PROBLEMS IN PROBATE AND ADMINISTRATION 317 complained of.^° If, then, the original intermeddler, acting as executor, used the assets in paying valid debts of the estate, the anomalous principles of the general doctrine of executor de son tort seem to have protected the creditors thus paid.^^ And, if assets were sold to pay debts and debts were thus paid, the purchaser should have been protected.^^ Probably, however, these anomalies did not extend so far as to protect a debtor of the estate in payments to the executor de son tort;^ though the debtor logically should have been able to invoke them if the money was used in the proper administration of the estate. Though something might perhaps be said for this curious doctrine under the old English law, there should be nothing left of it under a system which assimilates executors to administrators by giving the court a discretion in their appoint- ment, by requiring them to j&le bonds, and by abohshing the old presumption in regard to the residue of the estate; in short, where the executor takes title not from the will but* from the court.^ Such is the theory of the executor's right in a number of the United States, and in some of our jurisdictions the law of executor de son tort is abolished;^ and in others it is falling into disuse.^® " I Williams, Executors, 10 ed., 195; Mountford v. Gibson, 4 East, 441 (1804). But see Dorsett v. Frith, 25 Ga. 537 (1858). I Thomson v. Harding, 2 E. & B. 630 (1853). ^ Roumfort v. McAlaraey, 82 Pa. 193 (1876); Pickering v. Thompson, 24 Ont. L. Rep. 378 (1911). But see Carpenter v. Going, 20 Ala. 587 (1852); Woolfork ». Sullivan, 23 Ala. 548 (1853). ^ See Lee v. Chase, 58 Me. 432, 435 (1870). ^ I WoERNER, Amer. Law Adm., 2 ed., § 172. ^* Alabama, Code (1907) § 2801; Bowden v. Pierce, 73 Cal. 459, 463, 14 Pac. 302 (1887); Florida, CBmp. Laws (1914) § 2411; Kansas, Gen. Stats. (1915) § 4495; Minnesota, Gen. Stats. (1913) § 8177; Rozelle v. Harmon, 29 Mo. App. 569, 103 Mo. 339, IS S. W. 432 (1888); Dixon v. Cassell, 5 Ohio, 533 (1832); Oregon, Lat^s (1910) § 384; Ansley v. Baker, 14 Tex. 607 (1855); Washington, Codes Stats. (1915) § 971; Wisconsin, Stats. (1915) § 3259. On the other hand, the doctrine has been perpetuated by statute in some states. Georgia, Annot. Code (1914), § 3886; Massachusetts, Rev. Laws (1902), c. 139, §§ 14, 15; Maine, Rev. Stats. (1916), c. 68, § 40; Mississippi, Annot. Code (191 7), § 1768; Nevada, Rev. Laws (1912), §§ 5952-55; New Hampshire, Pub. Stats. (1901), c. 188, § 16; New Jersey, Comp. Stats. (1910), § 2258; North Carolina, Revisal (1908), § 2; Rhode Island, Gen. Laws (1909), c. 312, § 30; South Caro- lina, Code (1912), § 3621; Vermont, Pub. Stats. (1906), § 2860. In Georgia, Nevada, New Hampshire, and Vermont the executor de son tort is liable for double the value of the goods appropriated by him. See references in pre- ceding paragraph of this note. ^* See Rozelle v. Harmon, 29 Mo. App. 569, 578 (1888).
