4 Ky. 604 | Ky. Ct. App. | 1809
OPINION of the Court, by
The allegations of error, which are worthy of consideration, 'mV°lve b,Ut three propositions.
1st- That letters testamentary granted in the state of Ohio, are insufficient to maintain an action in the cha-racier of executors in the state of Kentuckv. 2uly. 1 hat a demand, other than the writ, is necessary to the support of an action of detinue,
3dlv. That a slave does no: pass to executors, except m default of personal assets ¡or payment of debts, but descends to the heirs ; therefore, that to maintain deti-n for a siave the executors were bound to aver and ’ - . r i , . and prove a deficiency of otner assets to pay the just debts of the testator.
The first is an abstract proposition, not pertinent to this case. The letters testamentary are not made part of the record by oyer, nor exhibited by any bill of except;on . moreover, the appellant having pleaded to the action of the writ by the appellees as executors, he could not thereafter question their capacity to sue as such.
The second proposition was perhaps supported in some degree by the decision in Cobb vs. Gordon, in 1807; but that point was considered and overruled in Tunstall vs. M’Clelland
By the thirty-seventh section of the act of 1798 concerning slaves — (2 vol. Litt. p. 120) they are made assets in the hands oí the executors, and not in the hands of the heirs. The executor has therefore an absolute right to the possession, his sale would pass an absolute title ; the vendee could not be required to shew that the debts of the testator required the sale, as an essential to his title. And it was resolved accordingly in Stamps vs. Beatty
Upon the whole, it seems to the court that there is no error in the judgment complained of.
Judgment affirmed.
Ante 1S6.
Ante 157,
Har. 337.