
    Givens vs. Higgins, Ex’r. of Givens.
    The intermeddling necessary to render a person liable as executor of his own wrong, must be such as manifests a right to exercise a controul, or make disposition of the effects of the deceased.
    In some of the old cases the doctrine has been carried to an extraordinary extent.
    Where a person interfered with the property merely at the request of the widow, to remove it to another place, where she had changed her residence, and did some other acts of no great importance at her request, the Court held he was not liable as executor dc son tort.
    Persons acting as agents for the widow, as an overseer employed by her, or a carrier to take the crop to market, or a factor to sell it,&c. not knowing in what character she was acting, would not be liable.
    This was an action to recover a demand which the Plaintiff had against Robert Givens, deceased, from the defendant as Executor de son tort. The debt was proved. It was then proved that immediately after the death of Givens, the defendant employed a wagoner, and removed the effects about five miles. That he paid a debt against Givens with some of- the property; That he was twice seen riding ahorse which belonged to Givens, and had occasionally ploughed the horse. The defendant then proved by the widow that she was sick when her husband died, and that she had requested the defendant to move her and the property to her mother’s, and that all the other acts were performed by defendant at her request. The Court held that the acts of intermeddling as proved, were not sufficient to constitute the defendant executor de son tort, and that they being done at the request of the widow, was a sufficient justification and explanation of his conduct. The Jury found a verdict for the defendant, and the plaintiff now moved for a new trial.
    Hill, for the motion.
    
    
      The acts of intermeddling proved were sufficient to charge the defendant as executor in his own wrong, and his acting at the request and as the agent of the widow, who had no authority, was not a justification of his conduct.
    Williams, contra.
   Curta, per

Nott, J.

There is no doubt, that any in-termeddling with the estate of a deceased person, such as collecting money, paying debt;-, with the funds of the estate, or making any other disposition of any part of the property, will make a person an executor in his own wrong. In some of the old cases the doctrine has been carried to an extravagant, and I may say, even to a ridiculous extent. A person has been held liable as executor in his own wrong, for taking a dog, and a wife for milking the cow of her deceased husband. Genet vs. Carpenter, 2 Dyer, 166, in note. But such a principle certainly would not be sustained at this day.

The intermeddling must be such as to manifest a right to exercise a controul or make disposition of the effects of the deceased. Acting merely as a servant will not make a person so liable, per Buluer, J. in Padget, and another vs. Priest and Porter, 2 D. & E. 97; Nor where one is made coadjutor or supervisor, 2 Dyer 166, Stokes vs. Porter. Thus for instance, if a widow should employ an overseer to superintend the plantation of her husband, a wagoner or boatman to carry the crop to market, a factor to sell it, and a clerk to collect and to pay away money under her directions, these several persons not knowing in what character she was acting, would be-considered merely as her agents, and not as exercising such control over the funds of the estate as to make themselves liable. And such appears to have been the character in which this defendant acted. He acted merely as the agent of the widow. He did not pretend to have any controul over the property, and knew not probably to whom it belonged. I concur, therefore, with the presi ding Judge, and am of opinion, that the motion ought tobe refused. New trial refused.  