Elmore v. Elmore

¶1 concurring zvit'h Justice Gary. I am 'conscious that an example is to be set, but I am ready to ;assist in setting such example. I cannot conceive that a man who takes my mule, then dies, having named an executor, which executor takes possession of my mule as assets of his •testator’s estate, to be by him administered, and upon my ■demand for my mule declines to surrender the mule to me, :and when I sue him to recover my mule, in a magistrate’s •court, his reply is, “You cannot sue me in claim and delivery,” will be protected by law. If the executor surrendered ffhe .mule on my demand, without suit, will not he have to *293 account for such surrender to the legatees of his testator? If the executor refuses to surrender, must I stand by and take no steps to recover my mule? If the executor had been the original tort feasor, I admit he could plead that his taking of the mule was personal act, and in no manner connected with his testator’s estate. But the testator took my; mule, and died with said mule in his possession. His executor succeeds to his testator’s possession, in his representative character. When I demand my mule and I am refused possession of him by such executor, on the ground that the mule belonged to the estate of his testator, of course I must sue him as executor. I concur in the opinion of Judge Gary and the judgment of reversal.