Sorrell v. Ham

By the Court. Nisbet, J. delivering the opinion. [1.] The plaintiff brought his action of ejectment for the recovery of land, as executor of the last will and testament of John B. Gaudry. It was non-suited, on the ground that the plaintiff’s letters testamentary only gave him power over the goods and chattels, rights and credits of the testator, and therefore, he could not recover lands. Whilst we sustain the judgment of the Court, we do not sanction two propositions which seem to have been ruled by the Court. The first is, that the executor cannot bring ejectment for lands. We hold that he can, but that his right to recover, depends upon the will. The right of recoveiy will depend upon the fact, whether the" lands have been bequeathed at all or not — they may not be. In that event, no right of action passes to the executor, and it may depend upon the character of the .bequest of lands in the will. The will is, therefore, án indispensable part of his title, and must be produced on the' trial. It was not produced, and for that reasoh we-hold that the plaintiff was necessarily non-suited. On this ground alone, the judgment is affirmed. [2.] The other proposition is, that the plaintiff is not entitled to recover lands, because the letters empower him to administer [58] only the goods and chattels, rights and credits of the deceased. It' is not necessary, to enable the executor to administer the real estate, that there should be an express grant of power to that effect in the letters. It would be better that they contain such a grant; but under our laws, the right to execute the will, both as to personalty and realty, follows in the general grant of power to administer the goods and chattels, rights and credits. Prince’s Dig. 225, 233, 241. 1 Kelly, 540. 3 Kelly, 105. Judgment affirmed.