
    CARUTHERS v. MOORE AND AIKEN.
    (S. C., Thomp. Cas., 86-90.)
    Nashville,
    December Term, 1851.
    3. EXECUTOR cle son tort. Question of law and fact.
    Whether a person is executor de son tort, is partly a question of law and partly of fact; the court determines what state o£ facts will fix the character, and the jury detrmine whether such facts exist in the given case. [A fraudulent grantee of personalty may be treated as the executor de son tort of the grantor after his death, and may be sued by the creditors as such. Russell v. Lanier, 4 Hay., 289. A suit may be revived against an executor de son tort as well as against a rightful one. Cobb v. Lanier, 4 I-Iay., 297, 298. A creditor collecting his debt from the widow before administration is liable as executor de son tort for the same to the rightful administrator. Mitchell v. Kirie, 3 Sneed, 319. An executor de son tort cannot sue for debts due the estate; and creditors of the estate cannot reach such debts through him, as he is liable for only what is in his hands. Gadsby v. Donelson, 30 Yer., 371; Winn v. Slaughter, 5 Ileis., 198. An executor de son tort cannot retain for his own debt as against another creditor suing- him as executor. Partee v. Caughran, 9 Yer., 460. The distributees cannot recover their distributive portions of an executor de son tort without an administrator on the estate of the intestate. Thurman v. Shelton, 30 Yer., 383; Brown v. Bibb, 2 Cold., 439. Actions against rightful and wrongful executors are always in the same form; they are both described in the pleadings as executor. Partee v. Caughran, 9 Yer., 460, 461; Cobb v. Lanier, 4 Hay., 297, 298.]
    2. SAME. Who is.
    If a person innocently receive the goods of a decedent from a third person who has wrong-fully intermeddled with them, he is not liable as executor cle son tort. — Secus, if he act in collusion with such third person.
    3. SAME. Of another State bringing- g-oods here is executor de son tort here.
    A party who has wrongfully intermeddled with the goods of a decedent in another state, and brings them into this state, is liable as executor de son tort in this state.
    4. SAME. Eoreig-n administrator bringing assets here is not executor de son tort here.
    Semble, that a foreign administrator collecting- assets whei e such administration was granted, and bringing- them into this state, is not liable to be sued here as executor de sou tort.
   Green, J.,

delivered tlie opinion of the court:

This is an action of assumpsit, brought by Moore & Aikin against Samuel Oaruthers, as executor of James M. Caruthers, deceased. The defendant pleaded, 1, ne unques executor; 2, fully administered; 3, non assumpsit.

The plaintiffs proved that James M. Caruthers had his domicile in Bolivar county, in the State of Mississippi, and died on the 12th of January, 1848, leaving his family and property there. Soon after his death, the defendant made some arrangement with the widow of said James M., and, before administration had been granted in Mississippi, took possession of several slaves belonging to said estate, and brought them to Tennessee, where he has had them ever since.

Upon these facts the court charged the jury, “that if the defendant took possession of the property of James M. Caruthers after his death, so as to make himself executor de son tort in the State of Mississippi, and afterwards brought said property to the State of Tennessee^ he would thereby become liable to the creditors of James M. Caruthers as executor de son tort, and that the plaintiffs might well maintain their action at law against him as such.” The jury found for plaintiffs, and the defendant appealed to this court.

1. It is said the court erred in leaving the question, whether the defendant was executor de son tort, to the jury. The question, whether the defendant was executor de son tort, was partly a question of law, and partly of fact. The court determines what state of facts will constitute a party executor of his own wrong, and the jury determines whether such facts exist in the given case. The portion of the charge which was excepted to is alone set out. The bill of exceptions informs us, that the other parts of the charge were unexcepted to, and we are to presume that the court explained to the jury what acts of a party would constitute him executor de son tort. Having given this explanation, he leaves it to the jury to determine, from the evidence, whether the defendant took possession of the property in Mississippi, so as to make him such executor there, and whether he brought the property to- Tennessee; and if he did so, the court said he would be executor de son tort in Tennessee. "We think the facts were properly left to the- jury, and we must presume the law was correctly stated in that part of the charge not excepted to-.

2. It is insisted, that Mrs. Caruthers, or Nicholson, took these negroes without authority, and disposed of them to the defendant, and that this should charge them as executors of their own wrong, and not the defendant. 1 Williams on Exr. 216; 1 Lom. Ex. 77.

This may be true; if the purchaser came to the possession of the goods innocently, but it would be otherwise if a case of collusion were made out. 1 Wms. Ex., 216; note e. In the case before us, it is clear from the proof, that the defendant knew the negroes belonged to- the estate of James M. Caruthers, and whatever wrongs Nicholson and Mrs. Caruthrs may have done in dealing with the property, it constitutes no excuse for him. He knew that they were intermeddling with the estate without authority, and he acted in collusion with them in such wrongful intermeddling, and he cannot protect himself by the fact that others concurred with him, and aided him in this wrong.

3. It is insisted, that as the defendant obtained possession of the property in Mississippi and brought it to Tennessee, he is not liable as executor de son tort here. It is assumed that a rightful administrator collecting assets in another state and bringing them here, is not liable to be sued here as executor of his own wrong; and, as a consequence of this proposition, it is insisted, that a wrong-doer obtaining possession of assets in a foreign state and bringing them here, cannot be chargeable here as executor de son tort, because he is liable to the foreign representative for the property so taken.

We concur with the counsel for the plaintiff in error, that a foreign administrator collecting assets belonging to his intestate, where such administration was granted, and bringing them here, is not liable to be sued here as. executor de son tort. Story’s Confl. of L., sec. 432. In such case the administrator has the rightful possession of the goods, and he is, for the purposes of his trust, owner of the goods. If a wrong-doer gets possession of the goods which have been in possession of the. administrator, and take them to a foreign state, the adminstrator may maintain a suit in his own name, in such foreign state, for the recovery of such goods. 1 Wins. Ex., 746; Story’s Oonfl. L. It would seem, therefore, that as his possession of goods collected in the jurisdiction where his administration was granted is rightful, he cannot be held liable as executor de son tort in another country to which he may take the goods.

But the question whether a party who has intermeddled with the goods of a decedent in a foreign state, and brings them here, is liable as executor de son tort, is a very different one from that we have considered above. In the case of an executor de son tort abroad, bringing the goods here, there is no ground upon which to protect him from liability as executor de son tort. He is a wrong-doer in getting the property in possession, and he continues a wrong-doer so long as he retains it, and may be made liable as executor of his own wrong, wherever he may be found with it. 5 Ala. B.., 34; 7 Cow. R., 54; 10 Yer., 383.

It may be very true, as is argued, that ¿he defendant might be held liable in Mississippi to the rightful administrator there, for this property, and that debts paid by him here, would not be allowed him by the courts of that state; and thus, being found in that state, and sued, he would be compelled to account twice for the same property. This will be his misfortune, should he go to Mississippi and subject himself to suit there; but it is no reason why he shall not be held to account here — as he has the property in possession by wrong in this state, and there are creditors here seeking satisfaction.

We think there is no error in the judgment, and order that it be affirmed.

Judgment affirmed.  