#### *Administrator of John M. Kinard vs. Thompson Young et al.*

Executors *de son tort*are only chargeable with assets which come to their hands; they have no right, as lawful executors have, to reduce the other assets, and therefore, are not liable for not reducing and administer-' ing them.

In the administration of the assets of an insolvent testator or intestate, mortgages, as mortgages, are not entitled to priority over reut, specialties, and simple contract debts, except so far as they are £ *liens*on any particular part of the estate.’ After the *lien*is exhausted, the grade of the demand must be determined by the nature of the instrument which the mortgage was given to secure.

Where an executor *de son*tort, who has not called on creditors to render their demands, is compelled to apply the assets received by him to debts of an inferior grade, he may be afterwards compelled to apply the value of the same assets to debts of a higher grade, and of which he had no notice. *Per Johnston, Ch.*

An executor *de son tort*is liable for interest from the death of the testator, if at that time he took possession of the assets, *lb,*

*248An executor *de son tort*has no right to retain for his own debt, but, with this exception, he may pay debts, even one to which he is surety, in the same order in which a rightful executor is required to pay them. *Ib.*

*Before*Johnstojst, Ch., *at*Newberry,

June, 1845.

The complainant is the administrator of the estate of John M. Kinard, deceased; the defendants are creditors of John En-low, deceased.

Enlow was the son-ih-law of Kinard, and was employed as his overseer, for the year in which he (Enlow) died ; and Kinard became executor in his own wrong, of Enlow, by intermeddling with the property which he left.

The defendants, as creditors of Enlow, brought suits at law against the complainant; and this bill was filed, to ascertain with what amount Kinard’s estate was chargeable on account of his intermeddling, and how that amount should be distributed among the creditors of Enlow.

*The Chancellor.*The very clear report of Mr. Higgins, the special referee in this case, including his observations upon the exceptions taken by the several parties, contains a full statement of every thing necessary to an understanding of the points to be now decided.

The case comes up upon the exceptions. Some of the questions are very important, although the amount involved is small.

1. The plaintiff’s first exception complains “ that the referee disallowed, as a preferred debt, the sum of $108 42, recovered by James Enlow from him, and paid by him, when he had no notice of any claim against his testator as *executor de son tort*of John Enlow, except that of the said James Enlow and another demanded by Thompson Young.”

I concur with the referee in overruling this exception ; because this debt to James Enlow was, at the death-of John Enlow, a simple contract debt; and his assets were not sufficient to reach claims of that character and grade. It does not appear that plaintiff’s testator called on the creditors of John Enlow to render their demands; and if he or his executors remained ignorant of their extent it was their fault, and resulted from his illegal interference with Enlow’s assets ; and his estate must suffer the consequences. As to Enlow’s creditors, the statute (5 Stat. Ill,) has fixed the order in which they shall be paid, and this cannot be varied.

*249But, in the settlement of the estate of Kinard, the plaintiff will probably be allowed for this payment, although it cannot pass in the accounts of Enlow’s estate.

2. The plaintiff’s second exception is, “because the referee in making up the account, charged the plaintiff’s testator, as *executor de son*tort, with $55, for three beds, and $25, for a clock, when the witness who identified the property, and established its value, proved that the clock and, at least, one of the beds, went into, and continued in, the possession of Enlow’s widow, after his death.”

I-t does not appear that Kinard, the plaintiff’s testator, specially .interfered with this clock and bed. Enlow died on his premises, and the report states that part of his property came into Kinard’s actual possession, and the whole of it was in his enclosures ; and the referee charged Kinard with all the property, except where it was made to appear what had become of it. I suppose this was a correct rule. But, upon a review of the testimony, the referee discovered that this clock and bed, (which had never been in the actual custody of Kinard) was seen by one of the witnesses in the possession of Enlow’s widow, after her removal from Kinard’s. He therefore sustained this exception to the extent of the value of the clock and bed, making together $50; and I concur with him.

It was contended, indeed, that by his interference with part of the property, Kinard became executor in his own wrong *;*and, the character of executor being thus fixed on him, he became chargeable with the whole of the assets ; as well those which had not as those which had come to his hands. In our own case of *Leach vs. House,*(1 Bail. 42,) it was held that an *executor de son tort*is not liable beyond the assets which come to his hands. In that case there was no attempt to charge him to a greater extent; the demand sued on being clearly less than the value of the property interfered with by the defendant: so that the point did not actually arise in the case. But both reason and authority concur in supporting the *dictum*of the Judge who delivered the opinion in that case. (See *Wentworth Ex.*eh..14, p. 331; *Williams*Exr’s. ch. 5, p. 142.) The cases quoted in argument here do not *go to the*origin of the rule on the subject, but even they contain incontrovertible traces of the position that *executors de son tort*are liable only to the extent of their intermeddling. This was admitted in argument in *Porter and Bared'vris*case, (1 Mod. 213,) and it is necessarily implied in *250all those cases where it is held that it is a sufficient defence for such executor to plead that he delivered over the assets in his hands to a' lawful representative, before suit brought against him ; *(Keble vs. Osbaston,*Hob. 49 ; *Anonymous,*1 Salk. 313 ; *Padget vs. Priest, 2*T. R. 97 ; ’ *Curtis vs. Vernon,*3 T. R. 687.)

It is expressly laid down, that if an *executor de son tort*plead properly, he is not chargeable beyond the property which came to his hands, (Godolph. part. 2, ch. 8, sec. 2 ; *Wentworth Exor's.*p. 331; 1 Williams Exor’s. ch. 5, p. Í42 ;) and that, in an action by a creditor of the deceased, if he plead *plena administra-vit,*his liability shall be thus limited ; (1 Saunders’ Rep. 265, note 2 to *Osburn vs.*Rogers; Dyer 166, b. *in margine.)*The position is no where contradicted, and the reason of it is plainly this, that an *executor de son tort*is a trespasser, and, as such, is liable to the extent of his trespass ; but he cannot be made liable beyond this, because he has no right to reduce the other assets, as a rightful executor has, and therefore shall not be liable for not reducing and administering them.

3. The plaintiff's third exception is “because the referee allowed interest from the death of Enlow on all the articles of property charged to the *executor de son tort,*including the wages which he owed Enlow as his overseer.”

The referee has overruled this exception, and at first I was inclined ’to differ from his judgment, but upon more reflection, I think his decision is correct. A rightful executor would not be charged with interest, except upon funds bearing interest, until the expiration of one year from his entering on his administration. He would be allowed that time to ascertain the debts, and to arrange for his administration. But an *executor de son tort*is a mere trespasser, liable to damages for his interference, and takes possession not for the benefit of creditors, nor with a view to pay them, but for his own benefit. I therefore concur with the referee.

1. The first exception of the defendant, John Feagle, complains that his claim was ranked by the referee as a simple contract, when in fact it was a specialty. The referee has allowed this exception, which arose from a mistake at the reference; and I concur with him.

2. This defendant’s second exception complains “ that the referee did not confine the plaintiff to his plea of *plene admin-*istravit, put in to some actions at law yet pending, which plea *251was put in without full knowledge of the accounts of his testator, as *executor de son tort*of Enlow.” The referee has overruled this exception, and I concur with him. Nothing could be more unjust than to make a mispleading in another cause — (the mere effect of mistake) conclusive on the plaintiff here.

3. Feagle’s third exception complains “ that the referee, in stating the accounts, has allowed the *executor de son tort*credit, as for bond debts, for sums paid by him after Enlow’s death, on two sealed notes, in which he was Enlow’s surety ; and, also, that the referee has allowed .the plaintiff to set up, as a bond debt, a sealed note held by the *executor de son tort*against the said Enlow.” The referee has overruled this exception in all its- parts. I concur with him, in relation to the sealed notes paid by the *executor de son*tort, after the death of his reputed testator ; so far as the payments were within the amounts to which the sealed notes paid off, were entitled in a due course of administration. The other part of the exception stands upon different ground, and involves the question whether an *executor de son tort*is entitled to ■ retain for his own debt, as against other creditors. At first view, nothing can appear more just than to allow the *executor de son tort*to stand upon a footing with all other creditors ; and this, I have no doubt, governed the referee ; but the law is otherwise.

The statute of 1789, after providing by its 26th clause (5 Stat. Ill,) in what order the debts of testators or intestates shall be. paid by executors or administrators, declares, in the 31st clause (ib. 112) that all persons who, by intermeddling with the chattels and choses of a deceased have made themselves executors in their own wrong “ shall be made liable as trespassers” “ and charged as executors of their own wrong *at common*lato.”

The evident effect of these two clauses is this : the wrongful executor shall be liable, on the score of the assets which have come to his hands, to the extent that the *common law*would have charged him, but (the sum of his liability being thus fixed) the creditors to whom he is responsible shall be entitled to share it among them, according to the scale of distribution, established by the statute.

The liability of a wrongful executor, at common law, was for the whole of the assets with which he had intermeddled; that is to say, he was not entitled to retain any part of them for his own debts. So it was said in *Leach*vs. House, (1 Bail. 44) al*252ready referred to,,a case in our own courts. This decision is well founded. In *Coulter’s*case (5 Coke, 30,) where the question was directly made, “ it was resolved by the whole court that an executor in his own wrong should not retain ; for from thence would ensue great inconvenience and confusion; — for every creditor (and chiefly where the goods of the deceased are not sufficient to satisfy all the creditors) would contend to make himself executor in his own wrong, to the intent to satisfy himself by retainer; by which others would be barred. And it is not reasonable that one should tdke advantage of his own wrong; and if the law should give him such power, the law would be the cause and occasion of wrong, and of the wrongful taking of the goods of the deceased.”

All the cases hold the same doctrine. It is true that a subsequent grant of administration to the trespasser will cure the trespass, and justify the party in retaining for his own debt; and may be pleaded for that purpose, even though it be granted after action brought against the wrongdoer; as in *Vaughn*vs. *Brovm,*(2 Str. 1106) where it was said “it would be very hard to lay it down, that, if a man, who sues for administration, is opposed, and the cause runs out into any length, the acting *pendente lite*should be construed such a wrongful executorship as can never be purged, so as to give him the right of retaining.” But if he deliver the assets to another, to whom administration is committed after his trespass, this, according to *Bradbury*vs. *Reynel*(2 Cro. Eliz. 565) shall not purge his tort nor discharge his liability as wrongful executor ; — a doctrine, however, which was qualified by Holt, Ch. J. who hold (1 Salk. 313, anonymous) that if the delivery be made before action brought against him, the *executor de son tort*may support such transfer under the plea of *plene*administravit, but if the delivery be after action brought, it is otherwise. To the same effect is *Curtis*vs. *Vernon*(3 T. R. 587.)

Upon the right of retainer, the cases are innumerable ; all denying any such right to a wrongful executor. Therefore so much of this exception as relates to this point is sustained.

4. The fourth exception of this defendant objects to the credit allowed to the *executor de son tort*for a coffin for his testator. All the authorities say that payments or expenditures whieh a rightful executor might lawfully make, are good acts of administration in a wrongful executor. I concur with the referee in overruling this exception.

*253-Johnson and Stewart have put in two exceptions which have been substantially decided in the foregoing observations.

Thompson Young has also filed five exceptions ; the 1st, 4th and 5th of which have been disposed of in what has been said in relation to Feagle’s.

The second and third exceptions of this defendant raise questions of much difficulty. I have never known them to arise in the 27 years that I have been conversant with the profession ; and .although either these or kindred questions must necessarily have occurred, the counsel did not refer to a single decision or reported case upon the subject. I have found one, but it seems to have been little argued' and hastily decided.

The questions presented in these two exceptions arise in the following way:

The funeral expenses (being the only charge of the first grade,) are reported at $25.34. Then follow two judgments against Enlow in his life-time, amounting, principal, interest and costs, according to the report, to $83.93. The balance of assets, after paying these charges, is reported at $281.50, and has been apportioned by the referee among the bond creditors. Among the bonds is a sealed note held by Thompson Young, amounting, principal and interest, at the date of the report, to $285.98 ; but the sum allotted to this creditor out of the assets is only $139.55. His debt is reported to have been secured by a mortgage of several articles of Enlow’s property, which came to the possession of his wrongful, executor ; and he contended that this *mortgage*entitled him to take precedence of the other bond creditors ; in which case nearly the whole of his debt would have been satisfied. But the referee overruled this pretension, because his mortgage had not been registered.

He then excepted to the report:

■ “ 2. Because the referee did not allow this defendant’s debt (which was secured by a mortgage of property converted by the *executor de son tort*to his own use :) to rank as a mortgage debt *as against bond and simple contract creditors :*the objection of its non-registration having no validity as to them, but only applying as to judgment creditors.”

“3. Because the referee did not allow this defendant the value of the property on which he had a special *lien*by mortgage; whereas it is contended the mortgage should have been allowed to its full extent, there being sufficient assets, besides, to satisfy all the judgments.”

*254The referee overruled these exceptions : and I am now to consider them.

The 26th clause of the statute of 1789 (5 Stat. Ill,) is in the following words : “ The debts due by any testator or intestate shall be paid by executors or administrators, in the order following, viz:

“Funeral and other expenses of the last sickness, charges of probate^ of will or of the letters of administration ; *next,*debts due to the public ; *next,*judgments, mortgages and executions— the oldest first; *next,*rent; *then*bonds or other obligations, and lastly, debts due on open accounts. But no preference whatever shall be given to creditors in equal degree, (where there is a deficiency of assets,) except in the cases of judgments, mortgages, that shall be recorded, from the time of recording — and executions lodged in the sheriff’s *office;*the oldest of which shall be first paid ; *or*in those cases where a creditor may have a *lien*on any particular part of the estate.”

This clause of the statute is very badly drawn, and abounds in obscurities ; and I venture on the construction I am about to give it with much hesitation ; still trusting that the case will be carried up for further examination. It might have been a question formerly, whether the direction that the debts should be paid *ilinthe order following"*was not intended to give precedence to every species of claim enumerated, over every other species of claim subsequently enumerated in the statute; for instance to *funeral expenses,*(fee., over expenses for probate, (fee., and again to judgments over mortgages ; so that no mortgage could claim till all the judgments were satisfied. But I believe a construction has obtained, to which the general practice has conformed, that the *order*intended to be established consists in general classes ; as, for instance, funeral expenses and expenses of probate, form the first class, and are both put upon an equal footing.

So, again, all debts due to the public, whatever their form, whether judgments, mortgages or in any other form, constitute the second class. The third class consists of judgments, mortgages and executions, belonging to others than the public, and these are all put upon an equality, except such difference as may arise from their respective ages. And so on ; — all claimants for rent stand upon a footing, without regard to priority of date, as do all specialty debts. The last to be paid are open accounts, and these all stand upon an equality.

The grades of the debts being established by the classification *255I have spoken of; and it having been declared that as amongst judgments, mortgages and executions, the oldest should be first paid, and so on down to the youngest (which was the only instance of discrimination or preference allowed in any one class) the Act goes on to declare that in *no other*class shall there be any discrimination allowed, except in that one. It then takes up that class and endeavors to give a clearer view of what it meant by its previous declaration, that as among the subjects of the class, the oldest should be first; and by a very awkward phraseology, enacts that the date of mortgages shall be determined by the time of their registration. The Act of 1698 had provided that as among mortgages, the first recorded should be first, in efficacy. This Act applies the same principle as between mortgages and judgments in the distribution of the assets of deceased persons.

It follows I think from these observations that the non-registration of a mortgage cannot effect it except when it comes in conflict with a debt of its own class, for instance with a judgment, execution, or another mortgage.

There was not until lately any statute in this State requiring mortgages (especially of personalty such as this)to'be recorded, or declaring them invalid for want of registration. The only effect of the registration spoken of in the Act before us, relates to the order of payment in case of conflict with a demand of *“ equal*degree,” that is with a demand of the same class. The conflict in this case is with bonds *■*an inferior class, and the non-registration cannot affect it. Its *status*in its own class being unaffected, it is entitled by the very terms of the statute to its proportion of *assets,*in its character of mortgage; without regard to its *lien*or the grade of the contract to which it is collateral.

A contrary judgment seems to have been formed in *Tunno*vs. *Happoldt,*(2 McC. 188,) the case to which I before referred. In that case there was a deficiency of assets as among the simple contract creditors. Ogier, one of the creditors, held a promissory ■note secured by a mortgage, and claimed payment as a *bond*creditor in virtue of his *mortgage.*This of itself is enough to show that the case was not argued with reference to the precise terms of the Act. It- seems to have been hastily determined. The judge who delivered the opinion for the court, simply remarking “the claim of Ogier was by simple contract, i. e. by a note ; and the question is — can the mortgage deed change the character of the note, or give it a preference to other simple *256contract debts under the administrators’ law? I cannot perceive any reason for supposing the simple contract debt changed by the mortgage. The deed gave a particular *lien*upon certain property, but here its object and intent terminated, and otherwise left the note as it stood before, still a simple contract.”

I am perfectly satisfied from the report of this case, that the Act was never adduced or examined. If it had been it would have been seen that mortgages, *as*mortgages, are expressly provided for, and given a precedence to which as *mere specialties*they were not entitled under the Act : and, with deference,- the question was not whether the mortgage could change the note or elevate it to a higher grade, but whether the character of the debt intended to be secured' by the mortgage, could *divest*the mortgage of its character or dignity. Again, the *lien*of the mortgage was not the test of its title to stand in the rank assigned it by the Act. As well might it be said of a judgment, when the intestate had no land upon which its lien could operate, that it is no longer entitled to be paid as a judgment. The effect of the *lien*of mortgages is provided for in a subsequent part of the Act, and forms quite a distinct consideration. At present we are considering mortgages without reference to this *lien.*There may be mortgages which have lost their *lien;*as, for instance, by the destruction of the mortgaged property. In these cases the Act certainly could not intend to add to the misfortune of the mortgagee, by degrading his mortgage. Nothing but the annihilation of the mortgage can deprive him of the preference given it by the Act *eo nomine.*If it *be*a mortgage, it suits the description of the Act, and is entitled to what the Act gives it; and that is a rank above not only simple contracts but bonds and all other specialties.

I spoke of the *lien*as distinguished *from the*grade of the instrument itself; and this brings me to remark upon another part of the Act, applicable to the exceptions now under consideration.

The statute declares that no preference shall be given among creditors of equal degree, except in the cases already noticed, *‘‘or*in those cases where a creditor may have a *lien*on any particular part of the estate.” These, are two distinct exceptions.

There may be special *liens*which are not mortgages ; such as pledges, *&c.,*but all mortgages are in their origin, special *liens.*The very fact, that after assigning rank to mortgages in general terms, it was thought necessary to make further provision for special *liensj*serves, I conceive, to confirm the construe*257tion I have given to that part of the Act, upon which 1 have already commented, and to manifest that the Legislature, in the foregoing words, contemplated mortgages apart from their *lien,*and intended to provide for their payment, irrespective of that quality. But now the statute comes to consider the *lien*itself, and to provide for *it.*And justice as well as a due regard to contracts required this. At the date of this Act, all mortgages whether real or personal, carried the title to the mortgagee, as in respect to those of the latter class, (such as the mortgage of this creditor,) is still the case. At the death of Enlow the property mortgaged was not *his*property, but the mortgagee’s, subject only to an equity of redemption. It might have borne a question in this very case, though it was not raised, whether Kinard was *executor de son tort*in respect to this property; for, in law, it was not *assets*of Enlow. But (not to take up that question,) the manifest intention of the Legislature was to preserve whatever *liens*existed. It would never do to say that the mortgagee had a title so long as the mortgager lived, which ceased in him and revested in the latter at his death. But at all events, the Act expressly makes a difference on account of the lien; and this should have been attended to in making up the account in this case.

It would seem to follow from these remarks, that this creditor would be entitled, in virtue of the *lien*of his mortgage, to claim payment, so far as the mortgaged property came to the hands of the wrongful executor, and after this is exhausted, to claim, as *mortgage creditor merely,*a precedence over the bonds for the balance, so far as the *assets*extend. The distinction between the *lien*of the mortgage, and the mortgage itself, will, however, be of no practical importance in this case, as it is enough for Mr. Young to prevail over *the bonds.*That will give him the whole of the remaining *assets.*

If the exception had claimed a preference over, or an equality with the judgments, so far as the *lien*extends, I should have considered a further question — whether such a *lien*would not overreach all the higher grades. But the form of the exception concedes to the judgments, and this question is unnecessary.

The 2d and 3d exceptions of this creditor are sustained as far as the opinion I have expressed upon them goes.

It is ordered that the report be recommitted, to be modified according to the foregoing opinion.

*258The defendants appealed, and moved this court to reverse so much of the decree as sustains the complainant’s second exception to the extent of exempting John M. Kinard’s estate from liability for “the value of the clock and bed, making together $50,” upon the ground :

That the character of executor in his own wrong being *fixed*upon Kinard, he ought to be held responsible for all the property of Enlow which was upon his premises ; and the fact that the clock and bed were afterwards seen in Mrs. Enlow’s possession, ought not to exempt him from liability for them, especially as she was his daughter.

The defendants, Johnson and Stewart, appealed, and moved this court to reverse so much of the decree as sustains the de>-fendant Young’s second and third exceptions, upon the grounds:

1st. That the mortgage given by Enlow to Young is void, for want of recording and other causes.

*2d.*That Young was Enlow’s security to Paysinger, and the mortgage was given to secure Young from loss on account of this securityship ; and Young having, after Enlow’s death, paid the debt to Paysinger, can be allowed to set up the demand as a bond debt only on equitable principles, and it would be against equity to allow the demand to stand as a mortgage debt, and thus to give it priority over the bond debts.

3d. That if the mortgage to Young is valid, it is good only as to the property embraced in it, and it does not give Young the right to have his debt paid out of the property not embraced in the mortgage,- i’n exclusion of the creditors by bond.

4th. If Young claims the property embraced in his mortgage, he cannot, according to the principles of equity, be allowed to stand in Paysinger’s shoes as to the balance of the debt.

5th. That the decree as to this matter, is contrary to equity in other respects.

Pope, for appellants,

cited Bail. Eq. 397 ; 3 Yes. 128 *j*19 Yes. 525; 1 Story Eq. p. 531 ; 2 Yes. Jr. 377.

Fair, contra.

*Curia, per*Johnston, Ch.

This court feels much difficulty in giving construction to the Act of 1789, recited in the decree; and is not prepared to say, that, if the question were entirely open to them, the construction adopted by the Chancellor is not a fair deduction from its phraseology. But, it is deemed expedient to defer to the case of *Tunno vs.*Happoldt, cited in the *259decree, as an exposition of the court of law; leaving to that court, or to a future occasion, the consideration of the suggestions made in this case. The court is satisfied with the decree upon all other points.

It is therefore ordered, that the decree be modified, by allowing the mortgage to prevail only so far as it had a lien on property intermeddled with by the *executor de son*tort; and that in all other respects the decree be affirmed.

Johnson and Dunkin, CC. concurred.