Giles v. Churchill

5 N.H. 337

• Court: Superior Court of New Hampshire
• Decided: January 15, 1831
• Status: Published

Opinion

By the Court.

We are inclined to think that an executor, de son tort, cannot by a sale of the goods of the deceased give any title to the purchaser against a rightful executor or administrator. 2 Starkie’s Ev. 551 ; 5 Coke, 31 ; Lovelass, 50 ; Yelverton, 138, note, 3 ; 4 Burn’s Ec. Law, 190; 1 Yentris, 349; 5 B. & A. 744, Woolley v. Clark; Wentworth, 181 ; Com. Dig. Administrator, C 3.

But in this case John B. Giles undertook to settle the estate of the deceased by the request of this very plaintiff. Whatever John B. Giles did, then, may be considered as done at the request, and with the assent of the plaintiff; and the question is, whether he can now maintain trover against this defendant after having thus assented to the sale ?

We are of opinion that he cannot. We think the sale stands'on the same ground as if it had been made by the plaintiff himself, in which case, it is clear he could not maintain the action. In the case of Kenrick v. Burges, Moor, 126, it was held, that if one as executor de son tort, sell goods and afterwards take administration, the sale is good by relation. And in Whitehall v. Squire, Carthew, 103 ; 1 Salkeld, 295, it was held by two judges, against the opinion of Holt, that where one bought goods of an executor, de son tort, and afterwards took administration, he could not maintain trover against the executor de son tort, to whose act he had assented.

If, in this case, the estate of the intestate shall turn out to be insolvent, perhaps the plaintiff may recover of the defendant what the latter may have received beyond his just share of the estate. 17 Mass. Rep. 380 ; 3 Pick. 261.

Judgment on the verdict.