Wilson's Adm'x v. Hudson

4 Del. 168

• Court: Superior Court of Delaware
• Decided: July 5, 1844
• Status: Published

Opinion

By the Court:

Booth, Chief Justice.

—Administration gives to the administrator the right of possession of the intestate’s goods. He has the same possession as the intestate. The law requires that on the decease of any person, administration should be granted, in order that the debts may be paid according to law. If any person without such administration, meddles with the property of the deceased, by any act of administration, such person will become an administrator of his own wrong, and liable as such. On the proof in this case, Rhoda Wilson and the defendant, by the irregular sale of the property of the deceased, which they conjointly made, became executors de son tort. This sale was illegal; an act of illegal administration; and did not carry the property to the defendant. It is said, because Rhoda Wilson afterwards administered, that this legalised the previous act. But it seems to be settled, that acts done by an administrator de son tort, will not bind the same person as rightful executor; any more than they would bind a third person who should become administrator. (2 Wheat. Selw. 790-1; 1 Adol. & Ellis. 49.) If it were otherwise it would be in the power of any creditor, combining with the widow, as in this case, though all by the act becoming administrators de son tort, to administer the goods .and defraud other creditors. The only safe rule is to hold that such sale does not change the property, and that the person afterwards becoming lawful administrator, can recover it.

Verdict for plaintiff.