
    Hopkins vs Towns, &c.
    Debt. Case 28.
    
      October 4.
    (The case stated.
    One who h’ótcls property under color of afraudulent gift or sale from a p’erson who dies, may be sued as executor de son tort, wherever found with the property in possession.
    Appeal from the Henderson Circuit.
    
      Executor de son tort.
    
   Judge Marshall

delivered the opinion of the Court.

The oilly question of law presented for our decision in! this case, arises on the following facts which were found by the jury. In 182G, Mary B. Hopkins purchased, under execution, sundry slaves, the property of Samuel G. Hopkins, who being then in this State with said slaves,was permitted afterwards to take them to Missouri, where he was domiciled, and where the slaves remained in his possession till his death. .After which Mary B. Hopkins,claiming the slaves in virtue of her purchase, which was found by the jury to have been made to hinder and delay creditors, sent the evidences of her claim to Missouri, and by her agent, took them there and had them brought to this State, where she still .remains in possession of them; In this- state of things, an action was brought by a creditor of S. G. Hopkins, deceased, against her as-executrix, and she having pleaded that she was not executrix,' the question is, whether, on- the facts above stated, she is liable as executrix de son tort.

It does not appear that S. G. Hopkins had any property .in this State at the time of .bis death, or that there is any lawful executor or administrator in Kentucky, or even in Missouri. And it may, perhaps, be true, that no Court in Kentucky has, at any time, had authority to admit or qualify either an executor or administrator. But as it is well settled that a person who, under color of a fraudulent gift or sale from the decedent, takes possession of property left in his possession at his death, becomes thereby executor de son tort, there can be no doubt that the defendant, by taking possession of the slaves in question, in Missouri, subjected herself to be charged in that character, if found in Missouri; and we suppose she is liable, in that character to the extent of the assets-thus wrongfully seized, wherever she may be found with the property in possession.

Talcing-possession by agent in another Slate, does not change the case if the property be held here.

Though there may be a duly-qualified executor or administrator in another State, yet ifproperty of a decedentbewrongfully held here by one, such an one is liable here ns executor de son tort to creditors.

The fact that she took the slaves in Missouri, not in person but by her agent, makes No difference. She is liable precisely to the same extent as if she had gone to Missouri herself, and brought the slaves to Kentucky.

' If it were admitted that a regularly qualified executor in Missouri, would be liable as such, only to the tribunals of Missouri, it wmuld not necessarily follow that such person, if found in Kentucky in possession of property of the decedent, acquired in Missouri as executor, might not be held liable in the tribunals of this State, not as a fiduciary under the laws of Missouri, but as an executor de son tort; for the property being actually within the jurisdiction of this’State, and being in possession of a person having no lawful right to it, unless as representative of the deceased owner, there would seem to be a defect of remedy, if the possessor could not be charged in Kentucky, in the character of representative. But the present case is still stronger. The defendant holds by her own wrongful act alone. She pretends to no authori-. ty under the laws of Missouri, in virtue of which she might claim to be amenable to those laws only: but she claims by an act which was a wrong to the creditors of the deceased, wherever they might be, and for which she should, therefore, be liable to them wherever she may be found with the property. So far -from either purging the wrong or discharging the liability by bringing the slaves to Kentucky, this is, in fa'ct, a continuation of the wrong, and therefore, a continuation of the .liability. The slaves might be subject, by the law's of Missouri, so far as relates to the rules of distribution and descent, if there were any persons entitled, as heirs, to the property. But the heirs are bound by the sale, and the slaves being, found in Kentucky they must be subject to her law's and tribunals, so far as the rights of creditors of the deceased are concerned. The creditors have, in fact, no remedy in Missouri. There is no bond there, and so far as ap* pears, neither property nor heirs, nor personal representatives of the decedent there. The heirs are here.without any thing by descent. The remedy for all debts must necessarily be had in this State, and against the defendant, who, so far as creditors are concerned, is wrongfully possessed of the decedent’s .property. We think the simplest and most appropriate, if not the only appropriate remedy for them, is to charge her as executrix de son tort.

Morehead tiy Reed fot appellant:

Owsley fy Goodloe for appellees.

Wherefore, the judgment is affirmed.  