¶1delivered the Opinion of the Court.
¶2The single question brought up for decision in this ease is, whether an action of covenant can be maintained against an executor, for a breach of one of the express conditions of his fiducial bond, in unreasonably withholding from the relator a specific legacy ?
¶3As the law vests the title to all the testator’s chatties in his executor, as a trust fund, for the payment of his debts and legacies, the right of a legatee to a chattle, specifically bequeathed, is merely equitable and contingent, depending on the executor’s consent, which a court of equity alone can compel him to give.
¶4And, therefore, no action at law can be maintained for the recovery of either a specific or pecuniary legacy, until the executor shall have waived his prior right thereto, and thus passed the legal title to the legatee. But even according to the common law, a legatee who, by the executor’s assent or otherwise, has acquired a legal right to the thing specifically bequeathed, may recover it, in an action of detinue, from the executor himself, or if there had been a promise to deliver it to the legatee, he may recover the value of it in damages in an action for the breach of that undertaking.
¶5Then, upon common law principles, a legatee may maintain an action against a recusant executor for damages for a breach of his express covenant to pay the legacy, *127even though he could not, in an action of detinue, recover the specific thing bequeathed.
¶6One of the conditions of an executorial bond, as prescribed by our local law, is that the executor shall pay all legacies as far as 'assets may enable him. And surely an action may be maintained for damages for a breach of that express covenant, as well as for any breach of any other species of covenant; and in such an action, the. value of the legacy may be recovered in damages.
¶7But to remove all doubt, the Legislature has expressly authorized a suit for any breach of an executor’s bond; Stat. Law, 660. And, of course, this suit may be an action at law, as this Court has often and with unquestionable propriety, hitherto decided: See Jackson et al. vs The Bourbon Justices, 2 Bibb, 292, and Moore vs Waller’s heirs, 1 Marshall, 489.
¶8It is, therefore, considered that the judgment of the Circuit Court be reversed and the cause remanded, with instructions to overrule the demurrer to the declaration.