Norris v. Collins

Howell, J. Pending the publication of the final account filed by the defendant Collins as dative testamentary executor of John Jerrison, the three particular legatees presented themselves to be recognized as such and put in possession of the property bequeathed to them and suggested that they were entitled to the rents and revenues thereof from the death of the testator, and submitted the same to the court. They were recognized and put in possession, “ reserving their rights, if any they have, to the fruits and revenues of said real estate.” On the next day the account which disposed of the rents to the universal legatee, was homologated. Some months afterward the executor obtained his discharge, and two or three mouths still later this proceeding was taken by one of said particular legatees against him as executor and as agent of two other particular legatees to recover one-third of the said rents, fixed at $800. Collins pleaded his discharge and his want of authority to represent the succession or the special legatees. [294] From a judgment sustaining this ploa the plaintiff has appealed, lie was a party to the mortuary proceedings, and can not treat the two judgments homologating the final account and discharging the dative ■executor as nullities. The record shows that the executor settled with the universal legatee for the rents, and the recourse of plaintiff is not against Collins in his fiduciary capacity under the circumstances. Judgment affirmed.