3i6 HARVARD LAW REVIEW find his appointment. Thus grew up, as much as a protection to those interested as a penalty on the wrongdoer, the essential fea- tures of the anomalous doctrine of executor de son tort: that a creditor, legatee or next of kin after debts paid could proceed directly against the intermeddler as executor." In such action he was named as executor generally.^ Accordingly he could so plead that he was only liable to the extent of the assets that came to his hands.^^ And he could show under the plea of plene administravit that he paid debts of equal or of superior degree to that of the plaintiff.^^ Whether the wrongdoer was chargeable by the executor merely as a tortfeasor or had inciured the liability of an executor de son tort when there was a duly appointed repre- sentative in existence at the time of his acts seems to have de- pended upon whether the wrongdoer interfered with the estate as executor.^^ In any event it seems clear that he could plead in mitigation of damages, though not in bar, of the suit of the true ex- ecutor or administrator, payment of debts of the estate." In Coulter's case^^ it was said: "it is clear, that all lawful acts, which an executor de son tort doth, are good." The difficulty with this statement is that it is not clear what acts are "lawful acts." It must be remembered also that an executor de son tort did not have all the rights of a true executor. He could not, for instance, retain for his own debt,^* nor if the estate was insolvent, prefer one creditor to another of equal degree." Apparently the act of the wrongdoer was good only if it was such an act as the true executor was bound to perform, subject to the qualification that the intermeddler was acting as executor, and to a greater extent than the solitary act " I WOERNER, AmER. LaW AdM., 2 cd., § 193. ^ CotJLTER's Case, s Co. 31 a. " Dyer, 166 marg. " Oxenham v. Clapp, 2 B. & Ad. 309 (1831). " I Williams, Executors, 10 ed., 186, 187. " Roggenkamp v. Roggenkamp, 68 Fed. 605 (1895); Brown v. Walter, 58 Ala. 310 (1877); Leach v. Prebster, 35 Ind. 415 (1871); Tobey :;. Miller, 54 Me. 480 (1865); Glenn v. Smith, 2 Gill & J. (Md.) 493 (1830); Gay v. Lemee, 32 Miss. 309 (1856); Len- derink v. Sawyer, 92 Neb. 587 (1912); Howell v. Smith, 2 McCord (S. C.) 516 (1823); Kinard v. Young, 2 Rich. Eq. (S. C.) 247 (1846); McElveen v. Adams, 94 S. E. 733 (S. C.) (1917); Oxenham v. Clapp, 2 B. & Ad. 309 (1831); Am. & Eng. Ann. Cas. 1914A, 263, note. "S Co. 306. " Alexander v. Lane, Yelv. 137. M I Williams, Executors, 10 ed., 195.
