
    ELIZA A. THOMAS, as Executrix, etc., Respondent, v. THE NEW YORK LIFE INSURANCE CO., Appellant.
    
      Executors—powers before probate.—Doctrine of relation as to acts of executor de son tort.—Damages.
    
    Before the statutes of this state in regard to executors were passed, the powers and title of an executor had the broadest scope, and he was a complete executor before probate, to all purposes, except bringing an action.
    An executor holds from the will itself, and the law, by a subsequent probate of it and qualification of the executor, has secured two principal objects, viz., proof in the only form the law can recognize, and that there will be no renunciation of the obligation of administration ; and notwithstanding 2 i?. 8. 71, § 16, providing that no executor, before letters, shall “have any power to dispose of any part of the estate, except,” etc.,—a sale by a person named in a will as executor, of assets of the estate, before probate, for full value and for the benefit of the estate, is validated by the subsequent qualification of the same person as executor.
    
      
      Decided April 7, 1884.
    Where a sale so made, is not one which would be a rightful act of administration, and is not made valid by relation, in an action for conversion of the goods brought by the executor after probate and letters, the true rule of damages requires that the amount .of money formerly paid into and remaining with the estate, should be applied to reduce the amount of the recovery, viz., the true value of the goods.
    The principles and authorities as to executors and executors de son tort reviewed and considered.
    Before Sedgwick, Ch. J., Freedman and O’ Gorman, JJ.
    Appeal by defendant from judgment entered upon finding and conclusions of a judge, he trying the issues by consent.
    The action was for damages for the conversion by defendant of goods and chattels, part of the testator’s estate. The act of conversion, as alleged, was the defendant’s buying and receiving from the plaintiff, before she had taken out letters testamentary, the goods and chattels in question, she selling and delivering them to the defendant.
    The following findings were made by the trial judge :
    “ 1st. That the above-named Griffith Thomas departed this life on or about January 6, 1879.
    “3d. That at the time of the decease of said Thomas he was the owner and possessor of certain personal property consisting of office furniture, carpets and fixtures.
    “3d. That previous to his death the said Thomas occupied an office in the building of the defendant at No.-346 Broadway, in the city of New York, and the personal property mentioned in the previous finding was stored in said office at the time of the decease of said Thomas.
    ‘1 4th. That the personal property was of the value of $400.
    “ 5th. The plaintiff in the action was, by the terms of the last will and testament of the said Thomas, nominated as executrix thereof, and on or about July 6, 1879, by an order, decision, or decree of the surrogate of the city and county of New York, the said last will and testament was duly admitted to probate, and letters testamentary issued to the plaintiff, who thereupon duly qualified and entered upon the discharge of her duties as such executrix.
    “ 6th. That on or about February 18, 1879, the defendant took possession of the property contained in the office of the said Griffith Thomas, deceased, situate in the building of defendant as aforesaid.
    “7th. That on or about February 24, 1879, the plaintiff executed to the defendant a release and bill of sale of said personal property, and the defendant, in consideration thereof, paid to the plaintiff the sum of $400, and further released and canceled a debt of $5,250 due or claimed to be due by the said Thomas to the said defendant.
    “8th. That at the time of the execution of the said bill of sale or release the defendant knew that the plaintiff had not received letters testamentary, and had full knowledge of the fact that she had not yet qualified as executrix of the said last will and testament of Griffith Thomas, deceased.
    “9th. That the money, paid by the defendant to the plaintiff was not used for the purpose of defraying funeral expenses nor for the purpose of preserving the estate.”
    And as conclusions of law:
    “ 1st. That the plaintiff had no power to execute the bill of sale and release to the defendant, she not having received letters testamentary on the will of Griffith Thomas, deceased, at the time of the execution thereof.
    “2d. That the consideration therein expressed as far as it released a debt due by the plaintiff’s testator to the defendant was invalid and contrary to law.
    “ 3d. That the said release and bill of sale was wholly void and without any effect.
    114th. That the plaintiff should recover judgment for the value of the said personal property, to wit, the sum of $400, together with the costs of this action, to be taxed by the clerk.”
    
      Chamberlain, Carter & Hornblower, for appellant.—
    The title of an executor takes effect by relation, so as to validate transactions in good faith, intermediate between the date of the testator’s death and the date of letters testamentary. (a) At common law, the title of an executor is derived from the will, and not from the letters testamentary. The issuing of the letters is merely a formal authentification of his title, but confers no new rights.
    It is said in Williams on Executors (6th Am. ed. p. 293), that the probate of a will merely gives the authenticated evidence of an executor’s title, and is not the title’s foundation; “ for he derives all his interest from the will itself, and the property of the deceased vests in him from the moment of the testator’s death.” Further, at p. 302, “ the executor, before he proves the will in the probate court, may do almost all the acts which are incident to his office, except only some of those which relate to suits.” “He may pay or take releases of debts owing to the estate and “he may sell, give away, or otherwise dispose at his discretion, of the goods and chattels of the testator, before probate.”
    (6) At common-law, the title of an administrator is derived from the granting of letters ; but even in case of an administrator, when the letters have been granted, his title relates to the date of the death of the intestate, and validates acts of the administrator intermediate between the death of the intestate and the granting of letters” (Whitehall v. Squire, Holt, 45; Carthew, 103; Vaughan v. Browne, Andrews, 333; Walker v. May, 2 Hill Ch. [S. C.] 23; Rattoon v. Overacker, 8 Johns. 126 ; Priest v. Watkins, 2 Hill, 225 ; Vroom v. Van Horne, 10 Paige, 549).
    
      (c) Our statute has altered the common law rule as to executors ; but the effect of this alteration is merely to assimilate the rule to that which formerly applied to administrators. The language of the statute is as follows (2 R. S. 71, § 16): “ Ho executor named in a will shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the testator, except to pay funeral charges ; nor to interfere with such estate in any manner further than is necessary for its preservation.” This statute does not, in terms, abolish the common law, that letters of administration, as well as letters testamentary, date back to the death of the intestate or testator, so as to validate the theretofore unauthorized acts of the administrator or executor ; and it surely ought not to be so construed by implication. The rule should be applied that “ statutes in derogation of the common law should be strictly construed.’' The decisions of the courts since the revised statutes support the view for which we contend (Thomas v. Cameron, 16 Wend. 579; Priest v. Watkins, 2 Hill, 225 ; Vroom v. Van Horne, 10 Paige, 549; Matter of Faulkner, 7 Hill, 181; Bellinger v. Ford, 21 Barb. 311; Humbert v. Wurster, 22 Hun, 405).
    
      (d) Ho question can be made here as to the fairness or good faith of this transaction between these parties, in view of the findings of the trial court.
    
      W. Bourke Cockran, for respondent.
    The Revised Statutes expressly prohibit and declare invalid any transfer of property of a deceased person by his executor before the issue of letters testamentary (2 R. S. p. 71, § 16). The courts have been repeatedly called upon to pass on this statute, and have uniformly held that its provisions were an express limitation of the powers of executors (Humbert v. Wurster, 22 Hun, 405). If the law on this subject were still unsettled the defendant’s argument might be regarded as an ingenious plea for a different rule of construction, but it is now too late to disturb the interpretation which has become settled by precedent and established by adjudication. The defendants’ argument is based entirely on decisions as to the rights and powers of administrators before appointment, but he forgets that the common law rule still applies to them, while the powers of an executor have been expressly limited by statute (Thomas v. Cameron, 16 Wend. 579). Whenever any .act of an executor involving the interference with or disposal of property of his testator, before the granting of letters testamentary has been questioned in the courts, such act has been decided to be unlawful and without binding effect (Thomas v. Cameron, 16 Wend, supra; Balinger v. Ford, 21 Barb. 301).
   By the Court.—Sedgwick, Ch. J.

Before the statutes of this state were passed,- the powers and title of an executor had the broadest scope. In Wankford v. Wankford (1 Salk. 299), the judges agreed that an executor is a complete executor to all purposes, but bringing of actions before probate; that before probate he may release an action, may be sued, may alien or give away the goods, or otherwise intermeddle with them.

He could not bring an action before probate, because he could not show the will proved under the seal of the proper court. In 11 Vin. Ab. 202, Execution (Aa) 2, it is said upon the cases cited, “ If an executor, before probate of the will, bring an action of debt upon a bond due to him as executor, but when he declares he shows it to the court proved, this being proved after the action brought, yet the action is well brought, because he was executor before,probate, though by law he is not permitted to sue before probate ; yet this being proved, the impediment is removed ab initio. for he by showing of the will to the court, satisfies the ceremony which the law requires, which he has done, so as the law requires.”

In Hensloe’s Case (9 Rep. 38 a), it is said: “The executors have their title by the will, which is temporal, and to the goods and chattels also which are temporal, as it is agreed in Plow. Com. in Giresbrook’s Case, 280, which will is complete as to all goods in possession and reversion, and as shall be after said, to release debts and duties, before any probate. But as to bringing of actions, in the king’s court, the judges do not admit the executors to sue for things in action, unless they show the will proved duly under the seal of the ordinary .... so that the probate of the will doth not give them any interest or title either to the things in action or in possession, for they have their whole title and interest by the will, and not by the probate ; but yet without the probate, the judges will not allow them to bring actions.”

These powers of executors named in a will are still valid, excepting to the extent they have been changed by the statutes. So far as this case is concerned, the principal provision of the statute is 2 R. S. 71, § 16: “ No executor named in a will shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the testator, except to pay funeral charges, nor to interfere with such estate in any manner further than is necessary for its preservation.”

A construction of this statute was involved in the decision of Thomas v. Cameron (16 Wend. 579). Judge Bronson considered the effect of a plea that the plaintiffs who sued as executors, were not executors at the time of the commencement of the action, without saying that they were not afterwards executors. He thought that at common law the plea should have alleged that the plaintiffs are not and never were executors, but that under the statute it was sufficient. The persons named as executors could only acquire the right to sue by proving the will. “If they were not executors at the time the suit was commenced, letters subsequently obtained would not aid them by relation. The statute has introduced a new rule, by taking away the common law right to sue before probate.” He had said, “If the goods of the testator are taken from the executor before probate of the will he may maintain trespass, trover or replevin on his own possession, and in such a case he is not obliged to make a profert of the letters testamentary.”

Judge Bronson also gave the opinion in the Matter of Faulkner (7 Hill, 181). Falkner and one Finley were named as executors in the will of one Elliott. Finley proved the will, and qualified. Before Faulkner qualified he received several sums of money belonging to the estate. Afterwards he qualified. He being indebted, absconded. At a meeting of creditors under a statute, Finley, as executor, claimed for the estate, priority of payment out of Faulkner’s property, of the sums of money received by the latter, under the statute that the trustees “shall first pay-all debts that may be owing by the debtor as executor, etc.’ ’ The opinion said that the objection urged was that under the 16th section, 2 R. S. 71, Faulkner was not executor at the time he received the money, and that Thomas v. Cameron (16 Wend. 579), was cited. “ But the answer is, that when Faulkner qualified as executor, his authority related back and legalized the payments which had previously been made to him (Priest v. Watkins, 2 Hill, 225). He afterwards held the money, and it was a debt against him as executor.”

Undoubtedly, the court must have had in mind 2 R. 8. 449, § 17. “No person shall be liable, as executor of his own wrong for having received, taken or interfered with the property or effects of a deceased person, but shall be responsible as a wrongdoer in the proper action, to the executors, etc., of such deceased person for the value of any property or effects so taken or received, and for all damages caused by him to the estate of the deceased.” It must have been considered that the subsequent qualifying as executor operated by way of relation so as to prevent Faulkner being deemed an executor of his own wrong, or liable in trover or trespass only.

Priest v. Watkins (2 Hill, 226), stated the law in reference to administrators. The plaintiffs were administrators, etc., of David Benson, one being his widow. After the death, before letters of administration had been taken out, the widow had received payment of a note, part of the estate of the intestate. After the plaintiffs had received the letters, they brought suit upon the note, and the payment was pleaded. It was held to be a defense. For the plaintiffs the statutes that have been referred to were cited. The court said “ that, independent of the provisions of the Revised Statutes as to executors de son tort, the letters of administration would have related back and legalized the payment in question can admit of little doubt (Rattoon v. Overacker, 8 Johns. 126; 1 Will, on Ex. 240, 396-7), and we are of opinion that those provisions were not intended to operate any alteration of the law in this respect.” -It will be borne in mind that a person entitled to administration had no power or authority, before taking letters, to interfere with the estate. He was without the power, as the statute says the executor shall be without power.

In Bellinger v. Ford (21 Barb. 314), the court distinguished cases like Thomas v. Cameron, where an act may not be made valid by relation and such where it may be, like the cases already cited, and Vroom v. Van Horn (10 Paige, 549). As to the latter kind of case, Judge Bocees said they were cases where the executor or administrator had received or collected money belonging to the estate, voluntarily paid to him, or when he had wrongfully taken possession of and converted to his own use, property belonging to the estate of the testator or intestate, before administration was granted to him. As to all such acts, he stands the same after receiving letters, as if he had been executor or administrator at the time. Such was the rule of the common law, and this doctrine of relation has not been changed by statute, &c.,” but this rule applies to those cases only “ where money is obtained, without any coercive proceedings, and where property of the estate shall have been wrongfully appropriated, and not to illegal or coercive acts against third persons and their property.”

When it is kept in mind, that an executor holds from the will itself, as if he were an agent or attorney of the testator and that the law by a subsequent probate of the will and qualification as executor has secured two principal objects, viz. ; proof in the only form the law can recognize, and that there will be no opportunity of a renunciation of the obligations of administration, the application of the doctrine of relation seems to be reasonable. Apparently, the cases that have been cited are authority that a sale like the present is validated by the subsequent qualifying as executrix.

In a certain sense, a person having a right to be qualified as executor because named in the will, was a!t common law under the same restrictions as those declared by the statute. Until the will was proved, there was no evidence that he had any right to intermeddle with the goods of the testator, and if he did intermeddle, it would appear that he had no lawful power or authority so to do. The consequence would be, that he would be liable, as executor de son tort, although charged in form as rightful executor, in favor of creditors. Under our statute, such a person is held to be not executor de son tort, but a trespasser responsible to the executor or administrator of the deceased for the value of the goods. It is according to ordinary legal rules anomalous that a person having a right to be made executor, who intermeddles, should after his appointment be liable to himself as executor in tort. It therefore may be that the subsequent act of qualification, will, under the statute affect the prior tort, as the probate of the will would at common law.

I have intended, in what has been already said, to limit the act of the executor before letters to a transaction that would be rightful if letters had been granted—for instance, a sale like the present one for true value and for the benefit of the estate.

It seems to me well, however, to take another view, to assume that the sale was contrary to the 16th section, was not made valid by relation, and to inquire what damages the statutes intended should be recovered, under circumstances like the present.

The 2 R. S. p. 81, section, 60 declares that every person who shall take into his possession any of the assets of any testator or intestate, without being thereto duly authorized, as executor, etc., or without authority, etc., shall be liable to account for the full value of such assets to every person entitled thereto, and shall not be allowed to retain or deduct from such assets for any debt due to him. Although this last phrase shows a reference to an act of administration by an executor de son tort, yet the previous words are general and refer to any person.

By 2 R. S. 449, § 17, which takes away liability as executor of his own wrong, and creating instead liability as a wrongdoer, makes the person responsible for the value of any property or effects so taken or received, and for all damage caused by his acts, to the estate of the deceased.

At common law, an executor de son tort could not retain for his own debt, or receive advantage for any act done by him for his own benefit, but under his plea of plene administravit, he might give in evidence payment of just debts, or in .an action of trover, the payment of debts might be recouped from the damages (Sedgwick on Dam. [431]; Middleton’s Case, 3 Co. Rep. 55 and note; Coulter’s Case, Id. 60 and note). This is the rule, when no letters of administration had been subsequently taken out or will proved.

In Woolley v. Clark (5 Barn. & A. 744), the case was of an executor of a last will, suing for damages from the sale of goods of the estate made by the defendant, who had qualified as executor, under a former will, it not being known that there was a later will. But before the sale, the defendant had notice of the last will. Mo mitigation of damages was allowed. The decision was put on the ground that the plaintiff took title from the last will itself, while the defendant had no title, the will under which he qualified, having been annulled by the fact that there was a later will, and he having sold with notice of it. In the present case, the plaintiff had the title, her power to sell being restrained, until letters were issued to her.

Mountford v. Gibson (4 East, 441), passed upon an act, which in itself was a bare trespass, and not shown by the circumstances to be an act of administration, though tortious. The case does not pass upon whether if it had been an act of the latter kind, the defendant would have been liable.

In the present case, the evidence shows that the transaction was such as would have been a rightful act of administration, and appeared to be for the benefit of the assets of the estate. There was no proof that the money paid for the goods was taken by the plaintiff for her personal benefit. It cannot be intended, that she without alleging and proving it, places her action upon a conversion by her of the money. It is to be intended that the money became and remained part of the assets.

I am of opinion that under these circumstances, the true rule of damages, the executrix not claiming the goods themselves, would require that the amount of money formerly paid into and remaining with the estate, should be ■ applied to reduce the amount of the recovery, which was the whole value of the goods. The most of what has been said in this opinion concerns the responsibility of the person named in the will, disposing of goods before letters testamentary. I see no reason for making the,responsibility of the person receiving the goods from her, greater than hers. In the present case, the court found that the value of the goods was $400. As that amount had already,been received on the sale, which was impeached, the plaintiff’s damages are nominal. The amount of the recovery should be reduced to six cents.

Freedman and O’Gorman, JJ., concurred.  