WOOLFORK'S ADM'R vs. SULLIVAN, 23 Ala. 548

PHELAN, J. Where an executor de son tort has sold at public sale the personal property of a testator, and an administrator is afterwards appointed, what right or interest in respect to such property vests in such administrator 1 and what are his powers and duties in reference thereto by the laws of Alabama? These are the questions presented for our decision by the case at bar.

The sale of the personal chattels of a testator by one who usurps the office of executor whether wilfully or ignorantly, and who is styled executor de son tort, is unlawful, whether it be public or private, and conveys to the purchaser no title. That is clear. Hence the sale by Mrs. Woolfork conveyed no title to the slaves in controversy, and was a conversion of the property of the estate, in her and her vendee. Still it conveyed what she had, the possession.

Being in possession as widow, (for she was widow and sole legatee,) and holding herself out as executrix, she advertised and sold this property as such at public sale, and McKinney, defendant’s vendor, became the purchaser, in good faith and for a full consideration. There cannot be any doubt that he acquired thereby at least a possession and a right of possession, which he could maintain against all the world except the administrator of Woolfork.

He is surely in no worse condition than a vendee from an administrator by a private sale, which the statute expressly forbids, and which our courts have repeatedly pronounced to be absolutely void.— Clay’s Digest 223 § § 13,14 ; 4 Ala. 442. And yet such a vendee will be protected in his possession against every one but the administrator de bonis non. Even the administrator himself who made the sale cannot reclaim the possession, for he is estopped by his acts from the right to sue, (Pistole v.

Street, 5 Por. 64,) and an execution against the goods and chattels of the testator cannot be levied on the property so as to take it: — 4 Ala. 442, supra. We are then constrained to hold, that a bona fide purchaser, for a valuable consideration, at a public sale made by an executor de son tort, aquires a right of possession in a personal chattel which he may maintain and defend against every one but the proper legal representative of the testator; and that, furthermore, he acquires an actual possession as against him also, of which he cannot be lawfully deprived against his will except by suit.

The necessary conclusion from these premises is, that the interest or right which an administrator acquires under such circumstances is a right of action only, what is called a chose in action, when we mean to speak of it as property, as something that has value, like a promissory note in its general nature, though differing in some respects. 2.

The question now remains, What are the rights and powers of an executor or administrator respecting the choses in action of his testator or intestate 1 Can he compromise or settle them without bringing suit 1 We do not understand the doctrine to be questioned on cither hand, that an executor or administrator in this State has all the rights and powers which he has by the common law, except so far as those rights and powers have been modified or abridged by statute.

But the power of an executor or administrator to compromise actions pending in favor of, or rights of action belonging to the testator or intestate, by the common law, if done hona fide, is not denied, and this power has not been affected by statute in Alabama.

It can hardly be insisted that the statute (Clay’s Digest 223 § 13) which directs the mode in which executors and administrators shall proceed to effect a sale of the “ personal estate of any testator or intestate,” and directs that it shall be done publicly, and at a certain place and within certain hours, was intended to embrace"the notes and bonds or open accounts due to a testator or intestate. Such a thing has never been heard of in the country. Much loss could it have been intended to relate to choses in action, whose value would be still more obscure at a public sale.

It follows that an executor or administrator in this State has the power in question, and by necessary consequence the right, to this extent, at least, to transfer by private sale or contract the choses in action over which this power to compromise and settle without suit exists ; for what is the release of an action already begun, or the transfer of a right of action, but a private salo of the benefit or interest to bo derived from it 1 Following up these conclusions we may say, the sale of these slaves by Mrs.

Woolfork was an unlawful conversion of the property of the estate*; yet, by the transaction McKinney was invested with a possession, which could not be lawfully taken away except by suit.

No execution could be levied on them as the property of Woolfork, the testator, and it would amount to a trespass for any to attempt to take them by mere force.— When Nosworthy was appointed administrator of Woolfork, he had in respect to these slaves nothing left in him but a right of action, with several modes of prosecuting that right, either of which he might pursue ; detinue or trover against the person in possession ; trover against the widow Woolfork, or, if the purchase money had been received by her, or her agent, of McKinney, he might waive the tort and bring an action against her for that amount of money of the testator had and received to his use.

Having this right and such an interest and no more, and being-invested by his office and the law with the power, in his discretion, to bring suit or to compromise and settle the claim without suit, he was not absolutely bound to sue and recover the property itself, or have its value ascertained by suit; but, if acting bona, fide, Avithout fraud or collusion, he might settle the claim Avithout suit, and release and discharge this right of action to any of these parties for a valuable consideration.

The interests of creditors and distributees require, as Ave feel well persuaded, that executors and administrators should have such a povver.— A judicious and timely compromise Avould often prove highly beneficial to creditors and distributees. The fidelity of the administrator, the bona fides of his conduct in making such settlement or compromise, Avould be always open to inquiry by the parties in interest. These principles, if correct, establish the right of the administrator, Nosworthy, to receive satisfaction from Mrs.

Wool-fork or McKinney, or both, Avithout suit, for the unlawful conversion of the slaves in controversy. He was at liberty to elect whether he would do this or sue, being responsible of course to the legatees and distributees on settlement for the exercise of a sound discretion, and for honest intentions in making such election. The charge given by the court below was in conformity with the foregoing views, as was also the qualification annexed to the charge as requested by plaintiff.

The request of the plaintiff, to charge that he was entitled to a verdict upon the whole evidence, was correctly refused, because, on one material question of fact the testimony was conflicting. We find no"error in the record, and the judgment below is affirmed.