
    Administrator of T. Howell vs. Samuel Smith.
    Talcing possession of assets, and paying tbe debts of the deceased out of them, will make a person-cxccotor rfe son tort And upon the iidministvator bringing' an action for such assets, such disbursements will not be allowed in discount,
    Georgetown, April Term, 1823, — Tried before Mr. Justice Gantt.
    
    THIS was an action for money had and received. It was proved that the defendant on the death of the intestate possessed himself of two hundred and fifty dollars, money belonging to the estate of the deceased. In the defence made to this action, it was shewn that a paper was found in the trunk of the deceased, which purported to be a will made by the deceased, wherein the defendant was nominated an exeGutor. A question was made on the -validity of this paper as a will, which terminated in a decision of the Constitutional Court that it was no will. Before the decision thus made, the defendant disbursed certain moneys on account of the estate as executor, and it was insisted in his defence that the sums thus paid away should be discounted from the sum which had been received by the defendant, belonging to the estate. The court was of opinion that the defendant was not legally entitled to the discount set up, and so instructed the jury, Who found accordingly. The motion made for a new trial rested on the following grounds :
    1st. That the defendant acting as agent, for the estate, was authorized to pay for'such services as were necessary for the benefit and preservation of the estate, and that ho should have been allowed to show that such was the character of the services mentioned in the discount.
    2nd. That in this action, the defendant was entitled to all the equitable rights of the persons whom he had paid, and should have been allowed to establish their claim.
    3rd. That the defendant should have been allowed the siims paid tp ppungel for endeavouring to establish wha]f was evidently the will of Mrs. Howell, though not technically executed.
    4th. That the verdict of the jury was not warranted by the evidence, as there was no evidence that the defendant received more than two hundred and fifty dollars, and it was conceded he had paid to the plaintiff, ninety-three dollars and seven cents.
   Mr. Justice Gantt

delivered the opinion of the court:

The paper, which purported to be the will of Mrs. Howell, having been adjudged not to be her will, the defendant could not justify under it an interference with the assets belonging to the estate from his being nominated therein an executor. Among the various acts which will constitute an executor of his own wrong, the taking possession of the assets, and paying the deceased’s mortgages or other debts out of them, will make one such, (See Toller, 17,) and he is liable to the action of the lawful administrator, who may recover against him to the amount of the assets which have been converted previous to granting administration, (Toller, 369.^1 It follows that the defendant was legally called upon to account to the administrator for the two hundred and fifty dollars belonging to the estate, which he'had possessed himself of, nor could he legally set up by way of defence, the disbursements contended for. The defendant having paid into the-hands of the administrator ninety-three dollars and seven cents before action brought, the verdict of the jury for one hundred and fifty-six dollars, ninety-three cents appears to have been correet, being the balance of the $250 which the-defendant had received. It is due to the defendant to state my full persuasion that his motives in taking,upon himself to act in behalf of the estate were honorable, but it would be productive of infinite confusion in the settlement, of the estates of deceased persons, if the acts of unauthorized agents were to be recognized as valid ; more especially in {he Courts of Common Pleas, who have no original jurisdiction in the settlement of estates. The motion must fail.

jOunkin, for the motion.

Carr fy Taylor, contra.

Justices Richardson, Huger, Johnson and Nott, concurred.  