Reports of Civil And Criminal Cases Decided By the ..., volume 7; volume 30
Reports of Civil And Criminal Cases Decided By the ..., volume 7; volume 30
Kentucky. Court of Appeals, James Hughes, Achilles Sneed, Martin D. Hardin, George Minos Bibb, Kentucky (District). Supreme Court, Alexander Keith Marshall, William Littell
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Stephen80!v. The question then is, how far has the act of 181 1, - I Dig. 5S4^ changed the law, which wonkl, but for that act, govern the case? The 4th section of the act provides that ^4he heir or heirs of a deceat^ed person shall be entitled to receive the benefit of all and every of the provisions aforesaid, relating to executors and administrators, as far as the same are applical)le." It becomes necessary, therefore, to en- quire into the law relative to executors and admin- istrators, in o...rder to ascertain the true applicatioQ . of the statute of 1811, to the case of heirs. The obligation of a testator does not devolve upon the executor, so as to make it the executor'f debt. The executor being a mere fiduciary, he la pro^ierly suable in the de$inet only. The law is oth- erwise in regard to heirs. When an exeeutor or ad- ministrator faili to plead, or pleads any plea except such as are knowingly false, the judgment slioiild be rendered de bonis ttstaiorisj because the presumption is in favor of his honesty, and therefore it should be cx])ected that he will (after the justice of the de- mand has been settled by judgment) surrender th« goods in satistaction.
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