B. D. 599. By statute the number of actions which survive has been much enlarged. Almost universally rights ex delicto in regard to property, and frequently rights for personal injuries, survive and pass to the executor or administrator.
1 It is a general rule that the executory contracts made by an executor or administrator, though made in good faith in regard to the business of the estate, bind him personally, and do not bind the estate directly. Kingman v. Soule, 132 Mass. 285, 288; Austin v. Munro, 47 N, Y. 360; Willis v. Sharp, 113 N. Y. 586, 591.
One of joint executors is not generally liable for the wrongdoing of the other, without negligence or other default on his own part. (ss)1
If executors or administrators pay away money of the deceased by mistake, or enter into contracts for carrying on his business for the benefit of his personal estate, and to wind up his affairs, they may sue either in their individual or their representative capacities; (t) but they should sue in the latter capacity, in order to avoid a set-off against them of their individual debts. (u)
The title of an administrator does not exist until the grant of administration, and then reverts back to the death of the deceased; but only in order to protect the estate, and not for any other purpose. (v) And if an agent sells goods of the deceased, after his death, and in ignorance of his decease, the administrator may adopt the contract and sue upon it. (w)
On the death of one of several executors, either before or after probate, the entire right of representation survives to the others. (x) But if an administrator dies, (xx) or a sole executor dies intestate, no interest and no right of representation is transmitted to his personal representative. (y)
Executors and administrators are regarded as Trustees, and are bound by the rules of the law of Trust, and of Agency, so far as the same are applicable to them. Thus, neither can buy what he sells; (yy) and either is held responsible for loss to the
(s) Lord Lyndhurst, C. B., and Bayley, B., Marshall v. Broadhurst, 1 Tyr. 349. See Siboni v. Kirkman, 1 M. & W. 423. See also White v. Commonwealth, 39 Penn. St. 167.
(ss) Wood v. Brown, 34 N. Y. 337.
(t) Clark v. Hougham, 2 B. & C. 149; Aspinwall v. Wake, 10 Bing. 51; Webster v. Spencer, 3 B. & Ald. 360; Ord v. Fenwick, 3 East, 104; Merritt v. Seaman, 2 Seld. 168.
(u) Per Bayley, Holroyd, and Best, JJ., Clark v. Hougham, 2 B. & C. 155, 156, 157.
(v) Morgan v. Thomas, 8 Exch. 302; Foster v. Bates, 12 M. & W. 22; Lawrence v. Wright, 23 Pick. 128; Rattoon v. Overacker, 8 Johns. 126; Winchester v. Union Bank, 2 G. & J. 79, 80; Welch-man v. Sturgis, 13 Q. B. 552; Bell v. Speight, 11 Humph. 451.
(w) Foster v. Bates, 12 M. & W. 226.
(x) Flanders v. Clark, 3 Atk. 509. So in the case of the death of one of two administrators, the administration survives to the other. Hudson v. Hudson, Cas. Temp. Talb. 127. - That joint executors are one person in law, Shaw v. Berry, 35 Me. 279. But see Smith v. Whiting, 9 Mass. 334.
(xx) Young v. Duhme, 4 Met. (Ky.) 239.
(y) Com. Dig. Administrator, B. 6; Tingrey v. Brown, 1 B. & P. 310.
(yy) Howell v. Selving, 1 McCarter, 84; Boyd v. Blankman, 29 Cal. 19.
1 Unless they give a joint bond, Newton v. Newton, 53 N. H. 537. See further, as to the liability of one executor for the acts of his co-executor, Adair v. Brimmer, 74 N. Y. 539; Bryan v. Stewart, 83 N. Y. 270; Shreve v. Joyce, 7 Vroom, 44; Kincade v. Conley, 74 N. C. 387. - K.
estate, caused by his negligence or default; as of a debt which might have been collected with due diligence. (yz)
An executor de son tort is one who without right disposes of or interferes with the assets of the deceased, or otherwise assumes to act as executor. He is liable for the property taken by him, and for all damage caused by his acts, and not only to an action by the rightful executor or administrator, but may be sued by a creditor of the deceased. (z) But mere acts of kindness and charity touching the property of one deceased, as taking care of it, providing for the family and the like, do not make one executor de son tort.(zz) It is held in England, that an executor de son tort of a rightful executor is liable in the same manner as a rightful executor of the original testator, for his debts. (a)1 But the rightful executor or administrator cannot be prejudiced by an act or contract of an executor de son tort. (b) And it would seem, that if an executor de son tort be afterwards made administrator, he is not bound by a contract made by himself as executor before the grant of administration. (c)
(yz) Cooley v. Vansycle, 1 McCarter, 496; Shaffer's Appeal, 46 Perm. St. 131; Tuggle v. Gilbert, 1 Duvall, 340; Tompkins v. Weeks, 26 Cal. 50.
(z) Curtis v. Vernon, 3 T. R. 587; Elder v. Littler, 15 Ia. 65.
(zz) Brown v. Sullivan, 22 Ind. 264.
(a) Meyrick v. Anderson, 14 Q. B. 719.
(b) Buckley v. Barber, 6 Exch. 164; Mountford v. "Gibson, 4 East, 441; Dickenson v. Naule, 1 Nev. & M. 721; where A having proved a will, in which she supposed herself to be appointed executrix, employed the plaintiff, an auctioneer, to sell the goods of the testator; and they were sold to the defendant, who, as an inducement to the plaintiff to let him remove the goods without payment, expressly promised to pay the plaintiff as soon as the bill was made out. Probate was afterwards granted to B, the real executrix, who gave notice to the defendant to pay the price to her. Held, that the plaintiff could not maintain an action against the defendant for the price. - But where the act of the executor de son tort was done in the due course of administration, and is one which the rightful executor would have been compellable to do, such act shall stand good. Grays-brook v. Fox, 1 Plowd. 282; Thompson v. Harding, 20 E. L. & E. 145.
(c) Doe v. Glenn, 1 A. & E. 49; s. c. 3 Nev. & M. 837; Wilson v. Hudson, 4 Harring. 169. But see contra, Walworth, C., Vroom v. Van Home, 10 Paige, 558; Walker v. May, 2 Hill, Ch. (S. C) 23.
1 But the executor of an executrix de son tort is not liable for a breach of contract committed by the person with whose property the executrix de son tort has intermeddled. Wilson v. Hodson, L. R. 7 Ex. 84. - K.