
    TOWNSEND against INGERSOLL.
    
      Supreme Court, Second Department;
    
    
      General Term, 1872.
    Statute oe Limitations.—Administration. '
    Payments, on a debt which is barred by the statute of limitations, made to the widow of the creditor dying intestate, though made before she had taken out letters of "administration,. will take the debt out of the statute, so as to enable her to maintain a suit on it as administratrix, upon taking out letters.*
    * As to payments where there are both a domestic and a foreign administration, compare Stone v. Scripture (4 Lans., 186).
    Appeal from a judgment.
    Ann W. Townsend, as administratrix of Thomas Townsend, deceased, sued Platt C. Ingersoll in the supreme court, in 1870, on a promissory note made by defendant to plaintiff ’ s intestate, in 1854.
    
      The defense was the statute of limitations, and that the note had been given as collateral security for the performance of an agreement which had been fulfilled.
    On the trial the referee found that Thomas Townsend died in 1868, and that in 1869 defendant paid to Ms widow, the plaintiff, certain sums on account of the note. That in 1870 the plaintiff took out letters of administration on her husband’s estate. He also found that the said note was not given by defendant to said Thomas Townsend as collateral security for any debt due by O. S. Gregory and defendant as copartners, or said Gregory to said Townsend, or as collateral security for the performance of any agreement upon the part of said Gregory.
    Plaintiff had judgment, and defendant appealed to the general term.
    
      Henry S. Bellows, for defendant, appellant;
    Cited 8 N. Y., 75; 9 Id., 362.
    
      Andrew Gilhooly, for plaintiff, respondent.
    I. Each of the new contracts having been made with the plaintiff, the widow of the intestate, who had possession of the note in suit, and was acting on behalf of the intestate’s estate, for its benefit, before letters granted, her letters of administration will relate back in order that the estate may not lose the benefit of the contract, and thus enable the plaintiff to sue upon it in her representative capacity (Bodger v. Arch, 10 Exch., 333; Williams on Exrs., 557, London ed., 1866). The distinction between the time of the vesting of the title of an executor and that of an administrator has become of no practical importance, for it is now settled beyond all question that the title of the administrator, after his appointment, vests from or relates back to the death of the intestate (3 Redf. on Wills, 128). Thus, the administrator may recover against a wrongdoer who has seized or converted the goods of the intestate, before letters granted, in an action of trover {Com. Dig. Administration, B., 10; 18 Vin. Abr., 285; Rockwell v. Saunders, 10 Barb., 473). Or, he may bring trespass, although this is an action founded on the right to possession. ‘ ‘ The relation fixes the possession from the beginning” (2 Roll. Abr., 554, tit. Trespass, pl. 2; Year Book, 36 Hen. VI., fol. 8; Tharpe v. Stallwood, 5 Man. & Gr., 760). The ancient reason for this relation was, that “ otherwise there would be no remedy ” (per Rolle, Ch. J., Long v. Hebb, Style, 341, A. D. 1652). The true principle, as deduced from the later cases, stands upon a broader and more symmetrical basis, viz: “The title of an administrator relates back to the death of the intestate, for the purpose of supporting the rights of the intestate, and of ratifying acts for the benefit of his estate, and giving a remedy where otherwise there would be none; but not to affect the rights of third persons to the estate vested intermediate the death and letters granted, or to take away those of the intestate, according to the maxim, 1 in fictione juris semper consista eguitas ’ ” (Leber v. Kauffelt, 5 Watts & S., 440, 5). In the last case cited, one who had paid a claim against an intestate’s estate, and afterwards took out letters of administration, was held entitled to sue in his representative capacity, on a bond given to the intestate to indemnify him against that claim. So where a note belonging to the estate of an intestate was paid to his widow who subsequently united with another in taking out letters of administration, and they then brought an action on the note in their representative capacity, the letters were held to relate back and render the payment to the widow a bar to the action (Priest v. Watkins, 2 Hill, 225). While there are certain cases in which the doctrine of relation has not been allowed, yet they will be found to be those in which the fiction is set up to divest some right of a third person to the estate which vested intermediate the death of the intestate and letters granted, as Gilb. Eq., 223, or to prejudice the right of the intestate; as Morgan v. Thomas, 8 Exch., 302; Murray v. East India Co., 5 Barn. & Al., 204; Pratt v. Swaine, 8 B. & C.; Steward v. Edmonds, 1 Wms. on Exrs., 4 ed., 834, note u; Parsons v. Mayesden, Freeman, 151). The New York decisions proceed on the doctrine of the earlier English cases, and of Williams v. Norwith (Style, 337), and hold that the grant of letters of administration relates back to the death of the intestate, and legalizes all intermediate acts of the administratrix ab initi ?, whether beneficial to the estate or otherwise, in the absence of fraud or collusion (Vroom v. Van Horne, 10 Paige, 549, 558; Rattoon v. Overacker, 8 Johns., 226).
    II. Even if the payments on account of the defendant’ s indebtedness to the intestate had been made by the defendant to a third person holding the note, and been received as such, the act of such third person could have been ratified by the plaintiff after letters granted, and the new promise, raised by the payments, been rendered available to the plaintiff as administratrix. The act would have been ratified by making a legal demand for the benefit of the contract thus made, by bringing suit (1 Am. Lead. Cas. Hare & W., notes 593); and where one means to act as agent for another, a subsequent ratification by the other is always equivalent to a prior command ; nor is it any objection that the intended principal was unknown at the time (Hull v. Pickersgill, 1 Brod. & Bing., 282; Foster v. Bates, 12 M. &. W., 226). So where one received sums of money from an intestate’s debtors, the subsequently appointed administratrix was held entitled to waive the tort, ratify the receipt of the money and recover the same in an action for money had and received to her use as administratrix 
      (Welchman v. Sturgis, 13 Q. B., 553). The administrator may ratify a contract made by procuration, or in any other form, before his appointment on behalf of the estate, so as to take the benefit of it, the same as if his authority had been of a date anterior (3 Redf. on Wills, 127).
    III. The provisions of the Revised Statutes (3 Rev. Stat., 81, § 60, and Id., 449, § 17) were not intended to work any alteration in the common law in respect to the doctrine of the relation of letters of administration (Priest v. Watkins, 3 Hill, 326). At common law if one who was neither executor nor administrator inter-meddled with the goods of the deceased, or did any act characteristic of the office of executor, he thereby made himself an executor of his own wrong or de son tort (Swinburne, pt. 4, § .23, pl. 1; Godolph, pt. 2, ch. 8, § 1; Wentworth, Off. Exrs., 14 ed., ch. 14, p. 320). When one so acted as to become executor de son tort, he thereby rendered himself liable not only to an action by the rightful executor or administrator, but also to be sued as executor by a creditor of the deceased or by a legatee, for an executor de son tort had all the liabilities though none of the privileges, that belong to the character of executor (Carmichael v. Carmichael, 1 Phill. E. C., 103, per Lord Cottenham.; Williams on Exrs., 217; 2 Blacks. Com., 495). He could not bring an action himself in the right of the 'deceased {Bro. Abr., tit. Administration, 8), so that even at- common law the plaintiff in this action could not be heard as executor de son tort. He was chargeable with the debts of the deceased, so far as assets came to his hands {Dyer, 166), and as against creditors in general was allowed all payments made to any other creditor (1 Ch. Ca., 33), himself excepted (5 Rep., 30; Moore, 527). By statute (2 Rev. L., p. 313, § 13, copied from 43 Eliz., ch. 8, 1 Chitty St., 3 ed., 1416), an executor of his own wrong was declared liable for all assets coming to Ms hands, with the privilege of retaining for debts due him from the intestate, and of being allowed for all proper payments made by him. 2 Rev. Stat., 81, § 60, deprived him of this statutory privilege. 2 Rev. Stat., 449, § 17, abolished the common law liability, and rendered him responsible as a wrongdoer to the lawful representative of the estate. The sole intention was manifestly to alter the theory of the liability of third persons to the rightful executor or administrator, for their wrongful acts, and to restrict this liability to such exeuctor or administrator, as trustee not only of the intestate, but also for creditors. It was not to deprive the rightful representative of his common law right to avail himself of acts done or contracts made on behalf of the estate for its benefit.
    
   By the Court. — Barnard, J.

— The payment made by defendant upon the note in question, to the plaintiff, before she had taken out letters of administration on the estate of her husband, was a good payment to her as administratrix, she subsequently having taken out letters. She had possession of the note, and the payment was for the benefit of the estate, and all her acts are confirmed for the benefit of the estate, from the time of the death of her husband by relation.

The evidence fully sustains the referee in Ms finding, that the note was not given by defendant to deceased, as collateral security for any debt due from O. S. Gregory and defendant, as partners, or for a debt due deceased from Gregory, or as collateral security for the performance of any agreement upon the part of said Gregory.

The judgment should be affirmed, with costs.' 
      
       Present, J. F. Barnard, P. J., Gilbert and Tappan, JJ.
     