The plea was ne unques executor ; and evidence was offered that, at the time the defendant below committed the acts for the doing of which he was sought to be charged as executor de son tort, there was a lawful administration. The charge of the court was, in effect, that although there was a lawful administrator, if the defendant, in collusion with him, received and paid out the funds, with intent to defraud the creditors of the estate, he could be charged as executor in his own wrong.
We agree that, where one in his lifetime makes a'fraudulent conveyance of his property, the person to whom the conveyance is made may, after his death, be charged as executor, although there is a lawful representative ; and the reason is, that the latter, being bound by the fraud of his testator or intestate, cannot be charged at all in his representative capacity. — Densler v. Edwards, 5 Ala. 31; Marler v. Marler, 6 Ala. 367. But this doctrine has no application to cases of collusion between the rightful representative and a third person, where there is nothing to prevent the former from being-held liable.
It is urged, however, on the part of the appellee, that the *355evidence in the case shows, that there was no lawful representative until after suit brought; and one of the appellant’s witnesses does state that the intestate died in October 1841, while the letters of administration were granted in April of that year. But this was not conclusive : this witness may have been mistaken, and it was for the jury to decide. The charge did not place it upon that ground, but told the jury, that, although there was a lawful administrator at the time the defendant collected the money, he was responsible if fraud was made out. If there was such an administrator, the defendant would have been liable to him, but not to the creditor, unless, indeed, he claimed to act as executor, in which case some of the old cases hold that he would be liable, on the ground that he is not allowed to deny the character he has taken upon himself (Read’s case, 5 Co. 34); but this has since been denied to be law by Lord Kenyon, in Hall v. Elliot, N. P. C. 87, and Sir Thomas Plummer, in Tomlin v. Beck, 1 T. & R. 438. What we have said will-be sufficient to dispose of the case on another trial.
Judgment reversed, and cause remanded.