Magner v. Ryan
| Decision Date | 31 October 1853 |
| Citation | 19 Mo. 196 |
| Court | Missouri Supreme Court |
| Parties | MAGNER, Appellant, v. RYAN & DELANEY, Respondents. |
1. A person cannot be charged as an executor of his own wrong, by reason of acts done as the servant or agent of another.
2. A subsequent grant of letters of administration legalizes the acts of an executor de son tort.
This was an action brought by Magner, to recover the amount of a debt due him from Thomas O'Keefe, deceased, against Ryan & Delaney, as executors of their own wrong.
The indebtedness was admitted. The following facts appeared in evidence: O'Keefe died owning a lease on a house, the lower story of which he had occupied as a shoe shop, and the upper story as a boarding house. At the time of his death, he had chattels of the value of $180 to $200 in the shop, and household furniture of the value of $100 in the upper story. He left no money to pay his funeral expenses or the expenses of his family; and his widow, being sick, procured the defendant to sell the stock in the shop for the purpose of paying the funeral expenses. Delaney, accordingly, took an inventory on the day after O'Keefe died, and kept the shop open a week or ten days, during which time he sold stock to the amount of $170 or $180. He paid over the proceeds to the widow, and acted in the whole matter for her. The widow applied the money to the payment of funeral expenses, rent, and wages of hands in the shop and servants in the house. Afterwards, she was appointed and qualified as administratrix of her husband's estate. Under the instructions of the court below, the plaintiff submitted to a nonsuit, and appealed to this court.
Fremon & Reber, for appellant.
The defendants were liable as executors de son tort. 1 Williams on Executors, 210-1-2. They could not defend under the authority of the widow, for she also was a wrong-doer, and they knew it. Williams, supra. Payment of the money to the widow, before her appointment as administratrix, is no defense. Her bond did not cover the money. The goods sold were not properly administered. Part of the money was applied by the widow to the payment of demands of the same degree as the plaintiff's.
H. N. Hart and J. H. Reed, for respondents, cited Toller on Executors, 39, 367. 3 T. R. 590. Comyn's Dig. tit. Administrators, ch. 3. 8. J. R. 126. Moore, 126. 15 Mass. 307. 1 Salk. 313.
1. Do the facts set forth in the statement make the defendants, Ryan & Delaney, executors of their own wrong, of the estate of Thomas O'Keefe?
It seems that, at the death of O'Keefe, the defendants were the agents of his widow, and she, being without means to support the family, having no money on hand to pay the funeral expenses with, or to procure sustenance for herself and children, she being sick at the time, procured Delaney to sell the stock for the purpose of paying the funeral expenses; and he paid over to her (the widow) all the proceeds of such sale, and she paid out all the money she received, for funeral expenses, for wages of servants in the house, for wages of hands in the shop, and for the rent of the house. It seems that the value of the goods in the shop was from $180, to $200, and that the household goods were worth about $100; that the widow was regularly appointed administratrix of the estate of her deceased husband, before this suit was instituted. Now, from an examination of the evidence on the record, it must strike every one that all that these defendants did, in regard to this estate, was done by the procurement and direction of the widow; it was done for her and by her orders and commands. If any one, then, was executor of his own wrong in this case, it was the widow, and by her taking out letters of administration, the acts done were all legalized, and this suit cannot be maintained against these defendants. The widow was the principal; she was directing, and these defendants were but her agents or servants. These defendants did not interfere with the goods of the estate of their own voluntary choice; they assumed to exercise no control or rights in and to the property; all that they did was done by the order of Mrs. O'Keefe, the widow, and must, in law, be considered as her acts, and they merely her agents.
From the amount of the valuation of the property, there is some doubt whether the widow was not entitled to the whole. She is allowed to take $200 of the estate at the appraised value, in preference to the creditors; and this, too, in addition to “all the...
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