§ 328. Another class of agents consists of executors and administrators,1 who are the personal representatives and agents for the testator, the former being appointed by him in his will, and the latter being appointed by the court having jurisdiction over the probate of wills. The authority of an executor, being given by the will itself, becomes complete upon the death of the testator;2 but the authority of the administrator being derived from the court, he cannot exercise his full powers until letters of administration have been granted.3 Therefore, although an executor may bring an action before proving a will, the administrator must wait until letters of administration have issued.4 For the same reason, a release, or assignment, or surrender, which would be valid if made by the executor before probate, would not ordinarily be binding if made by the administrator before he takes out letters of administration.5 But after an administrator has received letters, the same general rules apply to him as to an executor.
§ 329. There are several kinds of executors and administrators, namely: First, the executor proper, who is appointed legally by will. Second, the executor de son tort, as he is called, who is any person who, no person having been appointed by the will, officiously assumes the office and the duties of an executor.1 Any intermeddling with goods, which is not done out of mere charity or kindness, but which is an assumption of right over the goods to be administered upon, will be sufficient to render a person an executor de son tort. Thus, it has been held, that the taking a Bible or a bedstead; or killing cattle; or using, giving away, or selling goods; or entering upon lands leased and taking possession; or demanding, receiving, or receipting for the debts due to the deceased; or paying debts due from him, will constitute a person executor de son tort.2 One who collects money in a savings bank, belonging to the deceased, and pays it out for expenses of the last sickness and funeral, becomes liable as executor de son tort.3 But it does not per se constitute one an executor de son tort, to receive money from one who is executor de son tort, and apply part to one's own debt, and the remaining sum to the funeral expenses.4 But the performance of offices of mere charity and kindness, such as locking up the goods for preservation, or directing the funeral and paying the expenses thereof, or making an inventory, or feeding his cattle, will not make a person executor de son tort.5 So, also, if a person have a colorable title to the goods with which he meddles, or if he act as agent for a rightful executor during the life of the latter, and not otherwise, he will not render himself executor de son tort.6 Payment by an executor de son tort may be good
1 The author has been greatly indebted, in the preparation of this abstract of the law relating to executors and administrators, to Mr. Williams's admirable treatise on this subject, to which the student is referred.
2 Hensloe's Case, 9 Co. 38 a; Graysbrook v. Fox, Plowd. 281; Woolley v. Clark,5 B. & Al. 744; Smith v. Milles, 1 T. R. 480. See Johnson v. Warwick, 17C. B. 516 (1856).
3 Martin v. Fuller, Comb. 371; Wooldridge v. Bishop, 7 B. & C. 406; Phillips v. Hartley, 3 C. & P. 121.
4 Ibid.; Humphreys v. Ingledon, 1 P. Wms. 753.
5 Middleton's Case, 5 Co. 28 b; Whitehall v. Squire, 1 Salk. 295; The King v. Great Glenn, 5 B. & Ad. 188; 1 Williams on Executors, pt. 1, b. 5, ch. 1, § 2.
1 1 Williams on Executors, pt. 1, B. 3, ch. 5, p. 148; Swinburne, pt. 4, § 23, p. 21. This term was formerly also applied to executors who were guilty of maladministration. Stokes v. Porter, Dyer, 167 a.
2 Robbins's Case, Noy, 69; Stokes v. Porter, Dyer, 167 a, 166 b; Read's Case, 5 Coke, 33; Padget v. Priest, 2 T. R. 97; Godolph. pt. 2, ch. 8, § 1; Mayor of Norwich v. Johnson, 3 Lev. 35; Anon., Dyer, 56 a.
3 Bennett v. Ives, 30 Conn. 329 (1862).
4 Lysley v. Clarke, 14 Eng. Law & Eq. 510; Paull v. Simpson, 9 Q. B. 365. See Alvord v. Marsh, 12 Allen, 603-
5 1 Williams on Executors, pt. 1, B. 3, ch. 5, p. 151; Godolph. pt. 2, ch. 8, 36; Dyer, 166 b; Fitz. Executor, pl. 24; Harrison v. Rowley, 4 Ves. 216; Bac. Abr. tit. Executors (B. 4). See Root v. Geiger, 97 Mass. 178.
6 Femings v. Jarrat, 1 Esp. 336; Com. Dig. Admr. (C. 2); Hall v. Elliot, Peake, 87; Cottle v. Aldrich, 4 M. & S. 175. But see Tomliri v. Beck, against the rightful administrator, if the creditor had good cause to believe the person making the payment had authority to act as executor.1 Whether the acts he did are of such a character as to render him an executor de son tort, is a question of law for the court; but what acts he did is a question for a jury.2
§ 330. Again, of administrators there are, 1st. The administrator proper, who is the person appointed by the court, in the absence of any will, to administer the estate of the deceased. 2d. The administrator cum testamento annexo, who is appointed by the court in cases where a will has been made, by which either no executor is appointed, or where the executor refuses to accept the office, or is incapable of acting. 3d. The administrator de bonis non, who is appointed in the place of the executor, in case the latter dies intestate after having proved the will, but before he has administered the personal estate of the deceased. For in case of the death of an executor before he has administered the estate of the testator, his office is not transmitted to his executor, but is wholly determined.3
§ 331. Any person may be made an executor or administrator, unless he or she be expressly forbidden.4 The common rules as to incapacity of persons to contract on their own account do not apply to their contract in behalf of other persons. Aliens, outlaws, feme coverts,5 infants of any age, and even in ventre sa mere, and corporations, may be executors,1 but idiots and lunatics cannot be executors, because of their mental incapacity.2
Turn. & Russ. 438. A person who deals with the goods of a testator, as agent of the rightful executor, is not an executor de son tort, although the will has not been proved. Sykes v. Sykes, Law R. 5 C. P. 113 (1870), doubting Sharland v. Mildon, 5 Hare, 469. And see Cottle v. Aldrich, 4 M. & S. 175.
1 Thomson v. Harding, 2 El. & B. 630; 20 Eng. Law & Eq. 145.
2 Padget v. Priest, 2 T. R. 99.
3 Isted v. Stanley, Dyer, 372; Hayton v. Wolfe, Cro. Jac. 614; Day v. Chatfeild, 1 Vern. 200; 1 Williams on Executors,.pt. 1, B. 3, ch. 4, p. 146.
4 1 Williams on Executors, pt. 1, B. 3, ch. 1, p. 125.
5 Payment to a, feme covert executrix, made in good faith, at her request as such, is good, though the husband never consented to her acting as executrix, and though subsequently to the payment he refused to allow her to act as such, probate being refused her on that ground; if the party paying had no knowledge that the husband had not assented, though knowing that the wife was a. feme covert. Pemberton v. Chapman, El. B. & E. 1056 (1858); 7 El. & B. 210.