
    Joel Tucker vs. Catharine Williams, Ex’rx.
    A donee, claiming by a deed, void as to existing creditors, and after the death of the donor taking possession of the property embraced in it, •will be liable to such creditors as an executor de son tort.
    
    BEFORE O’NEALL, J., AT COLUMBIA, SPRING TERM, 1838.
    This was a summary process against the defendant, as an executrix de son tort. The demand against M. Dinkins, the deceased, was proved. It appeared that at his death he was in possession of several slaves, various articles of personal property, besides a crop growing at the time of his death, estimated at from fifty to one hundred dollars. All this property was in the possession of the defendant at the death of Dinkins; she gathered the crop and consumed it. She lived with the deceased, and bad several children by him. In the beginning of the year in which be died, be conveyed to the defendant for life, remainder to her children, in consideration of love and affection, the slaves, horses, cows and calves, bogs, wagon, beds, and household furniture. The deceased stated, that be reserved for the payment of his debts, his land and debts owing to him. Some ineffectual attempts were made by the defendant to prove that the deceased owned land at the time of his death; and there was some evidence of loose accounts, purporting to be due the deceased, and which were seen in his house after his death. One of the negroes had been sold by the sheriff, as Dinkins’ property, after his death, under an execution against him, and there remained a balance of three hundred dollars in the sheriff’s band, after satisfying the execution. The horses were sold under a magistrate’s execution against Dinkins, after his death.
    The presiding judge was of opinion that the defendant was liable as executrix de son tort, on two grounds: 1st, having gathered and disposed of the crop; 2d, being in possession of property liable to the payment of the debts of the deceased. He, therefore, decreed for the plaintiff.
    
      The defendant moved to reverse this decision, and for a new trial, on the following grounds:
    1st. Because the deed under which she claimed should have been regarded by the Court as a Iona fide transfer of the property embraced in it, in the absence of any evidence of fraud.
    2d. Because the defendant had possession of the property, before the death of Dinkins, as she lived with him, and from the testimony offered, must be presumed to have exercised all the acts of ownership over it.
    3d. Because there was no proof of any property having gone into possession of the defendant, except the growing crop, and this was offered to any one who would administer on the estate of Dinkins.
    4th. Because in the deed from Dinkins to the defendant, provision was made to pay all his creditors, as several debts were owing to the estate, but there had been no administration.
    5th. Because there was other property pointed out by the deed, which the creditors could have administered upon — the deed was recorded and open to general inspection.
    6th. Because the decree was contrary to law and evidence.
    
      Black, for motion.
    
      Tradewell, contra.
   O’Neall, J.,

delivered the opinion of the Court.

That the defendant used the crop, which the deceased left at his death, is enough to fix her with the character of executrix de son tort, and fully justifies the circuit decree. For she had no pretence of title whatever to it. The deed to her and her children bears date the 18th of March: and after enumerating certain property, says, “finally all my goods and chattels which I am now in possession of, with the exception,” &e.; the crop was raised subsequent to the 18th March, it was then, probably, not even planted — it cannot, therefore, be regarded as any part of the goods and chattels of which Dinkins was in possession on the day of the date of the deed. But the defendant as a donee in possession was properly chargeable as executrix de son tort. The deed to her and her children purported on its face to be in consideration of natural love and affection: it is of the donor’s whole estate. For it appeared that the reservation mentioned in the deed, to pay Ms debts, was worthless. He had no land ; and the accounts alluded to were not shown to be of any value. Under such circumstances, it cannot be doubted that the deed is at law fraudulent and void, as against existing creditors. The deceased, at bis death, was in actual possession of the property. For after bis death, the very property now in dispute was by the defendant produced to Mr. Debruhl, who was about to administer, as Dinkins’ property. All the witnesses said he was at all times in possession of it. This, added to the fact of the voluntary character of the deed, made it covinous in every sense. The donee’s possession commencing subsequent to the intestate’s death, under a title void against the creditors, makes her chargeable as executrix de son tort. This will be made plain in this way. To charge her as such, it is only necessary to show her possession and use of the goods of the deceased. This is done prima facie, tbat be died in possession, and that she came to the possession after bis death. To answer and rebut this she must show a legal title to the property or possession; this cannot be done by the deed as against a creditor, for as to him it is void, and hence she is left as a wrongful possessor, and must be so charged. This view is fully sustained by Bethel vs. Stanhope, Cro. Eliz. 810. Hawes vs. Leader, Cro. Jac. 271. Edwards vs. Harben, 2 T. R. 587. If this view was not the true one, a creditor would at law be without remedy. For if be administered, be would be regarded as standing in the place of bis intestate, and then he could not dispute the donee’s title. For no matter bow fraudulent it might be against a creditor, yet it would bind the donor, and consequently his administrator, as was fully decided in Crosby vs. Shelton, Spring Term of the Court of Appeals, 1830; and Chappell vs. Brown, 1 Bail. 528. If be procured another to administer, and be suffered a recovery against him as administrator, the plaintiff’s execution could not be levied on this property, for the administrator could not recover it from the donee, and hence it would not be liable, as assets, in the administrator’s bands, to the execution. Anderson vs. Belcher, 1 Hill, 246.

The motion is dismissed.  