#### WILLIAM MORRISON vs. SAM’L. P. SMITH. EX’R. &c.

A fraudulent donee who has become liable to creditors, as executor de son tort, of his donor, cannot discharge himself by delivery of the thing given, to one who afterwards obtains letters of administration.

This was an action of debt commenced by warrant before a justice of the peace, and afterwards carried by appeal to the Superior Court of Law of Wilkes, where, at Fall Term, 1S52, it was tried before his Honor Judge Caldwell. The pleas were general issue — ne unques executor — fully administered ; and the plaintiff replied that the defendant was executor deson tort. Upon the trial the facts were as follows : — The bond sued on was executed by Abner Webber, deceased, to the firm of Falls & Morrison, of which the plaintiff was surviving partner. Webber died 15th November, 1847, and it appeared that the defendant took possession, some two or three months thereafter, of divers articles of personal property, amounting in value to more than the debt sued on, and he then removed from the county of Iredell to the county of Wilkes, claiming said property as his own. The defendant then proved that Amelia Webber, who was his daughter, and the widow of the deceased, ivas, at February Term, 1848, (the first term after his death,) appointed administratrix of *400the said deceased, and that, he had delivered to her (before her appointment, as administratrix) all the said property, with the exception of some hogs and tobacco, which were sold by him, after administration granted, as the agent of the administratrix, and the proceeds thereof paid to her. It was further in evidence that the said property was delivered to the administratrix as the defendant’s own, and by her accepted as a gift from him, and that she had since that time held it, and still held it as her own. The plaintiff then offered in evidence a deed, executed 21st September, 1847, by the deceased to the defendant, for the property in question, and proved that the said deed was fraudulent as to creditors ; and that the defendant took the said property by virtue of said deed, and after holding it a few days, delivered it as above stated to the said Amelia, who afterwards was appointed administratrix.

The defendant’s counsel insisted that, notwithstanding the said fraudulent deed, and the acceptance of the property by the ad-ministratrix under the circumstances and at the time stated, the same still enured to her as administratrix, and the defendant was not liable to this action ; his Honor was asked so to instruct the jury. But his Honor refused to give the instruction, and charged the jury that if they believed the evidence, the delivery of the property by the defendant to his daughter did not purge the wrong, nor enure to her as administratrix ; and that the plaintiff was entitled to a verdict. Whereupon the jury returned a verdict for the plaintiff, and judgment having been, rendered thereon, the defendant appealed.

Boyden, for the defendant.

Mitchell, for the plaintiff.

Pearson, J.

The deed from Webber to the defendant was good between the parties, and against the administratrix of Web-ber. So she was not liable to creditors in regard to property conveyed by the deed, and ex necessitate, a creditor had a right to 'sue the donee and charge him as executor de son tort-.

The fact that the defendant delivered the property to his daughter, and that she subsequently was appointed the administratrix of her husband, the fraudulent donor, has no more effect upon the *401rights of creditors, than if he had delivered the property to any other third person ; because the daughter was not chargeable with the value of the property as assets, by reason of the deed executed by her intestate. It may be that the receipt of the property from her father made her also liable to the action of the creditor, but there is no ground upon which it could defeat aright of action against the father, which had previously accrued.

Per Curiam. Judgment affirmed.