Opinion
December Term, 1826.
From Orange.
1. An intermeddling for which there is a colorable right will not make a wrongful executorship.
2. Where A sold the property of B, as his agent, and after the death of B collected the proceeds: this does not make him an executor de son tort.
3. Where there is an administrator, acts for which the agent is responsible to the administrator will not make him an executor de son tort.
ASSUMPSIT for goods sold, charging the defendant as executor in his own wrong of Francis Child. On trial, it appeared that Francis Child removed from this State, leaving the defendant his agent, who on 3 January, 1823, sold the property to Francis, upon a credit of six months. Francis Child died on 16 January, 1823, and after the expiration of the credit the notes taken at the sale were collected by the defendant; it also appeared that there was an administrator of Francis Child duly appointed.
Badger for the plaintiff.
Nash for the defendant.
His Honor, Judge Daniel, charged the jury that by the death of Francis the agency of the defendant was revoked, and the collection by him of money belonging to the estate of Francis was an intermeddling which made him liable to creditors.
The jury returned a verdict for the plaintiff. A rule for a new trial being discharged, and judgment rendered for the plaintiff, the defendant appealed.
This cause was submitted.
I am of opinion that the collection ( 26 ) by the defendant, after the death of the principal, of debts due on sales made by him as agent, in his principal's time, does not make him an executor of his own wrong. The collection of the money has a reference to the agency, and must be considered as the completion of an act, proper and lawful in its commencement, and it does not depend on the strict question of right, whether the agent had an authority to make the collection; a colorable one will do, by which a character is given to the transaction showing that it was not done as an executor, or as one performing the will of the deceased. 1 Esp., 335. But I am rather disposed to think that the receipt of this money is not a colorable right, but actually so, and that a payment made by the purchaser, without directions to the contrary, is a discharge from the debt, and if so, it is not an officious intermeddling; for it would be strange if an act for which an authority exists will make a person executor of his own wrong. A sense of duty, very probably, induced the collection of the money. The sale was made by the defendant, and he might hold himself bound to omit no reasonable exertion that the proceeds should be forthcoming to the rightful owner when he should be called on for an account of agency. It is entirely unlike Padget v. Priest, 2 D. and E., 97, where the sale was made after the principal's death, at which time the authority ceased. If the debt arising from the sale had depended on the contract of sale only, it is not to be questioned but that the rightful administrator could have recovered on the contract; but if the agent had taken a bond or note payable to himself, I cannot see how the administrator, or any other person but the defendant, could have enforced payment; but if so, there cannot be the least pretense of charging him as an executor of his own wrong.
It appears, also, that there is an administrator. Of course no act for which the defendant is responsible to the administrator can make him an executor of his own wrong. (27) For where administration has been taken, those acts only which subject the agent, not to the action of the rightful administrator, but which interfere with the estate quoad creditors, render him liable, as an executor of his own wrong; as, if he takes possession, or even has possession, of goods under a fraudulent gift from the deceased, this makes him executor de son tort; for it does not subject him to the action of the rightful administrator. The gift being good as to the intestate, is good as to the administrator also, but it is void as to creditors.