon this point was only to such debts as were paid upon the faith of the assets which came into his hands, and there is no reason to suppose that if he had been permitted to retain these assets, any claim on his part would have been regarded as valid.