Opinion
November, 1798.
This was trover for 408 bushels of corn, thirteen stacks of fodder, and thirty bushels of potatoes.
Burton Waples, the grandfather of the plaintiff, by his last will devised certain lands to the plaintiff and appointed the wives of the defendants executrices of his will. The testator died while the corn etc. were growing upon the lands devised to the plaintiff. The corn etc. were taken by the defendants.
Wilson, for the plaintiff, contended that the emblements passed by the devise and cited Cro.Eliz. 61, 2 Com.Dig. 142, Co.Litt. 55b note.
Ridgely and Bayard, for defendants, admitted the law was as contended in England but argued that it was against the entire system of the law on the subject in this state and also against the practice. That not only the emblements, but the lands themselves as chattels, in the first instance went to the executors for the payment of debts.
But the Court held that the lands passed to the devisee by the will and also the emblements, and that the executors had no right to take the corn growing at the time of the testator's death.
Verdict for plaintiff.
NOTE. The defendants obtained a rule to show cause why the verdict should not be set aside upon a misdirection of the Court.