Page:Harvard Law Review Volume 32.djvu/351

315 PROBLEMS IN PROBATE AND ADMINISTRATION 315 PROBLEMS IN PROBATE AND ADMINISTRATION Executor de Son Tort WHENEVER one not appointed executor or administrator wrongfully intermeddled with the goods of the deceased he was known as an executor de son tort} It was commonly said that he had all of the duties but none of the rights of a real execu- tor.^ Such an intermeddhng would seem to be a tort for which the rightful executor or administrator could, if already appointed, sue,' or, if later appointed, take proceedings by relation back.* This simple procedure would seem to-day amply to protect the estate. But under the older law confusion, it was thought, might result if such were the sole remedies of the estate. The executor was con- ceived as taking title from the will, not from the probate court.^ He had a prima facie right to the surplus, if no residuary legatee were named.® Consequently the court had no discretion but to appoint him,^ unless indeed he were insane.^ And the probate judge could not require of him a bond, if he were insolvent or otherwise unsuitable.^ He could, therefore, bring a writ and his general acts bound the estate before probate, provided the will were at some later time proved, even though the executor him- self never obtained letters.^" Such being the case a wrongful inter- meddler by taking possession of the estate might well mislead strangers into thinking there was a will in which he was named executor. And this fact could not be verified, for, as a rightful executor could act without proving the will, those interested might well feel that there was no use in searching probate records to ^ I Williams, Executors, 10 ed., 183. ^ Carmichael v. Carmichael, 2 Phill. C. C. loi, 103 (1846). 6 Smith V. Milles, i T. R. 475, 480 (1786). ^ Rex V. Raines, i Ld. Raym. 361 (1698). « Evans v. Tyler, 2 Rob. (Eccl.) 128, 133, 134 (1849). ' Rex V. Raines, supra. " Brazier v. Hudson, 8 Sim. 67 (1836).
 * I WoERNER, Amer. Law Adm., 2 ed., § 193.
 * See infra, page 319.
 * I Williams, Executors, 10 ed., 1217.