Rutherford v. Thompson

• Decision Date: 06 December 1886
• Parties: RUTHERFORD v. THOMPSON.
• Court: Oregon Supreme Court

12 P. 382

14 Or. 236

RUTHERFORD v. THOMPSON.

Supreme Court of Oregon

December 6, 1886

Action to recover damages for the conversion of certain personal property. Judgment for plaintiff. Defendant appeals.

W.H Adams, for appellant.

C.P. Heald, for respondent.

LORD, C.J.

This action was brought by the plaintiff, as administratrix of the estate of John Rutherford, deceased, to recover damages for the conversion of personal property belonging to the estate. The complaint, in substance, alleges that the defendant took possession of a stock of unfinished buggies and materials the property of John Rutherford, after his death, and disposed of a part of them. The defendant, Thompson, after denying the conversion, alleges, in effect, that, after the death of Rutherford, the plaintiff, who is the widow of the decedent, delivered the property to one J.W. Swartz, as her agent, to manufacture into buggies, and to sell the same for her, and that said Swartz delivered a part of said property to the defendant to be sold, and that he did sell the same and applied the money to the payment of the debts of the deceased; setting forth the amounts and names of the parties to whom paid, etc. Issue being joined as to this, a trial was had, which resulted in a verdict for the plaintiff.

The error alleged, as disclosed by the bill of exceptions, is the refusal of the court to allow the defendant to show what he did with the money received by him as proceeds of the sale of the property of Rutherford, deceased, and in the giving this instruction: "It makes no difference what the agreement was between defendants, or any of them, and Mrs. Rutherford widow of John Rutherford, deceased, about the property in question. Defendant, R.H. Thompson, is liable for the value of the property which you believe from the evidence he took possession of and sold, if any; and your verdict must be for the value of the property so converted, if any has been converted by him;" and in the refusal to give certain instructions asked, which it is not necessary to consider unless the exceptions noted are error.

It is thus seen by the pleadings and the error assigned that the defendant, Thompson, sought to justify his intermeddling with the property on the ground that what he did was done by the direction of the widow or the plaintiff, and was, in fact, her act; and that he had a right to discharge himself by proving debts paid to the amount of the goods or property received which had belonged to the deceased. The court, evidently, thought that it was immaterial whether he had done these things or not. They constitute no defense, and could not be shown in mitigation of damages. It was formerly considered that, if an individual interfered with the property of the deceased, he thereby made himself an executor in his own wrong, or, as it is generally termed, an executor de son tort. 2 Bl.Comm. 507; Bac. Abr. tit. "Executors," B; 3 Schouler, Ex'rs, § 184. But this rule has been much modified, if not abolished, by the statute. It is now enacted that "no person is liable, as an executor of his own wrong, for having taken, received, or interfered with property of the deceased, but is responsible to his executors or administrators of such deceased persons for the value of such property so taken and received, and for all injury caused by his interference with the estate." Code, § 371. This provision is almost identical with the New York statute on the same subject. The only difference, if, in effect, it may be called a difference, is that the provision in the New York statute reads, "But shall be responsible as a wrong-doer to an action," etc. As a consequence, it has been held in that state that the office of executor de son tort has been abolished, and that an action cannot be maintained against any person in the character of an executor de son tort. Babcock v. Booth, 2 Hill, 185; Vermilya v. Beatty, 6 Barb. 431; Metcalf v. Clark, 41 Barb. 49; Field v. Gibson, 20 Hun, 276.

Our provision is equally as explicit in the first part of the section--that "no person shall be liable as an executor of his own wrong"--as the New York provision; and it is not of much consequence, as between such person and the rightful executor or administrator, that he be regarded as an executor de son tort or as a wrong-doer. It is enough that whoever intermeddles with an estate, without rightful authority so to do, is responsible to account with only the rightful executor or administrator. But the effect of the enactment of this provision produced some important consequences. It took away the remedy the creditor before had to charge the intermeddler as an executor de son tort. He can no longer proceed against him in that character, but must procure the appointment of an administrator, and have suit instituted in his name to recover the property from such person who has converted it to his own use. In a word, he is now sent to the rightful representative of the estate, and cannot pursue his action against an executor de son tort. The rightful executor or administrator is constituted the trustee of the assets of the deceased, whose duty it is to recover and hold them in his hands as a fund to be disposed of in the best manner for the benefit of creditors. The person who intermeddles with the goods of the deceased is now only responsible to answer in an action to the rightful executor or administrator; and whether we consider the intermeddler as an executor de son tort or as a wrong-doer, the liability...