
    Alfriend & Coleman, plaintiffs in error, vs. John H. Daniel, executor de son tort, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Executor De Son Tort — Administrator of. — Under section 2406 of the Revised Code, if one chargeable as ex-ecutor de son tort die, his administrator, as such, is chargeable in the same manner and to the same extent as was his intestate, but the administrator does not himself become an executor de son tort by taking _ possession' of property found in possession of his intestate, at his death, even though that property was in the possession of the intestate as the executor de son tort of another deceased person.
    Executor de son tort. Before Judge Harreee. Terrell Superior Court. May Term, 1872.
    Alfriend & Coleman brought complaint against John H. Daniel, as executor in his own wrong upon the estate of Westley Daniel, deceased, on an account for medical services rendered to said Westley Daniel, amounting to $176 00, besides interest. The record fails to disclose any plea as filed by the defendant. *The evidence for the plaintiffs made the following case: The account was admitted to be correct as against Westley Daniel. Westley Daniel died about January 1st, 1870. His property, exceeding largely the debt sued, for, went into the possession and control of his widow. She died during the last of 1870 or first of 1871. The defendant took possession, as her administrator, of what property she left, but did not know whether any of said property ever belonged to Westley Daniel, deceased. Two mules, of the value of about $140 00, which the widow had at the time of her death, had been worked by Westley Daniel during his life, and were under his control at the time of his death. He treated them as if they belonged to him.
    Upon motion, the Court awarded a non-suit, and plaintiffs excepted, and now assign said ruling as error.
    West & Kimbrough, by V. B. Wooten, for plaintiffs in error. ,
    F. M. Harper, by Ceark & Goss, for defendant.
   McCay, Judge.

There is no pretence in this record that the defendant below ever dealt or interfered in any way with this property.as the property of the deceased person whose executor he is charged to be. He found the property among the effects of Mrs. Daniel,- and he took possession of it as hers, by virtue of his right and duty as her administrator. Nothing is better settled than that if one acquire the effects of an intestate from an executor de son tort, this does not make the present possessor an executor de son tort: Com. Dig. Adm’rs, chap. 2; 1 Williams on Executors, 216.

The theory of an executorship de son tort, is that if one meddles with the property of a dead man, it is a fair presumption that there is a will and that the meddler is executor. But if the holder have the possession under a claim of right, however that claim may, in fact, be defective, or only that it *be not fraudulent, he is not executor de son tort: 1 Esp., 335. The defendant here had a right, nay, it was his duty, as administrator, to take possession of this property. He found it among the effects of his intestate, and if he had failed to fake charge of it he would have been liable for any harm that might come to it.

An executor de son tort is in some sense, especially-under our law, a criminal. He is subject, under section 2406 of our Revised Code, to a penalty; and it would be outrageous to charge a man with a penalty for doing that which it -was his duty to do. As administrator, the defendant is liable for any malfeasance of his intestate, but this action is against him as an individual. We do not think his acts make him liable as executor de son tort, for the simple reason that in his taking possession he did not take it as the property of the deceased but as the property of Mrs. Daniel, whose legal representative he is. He stands as to it just as one would who had bought from her. The law casts the title on him as a purchaser. If the title be bad, the property may be recovered from him, but he has not by performing his simple duty as administrator made himself liable as executor de son tort.

There is nothing of sufficient definiteness in the testimony as to the money, to make out the case. It is meagre, indefinite, fixes no amount, nor are we able to say exactly what its significance is.

Judgment affirmed.  