M'Kinnie's ex'rs v. Oliphant's ex'rs

2 N.C. 6

• Court: Superior Court of North Carolina
• Decided: September 15, 1791
• Status: Published

Opinion

Per Williams,

the only Judge in Court, trover, trespass, deceit, or any other action of the like nature, will lie against executors, where the thing itself has been used so as to go into and increase the testator’s estate, so that the benefit thereof comes to the possession of the executor, otherwise where the thing is destroyed, as if a man take my bullock and eat him. The case of Hambly & Trott, in Cowper, is not law; and further, I never knew a case in Cowper to be received as law in our Courts.

Note. — Vide Decraw v. Mone’s ex’rs, post 21. Clark v. Hill, past 308. Avery v. Moore’s ex’rs. post 362. In the last case cited, the article of property for which the action was brought, did not go into and increase the estate of the testator ; but it was decided that that made no difference. The Editor has it from good authority, that the expression attributed to Judge Williams in this case, that he “ never knew a case in Cowper to be received as law in our Court?,” is a mis,’ fake, and was never used by him.