John T. Walker et als., Appellants, vs. George F. Drew et als., Appellees, 20 Fla. 908

Mr. Justice Westcott delivered the opinion of the court. An analysis of this case presents a bill by sureties of a deceased intestate against three parties alleged to be inter-meddling with his estate, and with having custody of the assets thereof without lawful authority, these three persons being John T. Walker, George U. Walker and Elizabeth H. McCallum, the widow of the deceased, the allegation against Mrs. McCallum being that she is improperly in possession of or controlling an asset of the estate, a debt to the estate by Charles H.

Jones, and a creditor of the deceased alleged to have received payment of his claim when not entitled to any priority as against plaintiffs. Ho relief is prayed against this satisfied creditor, and we do not see how there could be as the payment of his debt was precisely'the thing which plaintiff himself seeks here, he being no more than a simple creditbr.

There are sufficient assets remaining to pay the sureties’ debt “if a proper and judicious management or administration of the assets of said estate be had and immediate steps are taken for the benefit thereof.” Giving the surety here the standing of a creditor of the deceased intestate, principal, and we think he certainly has a provable claim against the estate, the debt of the principal being due and unpaid ; what are the equities attached to that relation as applicable to the subject matter of this suit ? Where is the equity of the creditor here to have a receiver appointed to administer this estate ?

Whatever may be the liability of a person, who, without lawful authority, either as executor or administrator, converts or collects assets of the estate to the legal administrator or personal representative, or to a creditor, this wrongful executor has no authority to collect the ,debts. He is not entitied to an action, has no right to reduce assets and his own liability is substantially founded upon tort. Again, the creditor of an intestate estate has no direct action against its debtors to appropriate the debt to the satisfaction of his claim.

If he attempts this he becomes himself pro tanto an executor de son tort, if there be such a thing as au executor de son tort in Florida. Besides he can be entitled to no particular priority against any debt under our statute. He has no lien if he gets a judgment, not being one of. the claims to which the statute gives priority. It follows, therefore, that neither an executor de son tort, if there be such ,a relation in Florida, nor a creditor, nor each combined have an equity to sue for and recover the debts due an intestate estate or to control the debts of such estate.

If this be so, and that it is so we have no doubt, where is their equity to have a receiver to do these acts ? ¥e are entirely satisfied that a creditor cannot maintain such a bill as this. "What kind of a bill he can maintain, and what are his rights against an intermeddler for assets in his hands or illegal administration or appropriation of those collected by him, is a question which does not arise here.

The order overruling the demurrer is reversed and the case will be remanded with directions to allow the demurrer and dismiss the bill without prejudice to any other proceeding in equity or at law which plaintiffs may institute, or for any relief different from that sought to be had in this case.