7 Ky. 307 | Ky. Ct. App. | 1816
OPINION of the Court, by
The original bill in this case was tiled by George S. Smith, claiming title under an entry in the name of John Mos-by, against George Jameson and JamesMartin, holding the elder legal title, derived under an entry in the name of John Jameson.
Smith having died during the progress of the cause, an order was made reviving the suit in the names of his executors, who filed a bill of revivor, which they after-wards, on amotion for that purpose, had leave to amend, and in their amended bill they prayed that the heirs of Smith might be made parties, and tiiat a subpoena should issue against them. A subpoena issued accordingly, but no* return was made on it. In this situation tile cause was heard, and a decree pronounced by the court below against the defendants, w ho l^ive appealed to this court.
Before we examine the merits of the adverse claims, it is necessary to decide whether the executors had a right to revive and maintain the suit in their names for if they had not, as it is apparent from the record that the heirs of Smith were not before the court, and. could not consequently be bound by any decree pronounced in the case, it would be obviously not ordy useless, but improper that the court should express any opinion in relation to the merits ot\ the adverse titles. It cannot be pretended that the- executors could revive and maintain the suit in their names, independent of any right derived to them from the will of their testator; and we apprehend that there can be no doubt that the will in this case does not vest in them such a right. They are authorised by the will to sell and convey the
The decree of the court below must therefore be reversed with costs, and the cause remanded that the order reviving the suit in the names of the executors may he set aside and their bill of revivor dismissed with costs.