persons of full age and sound mind, or to determine that a living man is dead, and thereupon undertake to dispose of his estate. A court of probate must indeed inquire into and be satisfied of the fact of the death of the person whose will is sought to be proved or whose estate is sought to be administered, because, without that fact, the court has no jurisdiction over his estate; and not because its decision upon the question, whether he is living or dead, can in any wise bind or estop him, or deprive him, while alive, of the title or control of his property. As the juris diction to issue letters of administration upon his estate rests upon the fact of his death, so the notice given before issuing such letters assumes that fact, and is addressed, not to him, but to those who after his death may be in terested in his estate, as next of kin, legatees, creditors, or otherwise. Notice to them cannot be notice to him, because all their interests are adverse to his. The whole thing, so far as he is concerned is res inter alios acta. Next of kin or legatees have no rights in the estate of a living person. His creditors indeed, may, upon proper proceedings, and due notice to him, in a court of law or of equity, have specific portions of his property applied in satisfaction of their debts. But neither creditors nor pur chasers can acquire any rights in his property through the action of a court of probate, or of an administrator ap pointed by that court, dealing, without any notice to him, with his whole estate as if he were dead. The appoint ment by the Probate Court of an administrator of the estate of a living person, without notice to him, being without jurisdiction, and wholly void as against him, all acts of the administrator, whether approved by that court or not, are equally void. The receipt of money by the administrator is no discharge of a debt, and a conveyance of property by the administrator passes no title." The notion that a living person can be deprived of his estate by letters of administration, because the probate court has jurisdiction to grant letters upon estates of dead persons, and having decided that the man is dead, he is dead, is funnier than the notion that a son may kill his father and thus capture his estate, but it seems no less unsound, albeit less immoral. The New York court is not quite consistent in its views of " reading into" statutes.
Tort — Selling Glandered Horse. — In State v. Fox, 29 Atl. Rep. 601, the Court of Appeals of Maryland has recently decided that one who sells a horse, fraudulently concealing the fact that he has the glanders, may be held liable in an action for damages for the death of a man who afterwards con tracts the disease in taking care of the horse, pro vided it appears that such is the natural and prob able consequence of contact with such a horse, and that the man was in some way acting for the pur chaser and was not merely an intermeddler or volun
teer. The Court, after citing Thomas v. Winchester, 6 N. Y. 397, and Heaven v. Pender, 11 Q. 1i. Div. 503, said: "Without deeming it necessary to pass upon all of them, or to go to the full extent that Thomas v. Winchester has gone, we are of the opinion that the authorities, and a proper regard for the protection of innocent persons, fully justify us in the conclusion that if a vendor sells any property which he knows to be imminently dangerous to human beings, and likely to cause them injury, to an innocent vendee, who is not aware of the danger, and to whom false representations have been made as an inducement to the sale, he may, under proper allegation and proof, be held responsible, not only to the vendee, but to such person or persons as the vendee may, in the ordinary course of events, call upon to take charge of the property for him." It appears to us that the court go further than Thomas v. Winchester : that was a case in which a manu facturer of medicines put up and sold belladonna in a jar labelled " dandelion," and he was held liable for injuries to the plaintiff, who bought it from a druggist to whom it had come in the course of busi ness. Sir William Brett, in Heaven v. Pender, says of this case, it "goes a very long way," and "I doubt whether it does not go too far." But Sir Frederick Pollock, in his treatise on Torts, regards it as good law, and it is followed in Norton v. Sewall, 106 Mass. 143; 8 Am. Rep. 298. In that case the poison sold under a harmless guise was certain to do mischief. In the principal case the glandered animal was not naturally certain to do mischief, although it was possible. Therefore it seems that the principal case goes even further than the Thomas case. But we are not inclined to dispute its soundness. It seems a not unreasonable extension of the liability of the consequences of fraudulently selling an article that may probably cause infection. If the horse had been sold for food the liability of the seller could hardly be doubted. The New York Court of Ap peals however, in Loop v. Litchfield, 42 N. Y. 351, i Am. Rep. 543, set a bound beyond which they refused to carry this doctrine. A balance wheel, with invisible defects, was sold by the manufacturer to one who bought it for his own use with oral notice of the defects. After some years' use he lent it, and it broke and killed the borrower. The manufacturer was held not liable in damages for his death. The Thomas case was distinguished on the ground that "Poison is a dangerous subject" and the injury was the natural and probable consequence. Heaven v. Pender is cited in Van Winkle v. Am. St. Boiler Co., 52 N. J. L. 240; and Phillips v. Library Co., S5 N. J. L. 307.
