Pinkham v. Grant , 78 Me. 158 ( 1886 )

Libbey, J.

The exceptions raise the question of the liability of the trustee. The facts upon which the liability depends are, in substance, as follows: Ira Grant died, testate, July 27, 1882. The trustee was named as executor in the will. The testator gave to the principal defendant a legacy of one thousand dollars. On the fourth of September, 1882, the trustee, as executor, paid to the principal defendant nine hundred and twelve dollars in part payment of the legacy, taking his receipt therefor. The will was probated on the fifth of September, 1882, and on that day the trustee was duly appointed and qualified as executor. Afterwards, on the same day, this action was commenced and the writ served on the trustee. By the settlement of the estate in probate, it appears that it is insufficient to pay all legacies in full, and that the nine hundred and twelve dollars was all that the defendant was entitled to under the will.

It is claimed by the learned counsel for the plaintiff that when the payment was made by the trustee, he had not been appointed executor by the probate court, and had no authority to make the payment; that he made it in his own wrong, and therefore the legacy was due from the estate of the testator when the writ was served.

We think this is not the law. True, when the payment was made the trustee had no legal right to use the funds of the estate for that purpose; but when one named as executor in a will deals with the assets of the estate before his appointment and qualification, without authority, his appointment and qualification date back by construction to the death of his testator and validate his acts, and he can no longer be held as executor de son tort. At the time of the service there was nothing due the legatee. Shillaber v. Wyman, 15 Mass. 322; Andrew v. Gallison, 15 Mass. 325; Rand v. Hubbard, 4 Met. 252; Spring v. Parkman, 12 Maine, 127; Alvord v. Mars, 12 Allen, 603.

It is further claimed for the plaintiff, that, as matter of fact, the payment was not made till after the service of the writ, but we think the case does not warrant such a finding.

Exceptions overruled.

Peters, C. J., Walton, Daneorth, Virgin and Haskell, JJ., concurred.