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THE

The counsel for the captors have claimed their costs and expenses, on the ground that there was probable MARY, cause of capture.

This claim is sustained by the Court. Further proof has been required, and the lateness of the period at which the Mary was found on the ocean, justified a suspicion that her case was not one to which the instructions of the president extended.

The sentence of the Circuit Court condemning the cargo of the Mary is reversed, and the cause is remanded to that Court with directions to dismiss the libel so far as respects the cargo, and to restore the same to the Claimants, and to allow the captors their reasonable costs and expenses.

DOE, LESSEE OF LEWIS AND WIFE,

บ.

M.FARLAND AND OTHERS.

STAFFORD,

MASTER.

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Absent....ToDd, J.

ERROR to the Circuit Court, for the district of Ken- It is not neces tucky, in an action of ejectment.

sary that an executor of a will, made in

The case was submitted to the Court at last term, by Virginia, devising to the WICKLIFFE, for the Plaintiffs in error, and G. M. BIBB, executor, land for the Defendants, upon notes of an argument, and was in Kentucky, argued at this term, by C. LEE, for the Plaintiffs in error. letters testa

February 27th. Absent....TODD, J.

should take out

mentary in Kentucky, to enable him to maintain an

MARSHALL, Ch. J. delivered the opinion of the Court ejectment for

as follows:

the land in
Kentucky.
If the Plaintiff,

in his declara-
tion, claims

This is a writ of error to a judgment rendered in the Circuit Court of the United States for the district of the whole Kentucky, in an ejectment by the Plaintiffs in error, tract, a deed, against the Defendants.

showing that he has only an

WIFE

บ.

M'FAR

DOE, At the trial of the cause, the Plaintiffs produced and LESSEE OF read in evidence, a patent from the commonwealth of LEWIS & Virginia, granting certain lands therein described lying in the county of Nelson, in the now state of Kentucky, to John May, John Banister, Kennon Jones, Thomas Shore and Christopher M.Conico. He then offered in evidence the last will and testament of John May, de& OTHERS. ceased, which contained this clause, "I give and devise my land to my executors, herein after named, and to undivided inte- the survivors and survivor of such of them as may act, rest in the "and their heirs, for the purpose of selling as much theregiven in evi-❝ of as will pay all my debts."

LAND

tract, may be

dence.

66

This will was proved and admitted to record according to the laws of Virginia, while Kentucky was a part of that state, and is duly certified by the proper authority. The Plaintiff, Ann Lewis, (wife of the other Plaintiff, Thomas Lewis,) who was an executrix named in the will of the said John May, alone qualified as executrix, and took upon herself the burthen of executing the said will; but she did not qualify, and did not obtain her letters testamentary until after Kentucky had become an independent state.

The counsel for the Defendants, objected to the admissibility of the will and certificate thereto subjoined, because the said Ann had only qualified, and sued out letters testamentary in the state of Virginia, and not in the state of Kentucky where the land lies. The Court sustained the objection, and the will was not permitted to go in evidence to the jury. To this opinion an exception was taken. There was also a second exception taken on the same rejection of evidence, which depends entirely on the correctness of the first opinion, and therefore need not be particularly stated.

It has been decided in this Court that letters testamentary give to the executor no authority to sue for the personal estate of the testator out of the jurisdiction of the power by which those letters are granted. But this decision has never been understood to extend to a suit for lands devised to an executor, In such case the executor sues as devisee. His right is derived from the will, and the letters testamentary do not give the title. The executors are trustees for the purposes of the will.

DOE,

WIFE

v.

M'FAR

LAND

This will may be considered as requiring that the executors shall act to enable themselves to take under the LESSEE OF devise to them; but when the condition is performed, LEWIS & those who have performed it, take under the will. That the executrix took upon herself that character after the separation of Kentucky from Virginia, is of no consequence. When she did take it upon herself, the condition on which the devise was made, was performed, and & OTHERS. she took as devisee under the will; and the act consummating her title, had relation to the time of its commencement, which was before the separation of the two states. Were it even necessary, which is not admitted, to record this will in Kentucky, that objection was not made to the instrument, and therefore the Court cannot suppose it to exist. The will was rejected because the executrix had not qualified in Kentucky, and this objection is not deemed a valid one.

An objection was also taken to a deed, which was of fered in evidence, on the ground of an alleged variance between it, as proof, and the allegations in the declaration. The deed was not permitted to go in evidence to the jury; and to this opinion, also, an exception was taken.

If the objection to

The variance is not pointed out. the deed is, that it conveys only an undivided interest, while the declaration claims the whole tract, the objection ought not to have been sustained; but on the propriety of rejecting the deed it is not necessary to give an opinion, since the judgment must be reversed on the first point.

Judgment reversed, and the cause remanded with di rections to grant a new trial and to permit the will to be read in evidence.

1

CLARK'S EXECUTORS v. VAN RIEMSDYK.

Absent....TODD, J.

1815.

Feb.

224.

of one Defen

THIS cause was this day argued by BURGESS and The answer STOCKTON, for the Appellants, and HARPER, for the Ap-dant in chanpellee, in the absence of the reporter. 20

VOL. IX.

CLARK'S
EXR's.

บ.

VAN

RIEMS

DYK.

February 28th. Absent....TODD, J.

MARSHALL, Ch. J. delivered the opinion of the Court as follows:

This is an appeal from a decree made in the Circuit Court of the United States for the district of Rhode

cery is not evi- Island.
dence against
his co-defen-

dant nor is

although he

The Appellee filed his bill in that Court, praying that his deposition, the Appellants and James Munro, Samuel Snow, and had been dis- Benjamin Munro, late merchants trading under the firmcharged under of Munro, Snow and Munro, might be decreed to pay the act of as him the amount of a bill of exchange drawn in his fasembly of Rhode Island Vor at Batavia, by Benjamin Munro, at nine months (of 1757) f from sight, on Messrs. Daniel Crommelin and sons, mercontracts pri- chants, Amsterdam, for the sum of 21,488 guilders on or to the date account of advances made by the said Riemsdyk for charge, and al- the use of the Defendants in the Circuit Court.

all debts and

of the dis

though the debt in suit was a debt

In the year 1805, John Innes Clark and Munro, contracted pri- Snow and Munro, being joint owners of the ship Pator to such dis- terson in equal moieties, projected a voyage to Batavia, charge, the debt having and appointed Benjamin Munro, one of the house of been contract- Munro, Snow and Munro, supercargo. The ship cared in a foreign ried out some goods on account of the owners, and other An answer in goods on account of different persons, the whole to be chancery, alinvested in a return cargo, on the profits of which the though positive, and di- ship owners were to receive 45 per cent. instead of rectly respon- freight.

country.

sive to an allegation in the bill, may be The bill charges that the supercargo was empowered outweighed by eiren stances, verbally, in case of a deficiency of funds at Batavia, to especially if it load the ship with a return cargo, to take up money on be respecting the joint account of the owners, and, if necessary, to in the nature draw bills of exchange therefor on Messrs. Daniel of things can- Crommelin and sons, of Amsterdam, or on the owners.

a fact which,

not be within

the personal

the Defendant.

knowledge of The Patterson returned in the spring of 1806, with a A denial by cargo derived from the funds taken out in the outward

the Defendant Vo

that his testa

tor gave au

voyage.

thority to A. In March, 1806, the Patterson again sailed to Batato draw a bill via on a voyage in all respects similar to the first. That of exchange, is not such an an- part of the cargo which was furnished by the owners

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EXR's.

บ.

VAN

DYK.

consisted of wines and some other inconsiderable arti- CLARK'S cles. Being unable to sell the wine in Batavia, the supercargo placed it for sale in the hands of Mr. Van Riemsdyk, the Defendant in error. Rather than return without filling the vessel for the owners, he drew RIEMSbills on them to the amount of $2,389 89; and also drew on Messrs. Crommelin and sons, merchants of Amsterdam, the bill for which this suit was brought. swer to an aThe bill is drawn by Benjamin Munro in his own name, such authority, but it contains a direction to charge the same to John as will deprive Innes Clark and Munro, Snow and Munro, merchants the Complai of Providence, Rhode Island, North America. Of all medy; unless these proceedings the owners were regularly informed the Defendant by letter from Benjamin Munro, their supercargo.

pro

verment of

nant of his re

also deny the subsequent assent of his tes tator to the drawing of

The ship returned safe in March, 1807, and the ceeds of the cargo purchased by these bills were receiv such bill. ed by the owners. The bills drawn on the owners were duly paid; but no provision was made for that drawn is equivalent on Daniel Crommelin and sons.

For a subse quent assent

to an original authority.

Semb: that a

der the act of

ties, contracts

the time of

surrender of

In May, 1807, the ship proceeded on a third voyage discharge unto Batavia with Benjamin Munro again supercargo assembly of The owners appear to have relied on the wine placed in Rhode Island the hands of Van Riemsdyk on the second voyage, for (of 1756) from producing the funds with which to procure their part of all debts, duthe return cargo. In June, 1807, Munro, Snow and and demands Munro became insolvent; and, according to the laws of outstanding at Rhode Island, obtained a certificate discharging them such disfrom the claims of their creditors, so far as such dis- charge, upon charge could be affected by a law of the state. They all the debtor's had previously transferred, for a valuable consideration, property, will to John Innes Clark, all their interest in the ship, the him against a return cargo and the accruing freight, the whole of debt contractwhich came into his possession on the return of the vesed in a foreign sel. In December, 1807, the bill was presented to Messrs. Daniel Crommelin and sons, and protested for non-acceptance; and in October, 1808, it was protested for non-payment. Neither Clark nor Munro, Snow and Munro had any funds in the hands of Messrs. Daniel Crommelin and sons.

John Innes Clark departed this life in November, 1808, having first made his last will and testament, of which the Plaintiffs in error are executors, who have

not protect

country.

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