#### McIntire’s Executors v. Carson, Executor.

From Wilkes.

The act of 1715, Ch. 10, is intended for the protection of dead men’s estates, and not for the personal benefit of the executor ; an executor de son tort may, therefore, plead it, as well as a rightful executor. The true distinction is, that whai will protect the assets, may be used by any executor ; but those rights which the law allows to the executor on account of his office, can be claimed by a rightful executor only.

This was an action brought against the Defendant, as executor of one James McDowell, to which Defendant pleaded ne unque" executor, fully administered, act of 1789, and the act of 1713 re-enacted in 1799. To the pica of ne imanes executor, there was a replication that the Defendant, since the death of James McDowell, had acted as executor of the said James, by administering divers goods and chattels which belonged to the estate of said James.

This suit was commenced July 30th, 1818, and at September term, 1829, the case, by rule of Court, was referred to arbitrators, no award having been made, the rule was set aside, and the cause set for trial, it did not appear,on the trial, that the. Plaintiffs knew at what time Defendant took the property into his possession. The Jury found that Defendant was executor dc son tort of James McDowell, that he had assets sufficient to satisfy Plaintiffs demand^ and further, they found that the act of 1715, was a bar to Plaintiffs secovery.

Plaintiffs moved for a new trial, on three grounds, 1st, that an executor de son tort is not within the 'protcction of the act of 1715? 2dly, that it did not appear from the evidence, that the Plaintiff knew of the Defendant’s having possession of the negroes, for more than seven years next before he brought suit? 3dly, that the *545ívftvínce to r. )!■:. the Flaiuliit's claim out of iho !>'-.ís.¡*;iün!! of the act of if! 3.

l.curt held, that ius executor íu? sun tort was within the prdedion'of ¿Le act oí* If 1.1, and that the time began to ?«« i« favour oí the Defendant, from the time ho ««ok pi'^’occioi! of the ¡.rojX'vly, and openly and pub» lickJy er-'i l-í*<! ¡lucí ¿lie refeivneo to arbitra torn did not take ¡Le rose out of <h« act of IT 15, and a new tria? I¡a:V!;y boca 'irafuMid, and judgment remíc-ed, Plaintiff uop.-.ilrb

Gaston, for appellant.

An ejecutor de son fori never comes v,itjiiii iie protection of u»e act of 5716. This v-ilí rppeor from an eriiimkr-dio;} of the set itself, from the light ia which, at cuurüv.íi law, ouch an executor \>«:s viewed, ami from principle". of convenience.

The eci is without preamble 5 Sni & am its title, it ftp-pears thai. iio object v.its to prescribe a mode of proving wills, of* gra.nU:!;; «ftsríúiidreiiosvu and to prevent frauds in dreecrwi pok'soif’j estates, ard in Us 4th section, enacts, that no person shall nr «‘dome to meddle with the estate of ose seve-aerd, unless be be appointed pursuant to ibis ad. The act ito-’s nor say that sails shall be. b\)it:-;k' iHisi escrutare wUh’u seven yearn, but declares tl- it ,.3 • I‘tint, s’mII be minis after ike expiration of that time. Tk« kypdduro an id save Iic.cS in contemplation, in this pari of the Lev, rightful executors only 4 for why speak of «•«/.■?« y c vJiim, o«a!nst a:i executor de son tort, when the very pursue iiícdf, iieccsuurily implies the cxist-oice of nomo y-iucu iMwfaüy authorised to demand, and seine person :.-.wfüí!y &r. thurified to scit'o, some ¡jer-gón oa whom ío icriko a ohJoi. The legislature obviously iiuenoed to pro vide Ui.it wxae Individual should always be lcg:?’!j coiidiusC'd t« ;:cb1e dead men’s es-te oes, and bad in roíiiei>íp!aíiw;«, v> roegri!! executors only to forbb! ikeir existence. ]¡.si íbe rci.e before the Court, there was fop seven years, ¡10 inftft ktaa! a&auist *546wlioin to mate claim, we have therefore been guilty o? no laches $ it is no answer to tell us there was an executor de son tort whom we might have sued. — (Bac. Ab. “Limitation of actions,” E. 5.) Tins Court has already decided, that when for seven years there was no person authorised to mate claim on behalf of a deceased creditor, the lawful representative when appointed, should no! thereby be barred ; the reason will justify the conclusion which 1 have drawn as applied to the deceased debtor, against whose- estate a claim exists.

How was an executor de son tort viewed at common law: Jle. is one who is held liable to all the obligations, but entitled to neme of the privileges of a rightful executor, for he is a mere officious intermeddier. lie is not regarded as regularly an executor (Toller 11, 17,) he has no interest in the estate, and is. not charged’with its protection, (Ibid. 190.) In statutes, he is not included under the word ,s executors.” — (¿Andrews 250.) He cannot plead a set off (Ibid.) neither can he retain.— (Ibid. 328.) But it may he asked, how is a Court to know that he is executor de son tort, where he, does not, as In this case, plead ne unqnes executor ? I answer, that although he is sued as executor, if he claims any thing as executor, pleads for instance, a retainer, it is no departure for Plaintiff to reply, that ho is executor de son tort. Vaughan v. Brown — (Andrews 328.) ’ The act of 1715, was. intended to protect the estate in the hands of the legal holder, it never was meant, to operate for the personal protection of a wrong-doer; the estate can never be. injured by a judgment against an executor de son tort; if he admits himself executor, and judgment be signed against him, a sd. fa. against the heirs would not lie, for be nacer was in contemplation of law, the representative of the estate ; and if be denies, as here, judgment will be de bonis propriis. — (Toller 369.)

But it may be asked, will not distributees be obliged to allow executor de son tort, 'a recovery made against *547him, though after seven years ? To this. 1 answer, that the distributees are themselves guilty of laches, if not of , . fraud, in not bringing him earlier to account, or having; a lawful administrator appointed j and further, the recovery should not protect au executor de son tori, unless shewn to be for a debt that ought to be paid by the estate of the deceased, in which case, equity would undoubtedly relieve him. — (3 Bac. Jib. Jim. Ed. 25.) On the ground of convenience, if a construction different from tiiat which I have given the act prevails, the statute is converted into a machine to promote frauds, every debtor will he endeavoring to get possession of the property, keep it out of view for seven years, and then come forward with a discharge in full, in the form of an act of assembly.

Seawell and Wilson, contra,

said that the act of 17! 5, was not intended for the benefit of the executor, either rightful or wrongful, but for the protection of the estate. The principle, that a wrongful executor shall not have the privileges of a lawful representative, applies only to the personal convenience, or privilege, of the executor. The Plaintiff, by his suit, has chosen to consider him as the legal representative, and cannot, now, deny him the privileges attached to the character with which' he, himself, has invested him. If an executor de son tort, he sued by the rightful representative, he shall be allowed all the assets which he has administered.. The case of Webster v. Webster — (10 Ves. 93,) was referred to.

Gaston in reply.

An executor, of his own wrong, may, in general, plead a matter to protect the estate, but the enquiry here is, does the act of 1715, which alone authorises this plea, permit it, except in case of a legally constituted representative ? AU that was decided in Webster v. Webster, is, that where the rightful, executor meddles; VHh the property, before probate, jhe may, if *548sued, plead (he. statute, because, by interfering, be has l>ia!'e election, and is right ful executor to all intents awl pu' jjoscs. It decides that the statute runs only from til’* time of the acceptance of the executorship, no i»at- <! r how that acceptance is manifested, whether by probate, or taking the goods into possession.

As to the objection, that by bringing suit, wc are es-topped to deny that Defendant is rightful executor $ by his pleading, lie, here, denies it himself; but, if he did not, the objection, if good, would permit an executor, de son tort, to retain and plead it, which he cannot do.

Hall, Judge.

The. question, in this case, is, whether an executor, de'son tort, can plead the statute of limitation, created by the act of 1715, eh. to. if this were a plea that tended to the personal benefit of the executor de son tort, he ought not to be permitted to avail himself of it, but it is a plea, pleaded for the benefit of the estate; the rights of the Defendant are not, in any respect, thereby afferled, and creditors have a right to bring actions against him ; and I see no reason way they should succeed in making out their claims against him, with more facility than they could do against the rightful executor ; certainly other creditors, and the next of kin-would be thereby injured. If a rightful executor can plead such a {.-lea, for the purpose of protecting the estate, I think the Defendant may do it in the present case. The Plaintiff will not be in a worse situation than if ho ban sued a lawful representative of (lie estate. No hardship or inconvenience is pointed out in this case, that might, not equally apply to the other. — (1 Wentw. office of Ex’rs. 177 — 3 Term 588 — 10 Ves. 93 — Andrews Rep. 328 — 2 Str. 1106.)

Henderson, Judge.

The act of 1715, commonly called the seven years bar, was intended for the benefit *549a«;l protection of the estates of de-ad mc'5¡; not for the protection of those who have the management of them. or way represent the dead men ; and the Plain'd if Istn big- chosen to consider the Fk-fiesdmit as ami thrown oil him the defence of the- assets, sha'I not oust the estate of any defence to which it woüd be, entitle*’ in the hands of a rig-bifid executor, for ii would he very suarge that a demand should be, enforced against tin; estafe, v. hen ike estate, is defended by one person, and mot when defended by another. I think the distinction is, that what will protect the assets ¡nay he used in. citiier j those rigid s which the law allows to the executor, on account of his odice, can be claimed by ¡be rightful executor only, as the right of retaining compensation for his trouble and others $ i" there lie any of the, tike hind, possibly [lie, right of offering a set-off, may fee one exception from Ihe above rule, this can be denied im the wrongful executor, only on technical reasons, to wit; that as he cannot sustain suits for want of loiters teda-menta ry, lie cannot set off against a demand nsm?* the assets $ and, as the declared object of lhe statutes &%w« lug a, set off, is to prevent u multiplicity of suits, it can only be used where it can have, that effect. The soundness of this reasoning it wiil be sufficient to exam; •<;, when the ease occurs. It may be taken cither way, whii* out affecting the present question. Etilo for a new trial discharged.

Taylor, Chief Justice, dissented.