Benton v. Dutcher

3 Day 436

Opinion

By the Coitkt.

The legacy to the wife of Elisha Wells was payable in cattle or sheep at appraisement, at two equal payments, the first of which fell due in November■, 1806. The defendant, as executor of the last will of Ruluff Butcher, the testator, was holden to pay the legacy when due. The plaintiff obtained judgment on his suit against Elisha Wells, and on the execution thereon the officer made return, that on the 8th day of May, 1806, he demanded of the executor, as trustee and debtor to said Wells, the property of said Wells in his hands, to satisfy the execution, and that he refused to show or deliver it. This demand was made before any pan of said legacy was due from the executor. No other demand was ever made. The plaintiff declares, that the defendant, executor as aforesaid, has become liable to pay and satisfy the judgment against Wells out of his own estate, and demands judgment for the same against him.

No such demand was ever made on the defendant as obliged him to tender the cattle and sheep, mentioned in the legacy, to the officer on the execution, or would subject him, on failure of such tender, to the payment of the amount of said legacy, or the moiety thereof, to the plaintiff' in money, from his own proper goods and effects. The facts will not warrant the rendering of such judgment against him in this ease. For these reasons, we consider the charge to the jury incorrect, and advise a new trial of the case.

New trial granted.