Ansley v. Baker

• Decision Date: 01 January 1855
• Citation: 14 Tex. 607
• Parties: J. W. ANSLEY v. J. W. BAKER.
• Court: Texas Supreme Court

14 Tex. 607

J. W. ANSLEY

v.J. W. BAKER.

Supreme Court of Texas.

1855.

Our probate laws for the settlement of the estates of deceased persons assume to be a complete system, and as such to afford a mode of proceeding applicable to all cases. To introduce an executor de son tort with his rights and liabilities would mar the intended symmetry and increase the perplexity of the system. (Note 89.)

Where the plaintiff sued the sole heir on a promissory note of the intestate, alleging that it was the only debt against the estate, and that the heir had taken possession of all the property, the court said: “It will be observed that there is no ground alleged in this case sufficient in law to require a departure from the ordinary mode of enforcing claims against an estate by an administration. It is not averred that the plaintiff was impeded or prevented from administering or from pursuing his ordinary remedy. No doubt there might be cases in which the possessor of the property of an estate might be held responsible for its debts to the extent at least of the assets in his hands; but this could only be where he was otherwise remediless without default in himself.”

Under our probate laws an estate of a deceased person vests immediately in the heirs, subject to administration only. Consequently the heir who takes possession is not liable in the nature of an executor de son tort at the suit of a creditor in the District Court. The proper remedy is administration in the Probate Court. (Note 90.)

Error from Panola. Suit by the plaintiff in error against the defendant in error on a note executed by Elizabeth A. Ansley, 12th January, 1845, to the plaintiff for $280, due one day after date. The petition alleged that the said Elizabeth married the defendant November 10, 1845, in Louisiana, and afterwards moved to Texas; that she died in July, 1846, having separate estate, to wit, two slaves of the value of $1,400; that she left an infant child who died shortly afterwards; that the defendant took possession of said slaves at the death of said Elizabeth, and kept and used them as his own, and so continued to do; that there were no debts against the said Elizabeth except this note; that it was presented to the defendant, as executor, duly authenticated, and by him rejected. The facts of the said Elizabeth's having made a will, defendant's appointment as executor by the will and by the County Court, were not averred; but the fact of his using and enjoying the property was relied on as the foundation of defendant's liability. The defendant excepted to the petition on the ground that the District Court had no jurisdiction, and that the proper remedy of the plaintiff was by administration in the County Court. Exceptions sustained and suit dismissed.

W. R. Poag, for plaintiff in error. That the defendant is not to be sued as executor de son tort is absurd and preposterous. Though perhaps he had a right to take out letters of administration on said estate as the principal and only creditor, the law cannot say that he should do it, especially so when some third party, by his improper, unjust, and illegal interference, has laid himself liable to us by actual conversion of the only property of which our debt could be made. The law reports are replete with cases of this class of trustees, always found on the defendant's side of every case. ( Vide Toler, 27, 28; Id., 474; Bouvier Law Dic., 1st vol., cases there cited, title EXECUTOR DE SON TORT, &c.)

O. M. Roberts, for defendant in error.

I. An executor de son tort is one who takes upon himself the office of executor by intrusion. (1 Williams on Executors, p. 210, note a.)

From his acts strangers have a right to conclude and act on the conclusion that he has a will of the deceased, wherein he is appointed executor, but has not yet proved it. (Id., 216.)

1st. It is suggested that no such conclusion can be entertained here, because the executor must in thirty days apply for probate of will, take the oath, and, unless it be dispensed with, give the bond as executor, the same as administrator. (See Statutes of 1840 and up to 1848.) There can be no such thing as administrator in his own wrong. (Id., 217, note r.) Executor de son tort is unknown in Ohio. (See note, page 27, 4th Bacon.)

2d. This mode of proceeding would be variant from our system of administering and settling estates in the judgment, in the sale of the property, in the expenses of administration, and in preferences and payment of creditors and admission of claims. (See Hart. Dig., p. 351, arts. 1095, 1096, 1097, 1099.)

3d. This mode of proceeding would defeat the ample original jurisdiction of the County Court, and transfer it in probate matters to the District Court, without the same having been prescribed by law, (see Constitution, sec. 15, art. IV, and Law of 1846, Hart. Dig., p. 347,) and without the organization of the District Court being suited to the full and complete transaction of such business in the manner the Legislature have indicated by the probate laws.

4th. It is granted that if there were any facts in this case which impeded or hindered the plaintiff in the pursuit of his rights in the Probate Court by the ordinary remedies of administration, equity would hold defendant bound as trustee for the amount of funds in his hands; but no such facts are pretended to be urged by plaintiff further than the mere convenience of plaintiff.

5th. The whole doctrine of executor de son tort is founded on a fiction of the common law which no public policy here requires us to perpetuate, to wit: a man shall be held to be executor (although in truth he is not) when he intermeddles with the property of an estate.

II. The second question upon the state of facts presented is, do the facts in the petition show defendant to be liable as executor de son tort?

On the death of his wife in 1846 the property descended to her infant child, and after the child's death (before suit brought) to defendant, so that the property was possessed all the time in right of his child, as natural guardian, or in his own right. His possession was rightful in both capacities, which contradicts the idea of his being executor de son tort. That implies an unlawful, tortious, or wrongful possession, use, or disposition of the property of an estate. (See 1 Williams, 209, 210.) All the acts there specified are wrongful under the English jurisprudence. (See also Bouvier's Law Dic., 1 vol., p. 497, as to “unlawful.”)

It is different, however, where the property is retained or possessed for safekeeping, or under claim of right, or even color of right. (See 1 Williams, 213, 215, 216, and note x, 216; 4 Bacon, note b, 28; 5 Ala. R., N. S., 35, Densler v. Edwards.)

HEMPHILL, Ch. J.

The question in this cause is whether an heir who takes the estate into possession is liable for its debts before administration; for there...