Opinion
(1793.)
Thomas Hudson, executor of John Hudson, brought trover against Mary Hudson, and counted that the testator was possessed of the goods, and made him executor, and died; afterwards they came to the hands of the defendant, and the plaintiff suscepit executionem testamenti; afterwards the defendant converted the goods to her own use. The defendant demurred generally, quia the plaintiff does not show that he ever was possessed of them, and the trover and conversion is after the testator's death.
Jermyn, contra. The possession of the testator is sufficient to maintain trover. 5 Rep., 27, Russel's case. Executors shall have trover on a conversion, in vita testatoris. It was so resolved also in this court. T. 11 Jac., Jermyn v. Beet.
The naming himself executor is only surplusage; he had a possession in law, which is sufficient. If a man gives me goods which are at York, and before they come to my possession you commit trespass on them, I shall have trespass; quia the property carries the possession in personal chattels.
WHITLOCK, J., e contra. And a number of the clerks said that the usual form of the declaration in such cases is otherwise.
Adjournatur. Afterwards in the same time, judgment was given for the plaintiff. 1 Cr., 377.