rates, etc., left untouched by his orders, is largely academic. What has been said is applicable in some measure to this question, though in a case involving such a situation it would be impossible to rely on the proposition which is the central thought of this discussion, viz., that the Federal Control Act provides specifically the exclusive remedy for rates, etc., initiated by the President. But, if a complaint should be filed with some state commission, relative to a rate not initiated by the President, it would be a simple matter for the President to initiate a rate between the points in question; so that any difficulties which might be anticipated in this quarter do not seem to be of a practical nature.

Finally, this construction is in furtherance of the provisions of the President's Proclamation of April 11, 1918, which reads as follows:

"Until, and except so far as, said Director-General shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes of the United States and orders of the Interstate Commerce Commission, and to all statutes and orders of regulating commissions of the various States in which said systems or any part thereof may be situated. But any orders, general or special, hereafter made by said Director-General shall have paramount authority and be obeyed as such"

a provision which is almost verbatim the same as a corresponding provision in the President's Proclamation of December 26, 1917.

It should be noted in conclusion that the rates, etc., initiated by the President have superseded the previously existing rates, etc., both interstate and intrastate. Rates so superseded are nonexistent and cannot be revived, but new tariffs must be published if the current rates, etc., are to be changed. It would seem to follow that if federal control were to come to an end without any new legislation the existing rates would continue as the lawful rates on intrastate traffic as well as on interstate traffic, and new tariffs would have to be filed with the state commissions. It seems inconceivable, however, that federal control could terminate without some additional legislation and such legislation will doubtless deal with the rate question.

LAW SCHOOL,

UNIVERSITY OF PENNSYLVANIA.

Henry Wolf Biklé.

PROBLEMS IN PROBATE AND ADMINISTRATION

WHEN

EXECUTOR DE SON TORT

THENEVER one not appointed executor or administrator wrongfully intermeddled with the goods of the deceased he was known as an executor de son tort.1 It was commonly said that he had all of the duties but none of the rights of a real executor.2 Such an intermeddling would seem to be a tort for which the rightful executor or administrator could, if already appointed, sue,3 or, if later appointed, take proceedings by relation back. This simple procedure would seem to-day amply to protect the estate. But under the older law confusion, it was thought, might result if such were the sole remedies of the estate. The executor was conceived as taking title from the will, not from the probate court.5 He had a prima facie right to the surplus, if no residuary legatee were named. Consequently the court had no discretion but to appoint him, unless indeed he were insane. And the probate judge could not require of him a bond, if he were insolvent or otherwise unsuitable." He could, therefore, bring a writ and his general acts bound the estate before probate, provided the will were at some later time proved, even though the executor himself never obtained letters.10 Such being the case a wrongful intermeddler by taking possession of the estate might well mislead strangers into thinking there was a will in which he was named executor. And this fact could not be verified, for, as a rightful executor could act without proving the will, those interested might well feel that there was no use in searching probate records to

7

1 I WILLIAMS, EXECUTORS, 10 ed., 183.

8

2 Carmichael v. Carmichael, 2 Phill. C. C. 101, 103 (1846).

3 I WOERNER, AMER. LAW ADM., 2 ed., § 193.

4 See infra, page 319.

Smith v. Milles, 1 T. R. 475, 480 (1786).

6 I WILLIAMS, EXECUTORS, 10 ed., 1217.

7 Rex v. Raines, 1 Ld. Raym. 361 (1698).

• Evans v. Tyler, 2 Rob. (Eccl.) 128, 133, 134 (1849).

• Rex v. Raines, supra.

10 Brazier v. Hudson, 8 Sim. 67 (1836).

find his appointment. Thus grew up, as much as a protection to those interested as a penalty on the wrongdoer, the essential features of the anomalous doctrine of executor de son tort: that a creditor, legatee or next of kin after debts paid could proceed directly against the intermeddler as executor."

14

In such action he was named as executor generally.12 Accordingly he could so plead that he was only liable to the extent of the assets that came to his hands.13 And he could show under the plea of plene administravit that he paid debts of equal or of superior degree to that of the plaintiff. Whether the wrongdoer was chargeable by the executor merely as a tortfeasor or had incurred the liability of an executor de son tort when there was a duly appointed representative in existence at the time of his acts seems to have depended upon whether the wrongdoer interfered with the estate as executor.15 In any event it seems clear that he could plead in mitigation of damages, though not in bar, of the suit of the true executor or administrator, payment of debts of the estate.16

In Coulter's case 17 it was said: "it is clear, that all lawful acts, which an executor de son tort doth, are good." The difficulty with this statement is that it is not clear what acts are "lawful acts." It must be remembered also that an executor de son tort did not have all the rights of a true executor. He could not, for instance, retain for his own debt,18 nor if the estate was insolvent, prefer one creditor to another of equal degree.19 Apparently the act of the wrongdoer was good only if it was such an act as the true executor was bound to perform, subject to the qualification that the intermeddler was acting as executor, and to a greater extent than the solitary act

11 1 Woerner, Amer. Law Adm., 2 ed., § 193.

12 COULTER'S CASE, 5 Co. 31 a.

13 Dyer, 166 marg.

14 Oxenham v. Clapp, 2 B. & Ad. 309 (1831).

16 Roggenkamp v. Roggenkamp, 68 Fed. 605 (1895); Brown v. Walter, 58 Ala. 310 (1877); Leach v. Prebster, 35 Ind. 415 (1871); Tobey v. Miller, 54 Me. 480 (1865); Glenn v. Smith, 2 Gill & J. (Md.) 493 (1830); Gay v. Lemee, 32 Miss. 309 (1856); Lenderink v. Sawyer, 92 Neb. 587 (1912); Howell v. Smith, 2 McCord (S. C.) 516 (1823); Kinard". Young, 2 Rich. Eq. (S. C.) 247 (1846); McElveen v. Adams, 94 S. E. 733 (S. C.) (1917); Oxenham v. Clapp, 2 B. & Ad. 309 (1831); Am. & Eng. Ann. Cas. 1914A, 263, note.

17 5 Co. 30 b.

18 Alexander v. Lane, Yelv. 137.

19 I WILLIAMS, EXECUTORS, 10 ed., 195.

complained of.20 If, then, the original intermeddler, acting as executor, used the assets in paying valid debts of the estate, the anomalous principles of the general doctrine of executor de son tort seem to have protected the creditors thus paid.21 And, if assets were sold to pay debts and debts were thus paid, the purchaser should have been protected.22 Probably, however, these anomalies did not extend so far as to protect a debtor of the estate in payments to the executor de son tort;23 though the debtor logically should have been able to invoke them if the money was used in the proper administration of the estate. Though something might perhaps be said for this curious doctrine under the old English law, there should be nothing left of it under a system which assimilates executors to administrators by giving the court a discretion in their appointment, by requiring them to file bonds, and by abolishing the old presumption in regard to the residue of the estate; in short, where the executor takes title not from the will but from the court.24 Such is the theory of the executor's right in a number of the United States, and in some of our jurisdictions the law of executor de son tort is abolished; 25 and in others it is falling into disuse.26

20 I WILLIAMS, EXECUTORS, 10 ed., 195; Mountford v. Gibson, 4 East, 441 (1804). But see Dorsett v. Frith, 25 Ga. 537 (1858).

21 Thomson v. Harding, 2 E. & B. 630 (1853).

22 Roumfort v. McAlarney, 82 Pa. 193 (1876); Pickering v. Thompson, 24 Ont.

L. Rep. 378 (1911). But see Carpenter v. Going, 20 Ala. 587 (1852); Woolfork v. Sullivan, 23 Ala. 548 (1853).

23 See Lee v. Chase, 58 Me. 432, 435 (1870).

24

I WOERNER, AMER. LAW ADM., 2 ed., § 172.

25 ALABAMA, CODE (1907) § 2801; Bowden v. Pierce, 73 Cal. 459, 463, 14 Pac. 302 (1887); FLORIDA, Comp. Laws (1914) § 2411; Kansas, Gen. StatS. (1915) § 4495; MINNESOTA, GEN. Stats. (1913) § 8177; Rozelle v. Harmon, 29 Mo. App. 569, 103 Mo. 339, 15 S. W. 432 (1888); Dixon v. Cassell, 5 Ohio, 533 (1832); Oregon, Laws (1910) § 384; Ansley v. Baker, 14 Tex. 607 (1855); Washington, Codes Stats. (1915) 8971; WISCONSIN, STATS. (1915) § 3259.

On the other hand, the doctrine has been perpetuated by statute in some states. GEORGIA, ANNOT. CODE (1914), § 3886; MASSACHUSETTS, REV. LAWS (1902), c. 139, §§ 14, 15; MAINE, REV. STATS. (1916), c. 68, § 40; MISSISSIPPI, ANNOT. CODE (1917), § 1768; NEVADA, REV. LAWS (1912), §§ 5952-55; NEW HAMPSHIRE, PUB. STATS. (1901), c. 188, § 16; NEW JERSEY, COMP. STATS. (1910), § 2258; NORTH CAROLINA, REVISAL (1908), § 2; RHODE ISLAND, GEN. LAWS (1909), c. 312, § 30; SOUTH CAROLINA, CODE (1912), § 3621; VERMONT, PUB. STATS. (1906), § 2860.

In Georgia, Nevada, New Hampshire, and Vermont the executor de son tort is liable for double the value of the goods appropriated by him. See references in preceding paragraph of this note.

26 See Rozelle v. Harmon, 29 Mo. App. 569, 578 (1888).

EFFECT OF PROBATE AND ADMINISTRATION

It is common knowledge that by statute an executor or administrator may sue for a tort to the property of the estate committed during the life of the deceased. This chose in action is as much an asset as a watch or a horse. But suppose after the death of the decedent and before the appointment of the personal representative a similar wrong is done to the estate.

If the deceased died intestate, the assets passed on death to the ordinary, who was usually the bishop. The statute of Westminster the Second, c. 19 (1285), recognized that personal property of an intestate passed immediately to the ordinary.27 The Statute of 31 Edw. III (1357), c. 11, required

"that in case where a man dieth intestate, the ordinaries shall depute the next and most lawful friends of the dead person intestate to administer his goods; (2) which deputies shall have an action to demand and recover as executors the debts due to the said person intestate in the King's court. . . . (4) And they shall be accountable to the ordinaries, as executors be in the case of testament, as well of the time past as of the time to come."

By Stat. 22 & 23 Car. II, c. 10 (1670), the administrator became bound to distribute the surplus. The Probate Amendment Act, 21 & 22 Vict., c. 95, § 19 (1858), expressly vested the personal estate of an intestate until letters granted in the judge of the Court of Probate "in the same Manner and to the same Extent as heretofore they vested in the Ordinary." Though the property was in the ordinary, it was hardly possible for him to sue for a tort to the estate while he held title, for the object of Stat. 31 Edw. III, c. 11, was to take the administration from him.28 Indeed, subdivision 4 of c. II made the administrator accountable as executor "as well

27 See Dyer, C. J., in Graysbrook v. Fox, 1 Plowd. 275, 279.

28 In Graysbrook v. Fox, 1 Plowd. 278, Weston, J., said referring to the statute, 31 Edw. 3, c. 11: "And the reason thereof seems to be because the Ordinary is a spiritual Governor, wholly conversant in spiritual Causes, to whom it is inconvenient to toil in the temporal Concerns of others, and therefore the Statute has given him Liberty to appoint others to take the Trouble of the Administration of the Interstate's Goods, and they shall have Power as Executors, and may recover the Debts of the Intestate; and so it has remedied the said Mischief." Dyer, C. J., and Walsh, J., said on page 279: "And Administrators are appointed by the Ordinary for his Ease, and to discharge himself of the Burden of the Office."