Sawyer v. Thayer

Appleton, C. J.

An executor de son tort is one, who without rightful authority assumes the administration and disposition of the personal estate of a deceased person, when there is no rightful executor, or administration has not been granted. If there has been probate of the will, or administration has been granted, any stranger interfering with the estate of the deceased is a trespasser.

The declaration against an alleged executor is the same in form, whether the defendant be the rightful executor, or executor de son tort. Myrick v. Anderson, 68 E. C. L., 719. An executor de son tort is to be declared against as if he were the lawful executor, though the party died intestate. Brown v. Leavitt, 6 Foster, 495. The liability of such an executor is enforced against him as if he were rightful executor. Shaw v. Hallihan, 46 Vt. 389. The executor de son tort may He sued and treated as the rightful executor. Stockton v Wilson, 3 Penn. 129. Such has been the rule in this state. Allen v. Kimball, 15 Maine, 116 White v. Mann, 26 Maine, 361. Lee v. Chase, 58 Maine, 432.

The plaintiff may amend and declare against the defendant as if he were executor in fact. The declaration should be against him as if he were a lawful executor and not one by wrong.

By the agreement of parties the case is to stand for trial.

Barrows, Daneorth, Yirg-in, Peters and Symonds, JJ., con-, curred.