¶1*547The opinion of the court was delivered by
¶2It is a principle of the common law that if a person, without any authority from the deceased, or the ordinary, does such acts as belong to the office of an executor or administrator, where there is no rightful executor or administrator, he makes himself an executor in his own wrong, and subjects himself to all the hazards and liabilities growing out of such an executorship. He is not only liable to the rightful executor or administrator in an action of trespass or trover, but may be sued as executor by the creditors of the deceased ; and there are cases where an executor de son tort, upon the plea of ne imques executor, has been held liable for large debts, when only a trivial amount of property came into his possession. The sixty-eighth section of the probate act of 1821, provides, that, if before granting letters testamentary, or of administration, any person shall embezzle, or alienate any of the goods and chattels or moneys of such estate, such person shall be liable to double the amount or value of the property so embezzled or alienated, in an action brought by the executor or administrator, to be recovered for the benefit of the estate ; and it adds, “ and shall in no other way or manner be liable therefor.”
¶3This statute provides a remedy for the executor or administrator, and takes away the right, at common law, of the creditor to sue the person, as executor, who has made himself chargeable as executor de son tort. The statute enacts what shall be the consequence of those acts, which, at common law, would constitute a person an executor in his own wrong. He is liable to double the amount of the property embezzled or alienated, to the rightful representative, for the benefit of the estate, and though the words, “ and shall in no other way or manner be liable therefor,” are exceedingly broad ; yet, it is manifest that the only object which the legislature had in view, was to abolish the common law right of the creditors, charging a person as executor in his own wrong, for those acts which constituted him such at common law.
¶4It was thought a sufficient protection against the embezzlement of the goods of a deceased person, to subject the wrongdoer to a forfeiture of twice the amount embezzled, without exposing him to the consequences of an executor-*548ship in his oivn wrong; and we think the general words in the statute should be restrained in their operation to that ef-feet, and not to take away from the rightful executor or administrator the common law right of suing the wrongdoer in trespass or trover.
¶5At common law, if the party came into the possession of the property by color of legal title, he could not be charged, it is said, as executor “ de son tort,” though he should be unable to establish such title completely in every respect. Femings v. Jarrat, 1 Esp. R. 335. 3 Bac. Ab. 21. The rightful executor or administrator, in such case, might have trespass or trover. The statute, subjecting the party to pay double the value of the property, is highly penal in its consequences, and should not be applied to a case where he acted in good faith, under color of legal right, supposing he had good title, though it might turn out otherwise. To subject the defendant to the penalty, he must have acted from a wrong motive, and mala fide. If it is otherwise, the representative of the deceased must be satisfied with his action of trespass or trover. Under this view of the statute, the parties are entitled to have ¡their rights tried, and the question as to the motive and intent of the defendant should have b'een distinctly presented to the consideration of the jury-
¶6It is also true, that, under this view of the subject, as the plaintiff elected to go for the penalty under the statute, when he might have brought his common law action, he must be subjected to the same rule of evidence that obtains in other actions on penal statutes. He must have made what is calledj%K proof, and was not entitled to recover on merely a preponderance of testimony. Brooks v. Clayes & Morse, 11 Vt. R. 37. For these reasons, we think the judgment of the county court must be reversed and the cause remanded for a new trial.