
    Chambers & Sadler v. - Davison, Ex'trix.. Aaron Briant v. Jas. Tomlinson, Ex'or.
    
    
      Before Mr. Justice Martin, at York — Fall Term, 1832.
    n89hwhkhpro-f tects’ executors t.ore, frommsu¡t£ “fteiS“'Xh of cutors de son tort — they may be sued immediately after inter-meddling. .
    These were actions against the defendants as executors de sontort. On the trial the defendants moved for non suits, on the ground that the actions had been commenced before the expiration of nine months the death of the supposed testators. The pre-sustained the motion, and the plaintiffs ~ •) o / j. appealed, A A
    Hill, for the motion.
    Williams & Witherspoon, contra.
   O’Neall J.

The reasoning of the judge below, in support of his view of the law, applicable to these cases, is very strong ; and were we at liberty to adopt a rule which we might think would be most proper in such cases, it might be conclusive with us. But unless the defendants are embraced within the provisions of the act of 178.9, they are liable to be sued the instant they .intermeddle with the goods of the deceased; and we have no right from convenience or from a desire to secure the other creditors from loss, to declare that they shall be exempt from suit for any time.

At common law, executors or administrators are liable to be sued so soon as they take upon themselves their representative character, and in such a case, a judgment recovered before the executor or administrator had notice of any other outstanding debts due by the deceased, might sweep away the whole estate. The act of 1789, gives them twelve months from probate of the will or grant of administration to, ascertain the debts due to, and from, the deceased, and exempts them from being sued, for nine months from his death. The only question is whether under this act, executors, de son tort, are entitled to the same exemption ? It provides, (P. L. 494,) that “ every executor or administrator, shall give three weeks notice by advertisement in the State Gazette, or at three different places of the most public resort in the Parish or County, for creditors to render an account of their demands, and they shall be allowed twelve months to ascertain the debts due to, and from, the deceased, to be computed from the probate of the will, or granting letters of administration; and creditors neglecting to give in a statement of their debts within the time aforesaid, the executors or administrators shall not be liable to make good the same ; nor shall any action be commenced against any executor or administrator for the recovery of the debts due. by the testator or intestate, until nine months after, such testator’s or intestate’s death.” Upon readings this clause of the act, no one can doubt that it was intended to apply to rightful executors alone ; for the provision allowing twelve months to ascertain the debts due to, and from, the deceased, to be computed from the probate of the will, or granting letters of administration, shews that rightful executors were alone contemplated by this part of the clause, and it must follow that none but rightful executors or administrators were intended to ^e embraced by another part of the same clause giving the exemption from suit. The whole clause must be construed together, and the evident sense and meanjng. Df the legislature thus collected, must prevail.

But independent of the construction which I have put on the clause of the act of 1789, it appears to me, that the plea or objection to the suits, cannot in another view be sustained. An executor, de son tort, is a mere trespasser, and is made liable for his wrongful intermeddling ; if he pleads ne unques executor, the fact of intermeddling is the only issue for the Court. If he admits the intermeddling, and therefore does not dispute the character which the law casts upon him, he is thereby liable tobe charged as a rightful executor, but he has no one of his privileges ; except that he may plead a plea in the nature of plene administmvit. This exception though, is not properly derivative from his character-, it is that the assets which have come to his hands, have been exhausted, and that therefore there is nothing for which he can now be subjected to a recovery; for he is only accountable to the extent of the assets which came to his bands.

If it is advisable to avoid the consequences which would result from recoveries against the defendants as executors, de son tort, in thus giving undue preferences to creditors, the defendants have the remedy in their own hands ; they can administer, and thus by relation make their acts as executors, de son tort, rightful, and entitle themselves to be protected from suit for nine months from the intestate’s death.

The motion to set aside the non suits is granted.  