DE LA GUERRA et al., Executors of JOSE DE LA GUERRA, deceased, v. PACKARD, Administrator, etc. of CESARIO LATAILLADE, deceased, 17 Cal. 182

Cope, J. delivered the opinion of the Court Field, C. J. concurring. There is nothing in this case, so far as it is governed by the rules of the common law, to distinguish it from the ordinary case of an executor de son tort. Such an executor is regarded by the common law as an intermeddler and a wrong-doer. He has no rights, and payments made by him over and above the value of the assets which come into his hands are entirely voluntary. He cannot by such payments place himself in the position of a creditor of the estate.

We are not called upon to determine how far the common law rules upon this subject have been changed by the provisions of our statute. There is no doubt that at common law the acts of an executor de son tort are for some purposes regarded as valid, but it is a familiar principle that no benefit can be derived from such acts by the executor himself. “ The law,” says the Supreme Court of North Carolina, “ holds such an executor to many liabilities, but gives him no action.” (Francis v.

Welch, 11 Ired. 215.) He cannot retain for a debt of his own, and if the estate be insolvent, it is no answer to an action to recover the assets that he has paid debts equal to or exceeding their value. In Ayre v. Ayre (cases in Chan. 33) it was said that such an executor should be allowed all payments not made to himself, but this language must be understood as referring to the facts of that case. The suit was brought by a widow to recover the amount of certain debts due from the estate of her husband.

She had possessed herself of the estate and paid these debts, but the estate had been taken out of her hands, and no allowance had been made for such payments. It is evident that nothing more was intended than to lay down a rule as applicable to these facts; and the case is far from maintaining the proposition that an executor de son tort may charge the estate beyond the assets in his possession. A similar question was presented in Hardy v. Thomas (23 Miss. 544). In that case the executor de son tort had paid several debts, but had not parted with the assets.

The suit was by the rightful executor for their recovery, and the Court held that under a statute of that State the executor de son tort could make no valid disposition of them, and that the plaintiff was therefore entitled to recover. Upon the subject of the right of the defendant to a claim upon the estate for the amount of these debts, the Court declared the law to be that he was entitled to satisfaction ratably with other creditors.

But the case shows that the reference upon this point was only to such debts as were paid upon the faith of the assets which came into his hands, and there is no reason to suppose that if he had been permitted to retain these assets, any claim on his part would have been regarded as valid. This case, and the case of Ayre v. Ayre, are the only cases we have been able to find in which the right of an executor de son tort to maintain an action against the estate which he professes to represent is recognized.

As we understand these cases, the doctrine enunciated is no doubt correct, but it is the part of policy to keep the rule extremely strict, and prevent, as far as possible, all unlawful and improper intermeddling with the estates of deceased persons. This has always been the policy of the common law, and we are not disposed at this late day to establish a rule which could only be regarded as a departure from the uniform course of English and American adjudications upon this subject.

Our conclusion is, that by the rules of the common law, the plaintiffs are not entitled to recover, and we are satisfied that whatever may be their rights under the laws and jurisprudence of Mexico, they have mistaken their remedy. Under the Mexican system their testator stood in the position of a voluntary agent, and represented the persons of the heirs, and not the estate. The heirs succeeded immediately to the estate, and became personally responsible for the debts of the deceased. The disbursements in payment of these debts were on behalf of the heirs and in discharge of their personal liability.

If any claim exist for the amount of these disbursements, it is against the heirs and not against the estate. Indeed, in our view of the rights and liabilities of the heirs under the Mexican system, we do not see upon what principle the estate was subjected to administration under our statute, and we are inclined to the opinion that whatever has been done in this respect must be regarded as unauthorized and illegal. Judgment reversed and cause remanded, with instructions to the Court below to dismiss the action.